Sudhir S. @ Sudhir Sedhumadhaan v. Amily Kadannayil and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 ``` ``` CRL.MC NO. 267 OF 2017 ``` ``` AGAINST CC No.568/2014 OF JUDICIAL MAGISTRATE OF FIRST ``` ## **`CLASS ,CHAVAKKAD`** ## **`PETITIONER/ACCUSED:`** ``` SUDHIR.S. @ SUDHIR SEDHUMADHAVAN AGED 43 YEARS, S/O. A.V. SEDHUMADHAVAN, ROCK FORT, R.P. ROAD, SAHYADRI COLONY, CHANDRA NAGAR, PALAKKAD. ``` ``` BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.POOJA PANKAJ SRI.M.REVIKRISHNAN ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** ``` 1DR.AMBILY KADANNAYIL AGED 40 YEARS, D/O. LATE BALAKRISHNAN NAIR, SREE VIHAR, PUTHUKKODE P.O, RAMANATTUKARA, MALAPPURAM - 676 505. ``` ``` 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. ``` ``` BY ADVS ``` ``` SRI.VINUCHAND SRI NOUSHAD K.A. (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.MC NO.267 OF 2017 2 ``` ## **ORDER** Petitioner is the accused in C.C.No568/2014 on the file of the Judicial First Class Magistrate Court, Chavakkad, alleging commission of offence under Section 494 of the Indian Penal Code. 2. According to the allegations in the complaint, the 1[st] respondent/complainant and the petitioner/accused were married as per customs and rituals prevailing in the Hindu Community at the Sree Krishna Temple, Guruvayoor, on 24-10-2005. A child was also born out of the wedlock on 14-09-2006. It is the case of the 1[st] respondent/complainant that there arose matrimonial disputes between the 1[st] respondent/complainant and the petitioner/accused, leading to initiation of proceedings including for divorce before the Family Court, Malappuram. It is alleged that owing to mediation talks after the filing of the divorce petition, the divorce petition was not proceeded with further. It is alleged that while the marriage between the 1[st] respondent/complainant and the petitioner/accused was ``` Crl.MC NO.267 OF 2017 3 ``` subsisting, the petitioner/accused contracted another marriage on 01-01-2009 at Guruvayoor Temple. It is thus that a private complaint has been filed alleging the commission of offence under Section 494 of the Indian Penal Code. 3. Learned Senior Counsel for the petitioner/accused would vehemently contend that the complaint filed by the 1[st] respondent/complainant is woefully lacking in any material particular and if the allegations in the complaint are taken as a whole no offence under Section 494 of the Indian Penal Code has been made out. He laid emphasis on the judgment of this Court in **Govindan Nair v. State;** 1971 KLT 614, which followed the judgment of the Supreme Court in **Priya Bala Ghosh v. Suresh Chandra Ghosh;** AIR 1971 SC 1153, to contend that unless there are averments in the complaint which would indicate that the alleged second marriage was solemnized in accordance with the prevalent practices applicable to the community in question, an offence under Section 494 of the Indian Penal Code cannot be established. It is submitted that a reading of the complaint filed by the 1[st] respondent/complainant shows that there is not even a whisper that the alleged second marriage was conducted in ``` Crl.MC NO.267 OF 2017 4 ``` accordance with the rituals and practices prevalent in the community to which the petitioner and his alleged second wife belongs and therefore the allegation against the petitioner/accused having committed the offence under Section 494 of the Indian Penal Code is not made out. It is also submitted that unnecessary allegations have been raised against the petitioner/accused on account of other matrimonial disputes between the petitioner/accused and the 1[st] respondent/complainant. It is also pointed out that the petitioner/accused was accused in a proceeding under Section 498 A of the Indian Penal Code and the petitioner/accused was acquitted in the said case holding that the 1[st] respondent/complainant was unable to prove the allegations. It is submitted that in order to somehow prosecute the petitioner/accused alleging commission of criminal offences, a false complaint alleging commission of offence under Section 494 of IPC has been filed, as above. 4. Learned counsel appearing for the 1[st] respondent/ complainant would submit that the complaint contains all necessary ingredients necessary to constitute a complaint alleging commission of offence under Section 494 of IPC. It is ``` Crl.MC NO.267 OF 2017 5 ``` submitted that the only averment necessary for maintaining a complaint is that while the marriage between the petitioner/accused and the 1[st] respondent/complainant was subsisting, the accused had entered into another marriage. It is submitted that there are clear averments in the complaint which would indicate that the petitioner/accused had contracted another marriage. It is submitted that the date of the alleged second marriage is given in the complaint. It is also submitted that the name of a person, who is stated to have witnessed the marriage, is also given in the complaint. It is submitted that there is no further requirement for maintaining a complaint and the necessary ingredients of an offence under Section 494 of IPC have been made out. It is submitted that the question as to whether the second marriage was in conformity with the customs and rituals prevalent to the community in question is a matter for evidence and is not a matter to be examined in proceedings under Section 482 Cr.P.C. 5. Heard the learned Senior Public Prosecutor also. 6. Having heard the learned Senior Counsel for the petitioner/accused, learned Senior Public Prosecutor and the ``` Crl.MC NO.267 OF 2017 6 ``` learned counsel for the 1[st] respondent/complainant, I am of the view that the petitioner/accused is not entitled to succeed. While it may be open to the petitioner/accused to establish that the allegations regarding a second marriage by the petitioner/accused is wrong even by showing that the alleged second marriage had not been solemnized in accordance with the customary rituals and ceremonies, the same will have to be established by leading evidence and the matter cannot be examined in a petition under Section 482 of Cr.P.C. The contention raised by the learned Senior Counsel appearing for the petitioner that the complaint lacks material particulars/ingredients of the offence under Sections 494 of IPC is only to be rejected. As rightly pointed by the learned counsel for the 1[st] respondent/complainant the only averments necessary are that there was a subsisting marriage and the petitioner/accused had contracted a second marriage at a time when that first marriage was subsisting. In the complaint in question, such averments are made. The name of one person who allegedly witnessed the second marriage of the petitioner/accused is also named. Therefore, I am unable to accept the contention of the learned Senior Counsel for the ``` Crl.MC NO.267 OF 2017 7 ``` petitioner/accused that the complaint lacks material particulars and the ingredients of the offence under Section 494 of IPC have not been made out. I also note that the judgment of this Court in **Govindan Nair (Supra)** was rendered in a criminal revision petition where after analysing the evidence this Court came to the conclusion that the evidence was lacking in as much as there was no evidence to suggest that the alleged 2[nd] marriage in question (in that case) was conducted following the necessary rituals and ceremonies applicable to the parties in that case. I also notice that the Supreme Court in **M.Jayanthi v. K.R Meenakshi and Others,** Manu/SC/1866/2019, which also concerned a prosecution under Section 494 of IPC, held as follows: “9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Code of Criminal Procedure for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking ``` Crl.MC NO.267 OF 2017 8 ``` cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged”. In the light of the above findings, the Crl.M.C. is dismissed, making it clear that the dismissal of the Crl.M.C will not prejudice the petitioner/accused in contending that there was no second marriage as alleged in the complaint. It is made clear that this order will also not prejudice the right of the petitioner/accused to seek discharge if circumstances exists for the same by filing an appropriate application under Section 245 of the Code of Criminal Procedure. **==> picture [244 x 51] intentionally omitted <==** **Sd/GOPINATH P. JUDGE** ats ``` Crl.MC NO.267 OF 2017 9 ``` ## **`APPENDIX OF CRL.MC 267/2017`** ``` PETITIONER’S ANNEXURES ``` - `ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 1ST RESPONDENT HEREIN AGAINST THE PETITIONER, BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, CHAVAKKAD.` - `ANNEXURE B TYPED COPY OF THE SWORN STATEMENT TENDERED BY THE 1ST RESPONDENT BEFORE THE LEARNED MAGISTRATE.` - `ANNEXURE C TYPED COPY OF THE SWORN STATEMENT OF CW1 TENDERED BEFORE THE LEARNED MAGISTRATE.` - `ANNEXURE D TYPED COPY OF THE SWORN STATEMENT OF CW2 TENDERED BEFORE THE LEARNED MAGISTRATE.` - `ANNEXURE E TYPED COPY OF THE SWORN STATEMENT OF CW3 TENDERED BEFORE THE LEARNED MAGISTRATE.` - `ANNEXURE F TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, MALAPPURAM IN O.P. NO. 662/2014 DATED 30.09.2016.`