Top Court quashes proceedings against friends & relatives in case of bigamy u/s 494 IPC, says complainant has to prove presence of accused persons & overt act of such persons in second marriage ceremony
Justices B.R. Gavai & Sandeep Mehta [15-05-2024]

Read Order: S. NITHEEN & ORS v. STATE OF KERALA & ANR [SC- CRIMINAL APPEAL NO(S). 2585 OF 2024]

LE Correspondent

New Delhi, May 17, 2024: The Supreme Court has clarified that in order to bring home the charge u/s 494 IPC, 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. 

The complainant- Reynar Lopez(respondent No.2) married Lumina(A-1) as per the Christian ceremonies in a church in Kerala on April 16, 2007. It was alleged that on August 13, 2010, Lumina(A-1) contracted marriage with Saneesh(A-2) under the Special Marriage Act, 1954. The appellants herein(A- 3, A-4, A-5, A-6 and A-7) are relatives and friends of Saneesh(A-2) and Lumina(A-1) and thus they too are responsible for the offence of bigamy committed by Lumina(A-1) as they had the common intention to commit such offence.

The appeals before the Top Court preferred on behalf of the appellants challenged the final judgment of the Kerala High Court whereby, the petition preferred by the appellants seeking quashing of the proceedings for the offences punishable under Section 494 read with Section 34 of the Indian Penal Code, 1860 was rejected.

Referring to the judgment in Gopal Lal v. State of Rajasthan [LQ/SC/1979/75], the Bench explained that the essential ingredients of  offence under Section 494 IPC arethat the accused spouse must have contracted the first marriage, while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and both the marriages must have been valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.

It was opined 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, the Bench held that this is a curable defect, and the charge can be altered at any stage as per the provisions of Section 216 CrPC.

The present case was a peculiar case as the complainant has not sought prosecution of the appellants for the charge of abetting the second marriage by Lumina(A-1) under Section 109 IPC. The appellants were being roped in by virtue of Section 34 IPC 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 Lumina(A-1) with the complainant”, it added.

One Flory Lopez(A-3) and Vimal Jacob(A- 4) were not even alleged to be present at the time of such marriage. Hence, the involvement of these accused for the charge of having a common intention to commit the offence under Section 494 IPC was not established by an iota of evidence.

So far as S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A- 7) were concerned, they were alleged to be the friends of Lumina(A-1) and Saneesh(A-2) and they witnessed the alleged bigamous marriage. 

The complainant who testified as CW-1 had alleged in his deposition that accused S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A-7) were the witnesses to the second marriage. However, there was not even a shred of allegation by the complainant that these accused acted as witnesses to the second marriage having knowledge that Lumina(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 Bench held.

Placing reliance upon Chand Dhawan(Smt) v. Jawahar Lal and Others [LQ/SC/1992/359] where the Top Court had upheld the order passed by the High Court quashing the criminal proceedings under Section 494 IPC against the accused therein, the Bench held that the order framing charge as well as the order rejecting the revision petition and criminal miscellaneous petition preferred by the accused appellants do not stand to scrutiny.

Allowing the appeals, the Bench quashed all the subsequent proceedings sought to be taken against the appellants. However, the trial of Lumina(A- 1) and Saneesh(A-2) has been ordered to be continued.