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husband living in adultery

A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should have deceived the woman,
to believe the existence of matrimonial ties with her. And based on the
aforesaid belief, the man should have cohabited with her. The question to
be determined on the basis of the factual position, as has been noticed
hereinabove, is whether in the facts and circumstances of this case, it is
possible to accept such deceit, at the hands of the respondent, even if it
is accepted for the sake of arguments, that cohabitation continued between
the parties between 08.01.1994 till 23.06.1994, i.e., from the date when
the respondent was granted an ex-parte decree of divorce (by the Additional
District Judge, Chandigarh), till the date when the respondent married
Sunita Rani. We are of the considered view, that with the setting aside of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996), it cannot
be accepted, that there was any break in the matrimonial relationship
between the parties. Even the complaint filed by the appellant under
Section 376 of the Indian Penal Code was not entertained (and the
respondent was discharged), because it came to be concluded, that the
matrimonial ties between the appellant and the respondent were restored,
with the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance therefore,
consequent upon the passing of the order dated 19.02.1996 (whereby the
Additional District Judge, Chandigarh, set aside the ex-parte decree dated
08.01.1994), the matrimonial ties between the appellant and the respondent,
will be deemed to have subsisted during the entire period under reference
(08.01.1994 to 23.06.1994). In fact, the accusation of the appellant, on
the aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code) was not
entertained, and the respondent was discharged, just because of the above
inference. For exactly the same reason, we are satisfied that the charge
against the respondent is not made out, under Section 493 of the Indian
Penal, because the respondent could not have deceived the appellant of the
existence of a “lawful marriage”, when a lawful marriage indeed existed
between the parties, during the period under reference.
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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.457 OF 2008

RAVINDER KAUR …….APPELLANT

VERSUS

ANIL KUMAR …….RESPONDENT

J U D G M E N T

J.S.KHEHAR, J.

The appellant (Ravinder Kaur) and the respondent (Anil
Kumar) got married on 14.08.1991. Soon thereafter, the respondent preferred
a petition seeking divorce from the appellant before the Additional
District Judge, Ropar. Having received summons in the above-mentioned
case, the appellant entered appearance before the Additional District
Judge, Ropar, on 08.10.1992. On the following day, i.e., on 09.10.1992,
the respondent withdrew the petition filed by him under Section 13 of the
Hindu Marriage Act, 1955.
The respondent filed a second divorce petition on
30.04.1993, under Section 13 of the Hindu Marriage Act, 1955, on the same
factual premise and grounds (as the earlier petition), before the
Additional District Judge, Chandigarh. Proceedings were conducted in the
second divorce petition, in the absence of the appellant, and an ex-parte
decree of divorce was granted to the respondent, on 08.01.1994. It was the
case of the appellant before this Court, that the respondent did not inform
her, that the matrimonial ties between the parties had come to an end, by
the decree of divorce dated 08.01.1994. And under the impression, that the
marriage was subsisting, he continued his conjugal relationship with the
appellant, as her husband, by deception.
It was also the case of the appellant, that on 23.06.1994
the respondent married Sunita Rani. It was, thereupon, that the appellant
became aware (on 23.06.1994 i.e., on the occasion of his marriage with
Sunita Rani) about the fact, that the respondent had been granted an ex-
parte decree of divorce on 08.01.1994 (by the Additional District Judge,
Chandigarh). Within six days, of her coming to know, about the above ex-
parte decree of divorce, the appellant preferred an application, for
setting aside the said ex-parte decree, on 29.06.1994. The same was
allowed by the Additional District Judge, Chandigarh, on 19.02.1996. In
sum and substance, therefore, the matrimonial ties between the appellant
and the respondent came to be restored, as if the marital relationship had
never ceased.
Based on the fact, that the respondent had continued the
sexual relationship with the appellant, for the period from 08.01.1994
(when the ex-parte decree of divorce was passed) till he married Sunita
Rani on 23.06.1994, the appellant preferred a complaint before the Judicial
Magistrate 1st Class, Kharar, under Section 376 of the Indian Penal Code.
It is not a matter of dispute, that the respondent was discharged from the
above proceedings. In fact, no trial came to be conducted in furtherance of
the above complaint made by the appellant. The above order of discharge,
was assailed by the appellant, before the High Court of Punjab and Haryana,
at Chandigarh (hereinafter referred to as `the High Court’). The High
Court affirmed the order of discharge, on 10.07.1997. Dissatisfied with
the order of discharge, as also, the order passed by the High Court, the
appellant approached this Court. This Court declined to interfere with the
above orders.
On the same factual premise, as has been noticed in the
foregoing paragraphs (wherein the appellant had filed a complaint for
initiation of proceedings under Section 376 of the Indian Penal Code), the
appellant filed a second complaint, this time accusing the respondent of
offences under Sections 493, 494, 495, 496, 420, 506 read with Section 120-
B of the Indian Penal Code. The Judicial Magistrate 1st Class, Kharar, did
not entertain the aforementioned complaint filed by the appellant, and
dismissed the same vide an order dated 27.11.2002. Dissatisfied with the
aforesaid order, the appellant preferred a revision petition, assailing the
above order dated 27.11.2002, before the Sessions Judge, Roopnanagr. The
aforesaid revision petition was dismissed on 04.09.2003. The order dated
04.09.2003 was assailed by the appellant before the High Court, through
Criminal Misc.No.50496-M of 2003. The aforesaid Criminal Miscellaneous
Petition, was dismissed by the High Court on 10.01.2007. The order passed
by the High Court on 10.01.2007 is a subject matter of challenge through
the instant appeal.

During the course of hearing, learned counsel for the
appellant very fairly asserted, that the claim raised by the appellant in
the complaint, which is a subject matter of the present consideration, can
be pressed against the respondent, only with reference to the accusations
levelled by the appellant, under Sections 493 and 494 of the Indian Penal
Code. It was, therefore, that the instant controversy will be examined by
us, limited to the allegations made by the appellant, under Sections 493
and 494 of the Indian Penal Code only.
Learned counsel for the respondent, while opposing the
prayer made on behalf of the appellant vehemently contended, that the
present proceedings were not maintainable against the respondent, in the
light of Section 300 of the Criminal Procedure Code. In this behalf, it
was the submission of the learned counsel for the respondent, that it was
not open to the appellant to raise a claim against the respondent, so as to
subject the respondent to a trial again, on the same facts as in the
earlier complaint, even for an offence, other than the one, with reference
to which the earlier compalint was filed (under Section 376 of the Indian
Penal Code). To examine the veracity of the contention raised by the
learned counsel for the respondent, Section 300 of the Code of Criminal
Procedure is being extracted hereunder:
“300. Person once convicted or acquitted not to be tried for same
offence.

(1) A person who has once been tried by a Court of competent jurisdiction
for an offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to be tried again
for the same offence, nor on the same facts for any other offence for which
a different charge from the one made against him might have been made under
sub- section (1) of section 221, or for which he might have been convicted
under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried,
with the consent of the State Government, for any distinct offence for
which a separate charge might have been made against him at the former
trial under sub- section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different offence
from that of which he was convicted, may be afterwards tried for such last-
mentioned offence, if the consequences had not happened, or were not known
to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts
may, notwithstanding such acquittal or conviction, be subsequently charged
with, and tried for, any other offence constituted by the same acts which
he may have committed if the Court by which he was first tried was not
competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the
same offence except with the consent of the Court by which he was
discharged or of any other Court to which the first- mentioned Court is
subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of
the General Clauses Act, 1897, (10 of 1897 ) or of section 188 of this
Code.
Explanation.- The dismissal of a complaint, or the discharge of the
accused, is not an acquittal for the purposes of this section.”

Having perused Section 300, we are satisfied, that the
submission advanced at the hands of the learned counsel for the respondent,
namely, that Section 300 of the Criminal Procedure Code, will be an embargo
to obstruct the right of the appellant to file a second complaint against
the respondent, is not justified. Our above determination is based on the
fact, that the respondent had not been tried, in furtherance of the
previous complaint made by the appellant, under Section 376 of the Indian
Penal Code. The contention of the learned counsel for the appellant, that
the respondent had been discharged in furtherance of the complaint made by
the appellant, without any trial having been conducted against him (the
respondent), was not disputed. Based on the above factual contention,
learned counsel for the appellant had placed emphatic reliance, on the
explanation under Section 300 of the Criminal Procedure Code. The
explanation relied upon, clearly mandates that the dismissal of a
complaint, or the discharge of an accused, would not be construed as an
acquittal, for the purposes of this Section. In this view of the matter, we
are in agreement with the contention advanced at the hands of the learned
counsel for the appellant. We are of the considered view, that proceedings
in the second complaint would not be barred, because no trial had been
conducted against the respondent, in furtherance of the first complaint.
Having so concluded, it emerges that it is open to the appellant, to press
the accusations levelled by her, through her second complaint, referred to
above.
It is, therefore, that we shall now examine the present
controversy, with reference to Sections 493 and 494 of the Indian Penal
Code, which admittedly survive. The contention of the learned counsel for
the respondent, with reference to Section 493 of the Indian Penal Code was,
that the ingredients of the offence under Section 493 were not made out,
even if the factual position, as has been asserted by the appellant, is
accepted. Section 493 of the Indian Penal Code is being extracted
hereunder:
“493. Cohabitation caused by a man deceitfully inducing a belief of lawful
marriage.-Every man who by deceit causes any woman who is not lawfully
married to him to believe that she is lawfully married to him and to
cohabit or have sexual intercourse with him in that belief, shall be
punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.”

A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should have deceived the woman,
to believe the existence of matrimonial ties with her. And based on the
aforesaid belief, the man should have cohabited with her. The question to
be determined on the basis of the factual position, as has been noticed
hereinabove, is whether in the facts and circumstances of this case, it is
possible to accept such deceit, at the hands of the respondent, even if it
is accepted for the sake of arguments, that cohabitation continued between
the parties between 08.01.1994 till 23.06.1994, i.e., from the date when
the respondent was granted an ex-parte decree of divorce (by the Additional
District Judge, Chandigarh), till the date when the respondent married
Sunita Rani. We are of the considered view, that with the setting aside of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996), it cannot
be accepted, that there was any break in the matrimonial relationship
between the parties. Even the complaint filed by the appellant under
Section 376 of the Indian Penal Code was not entertained (and the
respondent was discharged), because it came to be concluded, that the
matrimonial ties between the appellant and the respondent were restored,
with the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance therefore,
consequent upon the passing of the order dated 19.02.1996 (whereby the
Additional District Judge, Chandigarh, set aside the ex-parte decree dated
08.01.1994), the matrimonial ties between the appellant and the respondent,
will be deemed to have subsisted during the entire period under reference
(08.01.1994 to 23.06.1994). In fact, the accusation of the appellant, on
the aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code) was not
entertained, and the respondent was discharged, just because of the above
inference. For exactly the same reason, we are satisfied that the charge
against the respondent is not made out, under Section 493 of the Indian
Penal, because the respondent could not have deceived the appellant of the
existence of a “lawful marriage”, when a lawful marriage indeed existed
between the parties, during the period under reference.
So far as the surviving provision, namely, Section 494 of
the Indian Penal Code is concerned, the same is compoundable. During the
course of hearing, on 08.04.2015, we enquired from the learned counsel for
the appellant, whether the appellant was interested in compounding the
cause, since we were made aware of the fact, that the respondent in the
meantime had fathered two children, from Sunita Rani. This proposal was
made by the Court on an oral assertion made at the behest of the learned
counsel representing the respondent, that the appellant had also re-married
in the meantime, and that, she had also begotten one son out of her second
marriage.
Having obtained instructions, learned counsel for the
appellant very fairly acknowledged, the second marriage of the appellant.
He also acknowledged, the factum of the appellant having begotten a son,
from her second marriage. In the changed scenario, learned counsel for the
appellant informed this Court, that the appellant had instructed him, that
a request may be made to the Court, that the appellant would have no
objection to the compounding of the offence under Section 494 of the Indian
Penal Code, in terms of Section 320 of the Code of Criminal Procedure, with
the consent of this Court. The contention of the learned counsel for the
appellant however was, that the appellant should be awarded reasonable
cost, while compounding the offence under Section 494 of the Indian Penal
Code.
Having given our thoughtful consideration to the facts and
circumstances of this case, specially the factual position as has emerged
after the ex-parte decree of divorce dated 08.01.1994 (passed by the
Additional District Judge, Chandigarh) was set aside on 19.02.1996, we are
of the view, that the best course for the parties is to settle their
dispute amicably. Section 320 of the Criminal Procedure Code is an avenue
available to the parties, for such resolution. In view of the consent
expressed by the appellant to this Court through her counsel, we hereby
direct the compounding of complaint made by the appellant with reference to
Section 494 of the Indian Penal Code. We direct the respondent to pay a
sum of Rs.5 lakhs, as compensation to the appellant. The respondent shall
deposit the aforesaid amount in this Court within two months from today.
It shall be open to the appellant to move an application to the Registry of
this Court, to withdraw the aforesaid amount.
The appeal is disposed of in the above terms.

……………………..J.
(JAGDISH
SINGH KHEHAR)

……………………..J.
(S.A.BOBDE)

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