A.S. Nazar, Shani and Shahitha v. Jissa and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2017-05-25
Court Decision / Holding: The petition is allowed; Annexure-A1 complaint and further proceedings in CC No. 1232/2015 are quashed, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. The order effectively terminates the prosecution against the petitioners in the said case.
Final Disposition: Crl.M.C. stands allowed.

Parties to the Case

Appellants / Petitioners

A.S.NAZAR
SHANI
SHAHITAHA

Respondents

JISSA
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri.J.JAYAKUMAR

Counsels for Respondents

• Public Prosecutor SRI.C.K.PRASAD

Case Synopsis & Summary

This is a Criminal Misc. Case (Crl.MC No. 6935 of 2016) filed in the Kerala High Court to quash proceedings in CC No. 1232/2015 pending before the Judicial First Class Magistrate Court, Nedumangad. The petitioners—A.S. Nazar, SHANI, and SHAHITAHA—are accused in offences under Sections 494 and 114 read with Section 34 IPC, based on a complaint by the first respondent, Jissa, who is the defacto complainant, with the State of Kerala represented by the Public Prosecutor. The facts allege that the first petitioner married the first respondent in 2000, and thereafter, without divorcing her, married the second petitioner, with the third petitioner aiding in the second marriage. Annexure-A1 records the private complaint; Annexure-A5 is a common judgment of the Family Court, Attingal, noting the talaq (divorce) pronouncement on 31.03.2008, though it does not specify the dates of marriage between the petitioners or the first respondent. The learned counsel for the petitioners contends that the second marriage occurred after dissolution of the first marriage by talaq, rendering the 494 IPC offences unsustainable. The Public Prosecutor is present but no detailed counter-arguments are elaborated in the excerpt. The High Court, invoking its inherent powers under Section 482 Cr.P.C., agrees that there is no valid second marriage that would violate Section 494, and hence quashes the complaint and proceedings to meet ends of justice. The order culminates in allowing the Crl.M.C.

Provisions of Law Cited

Section 494 IPCSection 114 r/w Section 34 IPCSection 482 Cr.P.C.

Legal Doctrines & Maxims

sine qua non
ends of justice
inherent power under Section 482 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that the first respondent (Jissa) was divorced by talaq before the second marriage to the second petitioner, and Annexure-A5 (a common Family Court judgment) records a talaq on 31.03.2008. Since the second marriage occurred after the first marriage’s dissolution, the essential element for an offence under Section 494 IPC—a second marriage void under the law—is not satisfied; therefore the prosecution cannot be sustained. There is no clear allegation that the first petitioner remarried after being lawfully separated, nor that more than one prior marriage existed at the time of the second marriage.

Contentions of Respondents

Not explicitly detailed in the provided text. The proceedings were heard with the petitioners’ counsel and the Public Prosecutor representing the State, but the excerpt does not contain a distinct outline of the respondents’ submissions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Dr. Surajmani Stella Kujur v. Durga Charan Hansdah and Another	AIR 2001 SC 938; 2001 KHC 1043	Positive	The apex court held that the fact that a second marriage is void is sine qua non for applicability of Section 494 IPC, a principle applied by the Kerala High Court to assess the case at hand.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939** **Crl.MC.No. 6935 of 2016 () ---------------------------** **CC 1232/2015 of J.F.M.C.-I1, NEDUMANGAD --------------** **PETITIONER(S)/ACCUSED 1 TO 3:** **-----------------------------** ## **1. A.S.NAZAR,** **AGED:39 YEARS, S/O ABDUL SATHAR, KODAMVILAKOM, KUNNUMPURATH VEEDU, NIRAMANKADAVU, KURINCHILAKAD, NEDUMANGAD TALUK, THIRUVANANTHAPURAM** **2. SHANI,** - **D/O SHAHITHA, KODAMVILAKOM, KUNNUMPURATH VEEDU, NIRAMANKADAVU, KURINCHILAKAD, NEDUMANGAD TALUK, THIRUVANANTHAPURAM** **3. SHAHITAHA, KODAMVILAKOM, KUNNUMPURATH VEEDU, NIRAMANKADAVU, KURINCHILAKAD, NEDUMANGAD TALUK, THIRUVANANTHAPURAM** **BY ADV. SRI.J.JAYAKUMAR** **RESPONDENT(S)/DEFACTO COMPLAINANT & STATE:** **------------------------------------------** ## **1. JISSA,** - **AGED;31 YEARS, D/O KAMIL BEEVI, ANASKHAN MANZIL, KEEZHATTINGAL VILLAGE, MANANAKKU, KEEZHATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTIRCT** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R2 BY PUBLIC PROSECUTOR SRI.C.K.PRASAD** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-05-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 6935 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** |**A1**|**CERTIFIED COPY OF THE PRIVATE COMPLAINT FILED BY THE 1ST**| |---|---| ||**RESPONDENT IN CC NO. 1232/2015 BEFORE THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT 11, NEDUMANGAD.**| |**A2**|<br>**CERTIFIED COPY OF THE DEPOSITION OF THE 1ST RESPONDENT IN CC**| ||**NO. 1232/2015 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT**| ||**11, NEDUMANGAD.**| |**A3**|<br>**CERTIFIED COPY OF THE DEPOSITION OF FATHER OF THE 1ST**| ||**RESPONDENT IN CC NO. 1232/2015 BEFORE THE JUDICIAL FIRST**| ||**CLASS MAGISTRATE COURT 11, NEDUMANGAD.**| |**A4**|**TRUE COPY OF THE JUDGMENT DATED 26/6/2008 IN CC NO. 204/2006 OF**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT 1, ATTINGAL.**| |**A5**|**TRUE COPY OF THE COMMON JUDGMENT DATED 12/5/2014 IN OP NOS.**| ||**1983/2013, AND 1985/2013 OF FAMILY COURT, ATTINGAL.**| ## **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** **STK** ## **B. SUDHEENDRA KUMAR, J.** **-------------------------------Crl. M.C. No.6935 of 2016** **----------------------------------** Dated this the 25[th] day of May, 2017 ## **O R D E R** The petitioners are accused in C.C.No.1232/2015 on the files of the court below. The first respondent is the complainant in this case. The first petitioner is the husband, the second petitioner is the present wife and the third petitioner is the mother of the second petitioner. 2. The allegation is that the first petitioner married the first respondent in accordance with their customary rites on 13.07.2000. Thereafter, without pronouncing talaq or divorcing the second respondent, the first petitioner married the second petitioner. The third petitioner assisted the other petitioners in the said marriage. 3. On the said allegations, Annexure-A1 complaint was filed by the first respondent herein before the court below. The learned Magistrate after recording the sworn statement of the complainant and one witness, took ## **Crl. M.C. No.6935 of 2016** ## **-: 2 :-** cognizance for the offences under Sections 494 and 114 r/w Section 34 IPC. 4. The petitioners have approached this Court under Section 482 Cr.P.C. for quashing the proceedings in C.C.No.1232/2015 on the files of the court below. 5. The service on the first respondent is complete. However, there is no appearance for the first respondent. 6. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 7. The learned counsel for the petitioners has submitted that since there was divorce of the first respondent by the first petitioner by pronouncing talaq before the marriage between the first petitioner and the second petitioner, the present offences alleged against the petitioners cannot be sustained. The learned counsel for the petitioners has canvassed Annexure A5 judgment to the notice of this Court to support his argument. In Annexure A5, the court observed that the first petitioner had divorced ## **Crl. M.C. No.6935 of 2016** ## **-: 3 :-** the first respondent herein by pronouncing talaq on 31.03.2008. Ext.A5 judgment is a common judgment passed by the Family Court, Attingal in three original petitions, wherein the first petitioner and the first respondent herein were parties. There is no mention about the date of marriage between the first and the second petitioners either in Annexure-A1 complaint or in the sworn statement of the complainant or her witness. 8. The parties are Muslims. Section 494 IPC provides that 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. The necessary ingredients of the Section are: (1) having a husband or wife living; (2) marries in any case; (3) in which such marriage is void; and (4) by reason of its taking place during the life time of such husband or wife. A marriage ## **Crl. M.C. No.6935 of 2016** ## **-: 4 :-** which is in violation of any provisions of law would be void in terms of the expression used under Section 494 IPC. 9. The Apex Court in Dr.Surajmani Stella Kujur v. Durga Charan Hansdah and Another [2001 KHC 1043: AIR 2001 SC 938] held that the fact of the second marriage being void is _sine qua non_ for the applicability of Section 494 IPC. The Muslim male can have four wives at a time. However, if the Muslim male marries a fifth wife, he can very well be prosecuted under Section 494 IPC since the fifth marriage is void as the present law permits only four wives to be taken together. 10. One of the most important ingredients to attract the offence under Section 494 IPC is that the second marriage should be void. So far as Muslim males are concerned, since they can have four wives living at a time, the second marriage is not void. Since the second marriage is not void, the offence under Section 494 IPC is not attracted, even if the Muslim male marries a second woman. ## **Crl. M.C. No.6935 of 2016** ## **-: 5 :-** In this case, there is no allegation that the first petitioner had married more than once before the marriage with the second petitioner. Therefore, no offence under Section 494 IPC is attracted in this case. Consequently, the abetment of the said offence is also not attracted. For the said reason, there cannot be any successful prosecution against the petitioners for the above said offences and consequently, no purpose will be served even if the prosecution against the petitioners is permitted to be continued. For the said reason, I am inclined to quash Annexure-A1 complaint and further proceedings against the petitioners in C.C.No.1232/2015 on the files of the court below, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice and accordingly, I order so. In the result, this Crl.M.C. stands allowed. Sd/- ## **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE// ## **Crl. M.C. No.6935 of 2016** **-: 6 :-**