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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

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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

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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.

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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

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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,

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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

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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

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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

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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)

NEW DELHI; APRIL 09, 2015.

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