Balbir Kaur v. State Of Punjab
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# ) The prosecution story, as it emerges from the report under Section 173 Cr.P.C. is that Jasdip Kaur (it may be noted that in police papers, her name has been mentioned as Jagdip Kaur at some places and Jasdip Kaur at some places) was a student of B.A. II year in a college at Adampur, District Jalandhar. The accused Kuldeep Singh, resident of village Bhagowal, was friend of Gurjinder Singh, brother of complainant-Jasdip Kaur. Accused Kuldeep Singh told Gurjinder Singh about the matrimonial alliance of complainant-Jasdip Kaur and assured him that one person Gurinder Singh s/o Jasmer Singh r/o village Charian, P.S. Sadar, Ropar, District Ropar, is permanently settled in Italy and was currently staying in his village and he was unmarried. On the assurance of accused Kuldeep Singh, parents of complainant married the complainant with accused Gurinder Singh (since proclaimed offender) on 23.02.2000 by way of
Anand Karaj ceremony. Before the marriage, Jasmer Singh accompanied by his wife Jasmer Kaur, Gurinder Singh and Balbir Kaur and accused Kuldeep Singh had come to the village of the complainant to see her. After the marriage, on 23.02.2000, the complainant was to go to her in-laws house at village Charian, but Gurinder Singh took his bride to the house of accused Balbir Kaur at village Sallarpur. Accused Balbir Kaur is the wife of maternal uncle of Gurinder Singh. The complainant alleged that a conspiracy was already hatched in this regard and in the house of Balbir Kaur at Village Sallapur, the complainant came to know that Gurinder Singh was already married with a lady, namely, Jasbir Kaur of village Kubaheri and was having a nine years old son.
The complainant asked accused Gurinder Singh about the said marriage, upon which Gurinder Singh, Balbir Kaur and Kuldeep Singh (both appellants/accused) started threatening the complainant. The complainant remained in village Sallapur for 2-3 days, where accused Gurinder Singh (PO) committed rape on the complainant against her wishes. The complainant told Gurinder Singh that he had ruined her life by fraud, upon which Gurinder Singh informed her that he was going back to Italy on 28th/29th February, 2000 and he had played the fraud and she may do whatever she liked. On 26.02.2000, the complainant secretly left Sallapur and reached her village and narrated the entire occurrence to her parents and brother.
It was also alleged that the parents of the complainant had given one gold chain weighing one and half tola, one ear-ring weighing one tola, one ring weighing half tola, one bracelet weighing two tolas to accused-Gurinder Singh.
took away all the ornaments from the complainant on the first night of the marriage. With these broad averments, a complaint has lodged by the complainant on 29.02.2000 and upon this, a formal FIR Ex.PA/2 was registered at Police Station Sadar Ropar. During the investigation, accused Gurinder Singh left for Italy and was declared as proclaimed offender. The police had presented the final report under Section 173 Cr.P.C. against Jasmer Singh and Jasmer Kaur (parents of Gurinder Singh) and Balbir Kaur and Kuldeep Singh (both appellants/accused).
After the presentation of challan, the accused were charge sheeted under Section 120-B IPC. The accused/appellants were ordered to be charge sheeted under Section 495/114, 496/114, 343, 506, 376 read with Section 109 IPC. The accused pleaded not guilty and claimed trial. In support of the case of the prosecution, Jasdip Kaur was examined as PW-1. She supported the allegations levelled by her in the FIR Ex.PA/2. However in her cross-examination, she stated that she could not tell the name of the Granthi (Priest), who performed Anand Karaj. Her marriage with Gurinder Singh was not registered. She could produce receipts for purchase of gold given to her in the marriage. She further stated that Balbir Kaur had two sons and two daughters, but she did not know their names.
She did not know the name of daughter of Balbir Kaur, who told her about the first marriage of accused Gurinder Singh. They did not see the documents regarding the permanent residency of Gurinder Singh in Italy. Photographs of the marriage were taken. She further stated that she did not know at which time she reached village Sallapur after marriage.
that it was evening time. Since she had come to Sallapur for the first time, she did not know the route. She was not aware if her parents or brother inquired about the family of Gurinder Singh from his village before the marriage. Before marriage, she had not seen Kuldeep Singh. Before marriage, her parents had taken her consent for the marriage and Kuldeep Singh never talked to her directly. The prosecution further examined PW-2 Gurjinder Singh, brother of the complainant, who deposed on similar lines. However he admitted that the name of Raja was Rajwinder Singh Gill and he came in contact with Rajwinder Singh Gill, when he planned to go to abroad. He further stated that Kuldeep Singh told that they had one vehicle and they should come in the morning. The marriage party came on Maruti car and it was driven by accused Kuldeep Singh.
He did not know the name of the owner of the car. PW-3 Gyan Singh, father of the complainant, also supported the case of the prosecution. However in cross-examination, he admitted that the village of accused Kuldeep Singh was also in Ropar District. Kuldeep Singh had no previous acquaintance with him and he had no direct talk with accused Kuldeep Singh. From 26.02.2000 to 29.02.2000, they had been waiting for the accused, but they did not turn up. They had satisfied themselves on the basis of the information given by Kuldeep Singh. The prosecution further examined PW-5 Jasbir Kaur, wife of Gurinder Singh. She stated that about 10 years back, she was married with accused Gurinder Singh (PO). From the marriage, one son namely Jaspreet Singh was born and the child was now living with her father-in-law at village Cherian.
< the home. Her husband used to harass her and turned her out about three years back and he was living in Italy. No divorce had taken place between her and her husband. Now she had come to know that her husband Gurinder Singh married complainant Jasdip Kaur on 23.02.2000. The prosecution further examined PW-6 Jarnail Singh, father of Jasbir Kaur and he deposed on similar lines. PW-7 Jatinder Nath, Draftman prepared the site plan Ex.PD under his signatures. The prosecution further examined PW-9 DSP Raminder Singh, who received the complaint Ex.PA from the complainant and it was read over to her and after admitting the contents as correct, she signed it. He made the endorsement Ex.PA/1 and sent it to the police station, on which the FIR Ex.PA/2 was recorded. He conducted the initial investigation in the present matter. The prosecution further examined PW-10 Dr. Dharam Singh, who conducted the medico legal examination on the person of the present complainant.
After the prosecution evidence was completed, the statements of the accused were recorded under Section 313 Cr.P.C. Accused-appellant Balbir Kaur stated in her statement under 313 Cr.P.C. that she had attended the marriage of Gurinder Singh and thereafter she came back to Ropar. They did not go to Sallapur and all the allegations were incorrect and he was falsely involved. Similarly accused-appellant Kuldeep Singh had taken up the defence that accused Gurinder Singh had hired his vehicle and he had been involved in the case falsely. The accused did not lead any evidence to prove their defence.
After the presentation of challan, Jasmer Singh and Jasmer
Kaur (parents of Gurinder Singh) and Balbir Kaur and Kuldeep Singh (both appellants) were tried by the learned trial Court. However vide the impugned judgment and order passed by learned trial Court, accused Jasmer Singh and Jasmer Kaur (parents of Gurinder Singh) were ordered to be acquitted, whereas the present appellants were convicted and sentenced as mentioned above, leading to the filing of the instant two appeals before this Court.
Learned counsel for the appellants vehemently argued that the appellants have been wrongly convicted under sections 495/114 IPC and 496/114 IPC. In fact, it was necessary for the prosecution to establish that at the time of the offence, accused Gurinder Singh was already married. The prosecution was under a legal obligation to establish that accused Gurinder Singh was already married to PW-5 Jasbir Kaur and later on, he performed second marriage with complainant Jasdip Kaur (PW-1). To prove the said facts, the prosecution was also obliged to show that both the marriages had been duly performed in accordance with the religious rites applicable to the form of marriage of the parties. The said submissions have been opposed by the learned State counsel on the ground that in the instant case Jasbir Kaur was examined as PW-5.
She clearly stated that her marriage was solemnized with accused Gurinder Singh about 10 years back and a son Jaspreet Singh was born out of the said wedlock. She further stated that her husband was living in Italy and no divorce had taken place between her and her husband.
= complainant. Learned State counsel further referred to the crossexamination of PW-5 Jasbir Kaur to contend that even suggestions were put to her to the effect that on 05.02.2000, maintenance was allowed in her favour against Gurinder Singh by the court of learned Additional District Judge, Ropar under Section 24 of the Hindu Marriage Act. She further stated that she had not good relations with her in-laws. These suggestions clearly proved that even the accused side had admitted the factum of marriage of Gurinder Singh with Jasbir Kaur, PW-5 and the findings recorded by learned trial Court in this regard are liable to be upheld by this Court.
I have considered the rival submissions made by learned counsel for the parties and have carefully perused the trial Court record. It is apt to reproduce Sections 494, 495 and 496 of the Indian Penal Court, which are as under:- "494. Marrying again during lifetime of husband or wife.- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.- Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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496. Marriage ceremony fraudulently gone through without lawful marriage.-Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
To prove the offence under Section 495 IPC, it is necessary to prove the commission of the offence, as defined under Section 494 IPC. Whenever a person marries again during the life time of husband or wife, such marriage is void by the reason of its taking place during the life of such husband or wife and is a punishable offence. Still further, if such offence is committed by concealing from the person with whom the subsequent marriages contracted, the fact of former marriage, such act shall be a punishable offence under Section 495 IPC. Similarly, where such a person dishonestly or with fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, can be punished under Section 496 IPC.
Apparently, the expression "whoever ....... marries" must mean "whoever ...... marries validly". To make out an offence under the provisions of Sections 494, 495 and 496 IPC, it must be shown that the accused had validly performed the first marriage with her husband or wife. The bare fact that a man and woman are living as a husband or wife may not give them the status of husband and wife, even though they might portrayed before the society as husband and wife and the society treat them as husband and wife. Apart from that, the parties in the instant case were governed
by the provisions of Hindu Marriage Act. Prior to the enactment of Hindu Marriage Act of 1955, there was nothing in Hindu Law which made a second marriage of a male Hindu, during the life time of his previous wife, void. Section 5 of the Hindu Marriage Act provides for the conditions for a Hindu marriage. It clearly lays down that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of marriage. Still further, Section 17 of the Hindu Marriage Act, provides that any marriage between two Hindus solemnized after the commencement of the Act is void, if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the IPC shall apply accordingly. Consequently, to hold a marriage between two Hindus void in view of Section 17 of the Hindu Marriage Act, two conditions must be fulfilled, which are as under:
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