Krishna Gopal Dwivedi Vs. Prabha Dwivedi
EmailAppeal: Criminal Appeal No. 224 of 2001
(Arising from of SLP (Crl.) No. 3493 of 2000)
(Arising from of SLP (Crl.) No. 3493 of 2000)
Petitioner: Krishna Gopal Dwivedi
Respondent: Prabha Dwivedi
Apeal: Criminal Appeal No. 224 of 2001
(Arising from of SLP (Crl.) No. 3493 of 2000)
(Arising from of SLP (Crl.) No. 3493 of 2000)
Judges: K.T. THOMAS & R.P. SETHI, JJ.
Date of Judgment: Feb 23, 2001
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Section 494 – Offence – Husband obtaining ex parte divorce decree on 6.7.90 – Undergoing second marriage on 25.5.93 – First wife getting the ex parte decree set aside on 31.3.94 – Complaint filed on 28.3.95. Held that husband cannot possibly be convicted for offence under Section 494 IPC. Hence proceedings quashed. (Para 4)
JUDGEMENT:
ORDER
1. Leave granted.
2. It appears that the appellant secured an ex parte decree divorcing his first wife on 6.7.1990, though the wife says that she never had notice of the said decree or the proceedings commenced by her husband. What the appellant did was to undergo a marriage with another lady on 25.5.1993 presumably on the strength of the ex parte decree secured by him. But his good days with the newly married wife did not last long as the first wife succeeded in getting the ex parte decree set aside on 31.3.1994. The fact remains that there is no decree of divorce as between the appellant and his first wife ever since 31.3.1994.
3. The first wife filed a complaint against the appellant on 28.3.1995 alleging that the appellant has committed the offence under Section 494 of the IPC. On receiving the process issued by the criminal court the appellant moved the High Court of Allaha-bad for quashing the criminal proceedings. The main plank adopted by the appellant is that on the date when he conducted the second marriage the first marriage was not subsisting in view of the ex parte decree which continued in force on the said date.
4. Learned Counsel for the respondent (first wife) did not dispute the fact that she moved for setting aside the ex parte decree and succeeded in it when an order was passed on 31.3.1994. As per that order the ex parte decree of divorce dated 6.7.1990 was set aside. If that be so, appellant cannot possibly be convicted for the offence under Section 494 of IPC on the premise that he had undergone a ceremony of marriage with another lady on 25.5.93.
5. Learned Counsel for the respondent contended that the appell-ant is guilty of adultery at least from the date 31.3.1994. We are not considering that aspect since no complaint has been filed by the first wife against the appellant on that score.
6. As it is, we feel that the criminal proceeding now pending against the appellant for the offence under Section 494 of the IPC is only an exercise of futility. We do not want the criminal court to waste its time for that purpose.
7. We, therefore, allow this appeal, set aside the impugned order and quash the proceeding taken pursuant to the criminal complaint filed by the first wife. It is needless to say that this order is without prejudice to the right, if any, of the first wife filing any complaint against the appellant for any other offence.
1. Leave granted.
2. It appears that the appellant secured an ex parte decree divorcing his first wife on 6.7.1990, though the wife says that she never had notice of the said decree or the proceedings commenced by her husband. What the appellant did was to undergo a marriage with another lady on 25.5.1993 presumably on the strength of the ex parte decree secured by him. But his good days with the newly married wife did not last long as the first wife succeeded in getting the ex parte decree set aside on 31.3.1994. The fact remains that there is no decree of divorce as between the appellant and his first wife ever since 31.3.1994.
3. The first wife filed a complaint against the appellant on 28.3.1995 alleging that the appellant has committed the offence under Section 494 of the IPC. On receiving the process issued by the criminal court the appellant moved the High Court of Allaha-bad for quashing the criminal proceedings. The main plank adopted by the appellant is that on the date when he conducted the second marriage the first marriage was not subsisting in view of the ex parte decree which continued in force on the said date.
4. Learned Counsel for the respondent (first wife) did not dispute the fact that she moved for setting aside the ex parte decree and succeeded in it when an order was passed on 31.3.1994. As per that order the ex parte decree of divorce dated 6.7.1990 was set aside. If that be so, appellant cannot possibly be convicted for the offence under Section 494 of IPC on the premise that he had undergone a ceremony of marriage with another lady on 25.5.93.
5. Learned Counsel for the respondent contended that the appell-ant is guilty of adultery at least from the date 31.3.1994. We are not considering that aspect since no complaint has been filed by the first wife against the appellant on that score.
6. As it is, we feel that the criminal proceeding now pending against the appellant for the offence under Section 494 of the IPC is only an exercise of futility. We do not want the criminal court to waste its time for that purpose.
7. We, therefore, allow this appeal, set aside the impugned order and quash the proceeding taken pursuant to the criminal complaint filed by the first wife. It is needless to say that this order is without prejudice to the right, if any, of the first wife filing any complaint against the appellant for any other offence.
