S.494 IPC | Friends/Relatives Can't Be Held To Have Common Intention For Offence Of Bigamy By Mere Presence In Second Marriage: Supreme Court

The bench of Justices BR Gavai and Sandeep Mehta, while setting aside the criminal proceedings against the relatives and friends of the accused wife, observed the following :

“A bare perusal of the penal provision would indicate that the order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. However, this is a curable defect, and the charge can be altered at any stage as per the provisions of Section 216 CrPC.”

"The appellants (friends and relatives) herein are being roped in by virtue of Section 34 IPC(common intention) with the allegation that they had the common intention to commit the offence under Section 494 IPC. In order to bring home the said charge, the complainant would be required to prima facie prove not only the presence of the accused persons, but the overt act or omission of the accused persons in the second marriage ceremony and also establish that such accused were aware about the subsisting marriage of A-1 with the complainant," the Court added.

The facts of the case are that Respondent no.2(husband), the complainant, married accused no.1 (wife) on April 16, 2007. It is claimed that on August 13, 2010, accused no.1 married accused no.2 under the Special Marriage Act of 1954, even though she was already married to the complainant.

It's also claimed that the friends (including the appellants) and family of the accused, are also responsible for the said offence of bigamy since they wanted this to happen by way of common intention to commit the offence.

On May 28, 2018, the Judicial Magistrate First Class, directed to frame charges against the appellants under Section 494 IPC ( Marrying again during life-time of husband or wife) read with S. 34 IPC (common intention) on the basis of the evidence led on behalf of the complainant.

The appellants challenged this order by filing a Criminal Revision Petition in the Sessions Court. The petition was however dismissed on October 26, 2018. Then, the appellants challenged the order before the High Court, seeking quashing of the proceedings, but the High Court also rejected it. The appellants thereafter moved the Top Court under special leave to appeal.

Trial Court's Order Of Charging Appellants Under The Offence Of Bigamy Erroneous, Only Spouses Involved In Second Marriage Can Be Charged Under Section 494 IPC

The Court at the outset noted that while the complaint was filed alleging the commission of offences under S. 494 read with S. 34 IPC, however after recording the pre-charge evidence, the Trial Court directed the framing of charges all the accused persons only under the offence of Bigamy under S. 494 IPC.

Stressing the essential elements of an offence of Bigamy, the Court relied upon the decision of Gopal Lal v. State of Rajasthan. The key ingredients are noted as follows :

“The essential ingredients of this offence are: (1) that the accused spouse must have contracted the first marriage (2) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and (3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.”

Thus, the Court concluded that the order framing the charges against the appellants(family members and relatives of the accused) suffers from a patent error as only the spouse to the second marriage could have been charged for the offence of Bigamy.

“A bare perusal of the penal provision would indicate that the order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. However, this is a curable defect, and the charge can be altered at any stage as per the provisions of Section 216 CrPC.”

Common Intention Of The Appellants By An Overt Act Or Ommission Not Proven

The bench noted that peculiarly, the appellants have not been charged under the offence of abetment of bigamy under S. 109 IPC but rather of common intention under S. 34 IPC.Applying the rules for establishing common intention, the Court noted the prima facie need to show that not only were the appellants present at the bigamous wedding but also committed an overt act or omission to show their common intention towards the bigamy and the knowledge that Mr Lumina was already married.

In order to bring home the said charge, the complainant would be required to prima facie prove not only the presence of the accused persons, but the overt act or omission of the accused persons in the second marriage ceremony and also establish that such accused were aware about the subsisting marriage of (A-1) with the complainant.

Reverting to the facts, the bench noted that as per the pre-charge evidence, the mother and brother of Ms Lumina were not mentioned to be present at the time of the marriage. Thus there was no iota of evidence against them.

A perusal of the pre-charge evidence led in support of the complaint would reveal that Flory Lopez(A-3) and Vimal Jacob(A 4) were not even alleged to be present at the time of such marriage.

With regards the three friends of the main accused, while the complainant alleged in his deposition that the said appellants were witnesses, no shred of evidence has been shown to proved that the appellants in fact acted as witnesses to the second marriage.

However, there is not even a shred of allegation by the complainant that these accused, acted as witnesses to the second marriage having knowledge that A-1) was already married to the complainant. In absence of such allegation, the prosecution of the S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A-7), for the charge of having a common intention to commit the offence under Section 494 IPC is totally unwarranted in the eyes of law.

The Court also placed reliance on the decision in Chand Dhawan(Smt) v. Jawahar Lal and Others wherein it was held that the presence of the accused person in the second marriage can not be assumed as an act of facilitating the offence of bigamy. The relevant portion of the judgement reads :

The allegations in the complaint so far as these respondents are concerned are vague. It cannot be assumed that they had by their presence or otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting.

The Court therefore proceeded to set aside the impugned orders and directed that charges framed against the appellants and the trial proceedings be quashed, except for the main accused.

Case Details : S. NITHEEN & ORS. v. STATE OF KERALA & ANR. SLP (Criminal) No(s). 8529 of 2019

Citation : 2024 LiveLaw (SC) 385