The Uttarakhand High Court has refused to quash criminal proceedings for the offence of bigamy under Section 494 of the Indian Penal Code, holding that whether the essential ceremonies of the alleged second marriage, including Saptapadi, were performed is a matter of trial and “cannot be gone into at the primary stage of taking cognizance”.

Relying on the Supreme Court's decision in K. Neelaveni v. State, the Court held that the applicant-husband's contention that no offence under Section 494 IPC was made out for want of evidence regarding the Saptapadi ceremony did not merit acceptance at the stage of summoning.

Justice Siddhartha Sah was hearing an application under Section 482 of the Code of Criminal Procedure seeking quashing of the summoning order dated August 4, 2016 passed by the Judicial Magistrate First, Haldwani, the revisional order dated August 7, 2021 passed by the 2nd Additional Sessions Judge, Nainital, and the criminal proceedings arising out of a complaint under Sections 494 and 504 IPC.

According to the complaint, the complainant-wife had married the applicant on March 7, 1988. It was alleged that during the subsistence of the first marriage, the applicant-husband contracted a second marriage on July 4, 2010 without the first marriage having been dissolved. Further, on the basis of the complainant's statement recorded under Section 200 CrPC and the police report called for by the Trial Court, the applicant was summoned to face trial under Sections 494 and 504 IPC. His criminal revision against the summoning order was dismissed, leading to the present proceedings under Section 482 CrPC.

Assailing the summoning order, the applicant primarily contended that no prima facie case under Section 494 IPC was made out in the absence of proof that the alleged second marriage had been performed with the essential ceremonies required under Hindu law. Relying on the Allahabad High Court's decision in Nisha v. State of U.P., it was argued that Saptapadi is an essential ceremony to constitute a valid Hindu marriage and that, since neither the complaint nor the material on record established performance of the Saptapadi ceremony, the basic ingredients of the offence under Section 494 IPC were lacking. It was therefore submitted that the Trial Court and the Revisional Court had erred in summoning the applicant.

Opposing the application, the complainant-wife contended that the principal question was whether, at the stage of summoning, the complainant was required to establish by evidence that all essential ceremonies of the second marriage had been performed. Reliance was placed on the Delhi High Court's decision in Pooja Sharma Bajaj v. Kunal Bajaj and the Supreme Court's decision in K. Neelaveni, wherein it was held that whether the essential ceremonies of marriage were performed is a matter of trial. Importantly, it was further argued that insisting upon proof of every ceremony before issuance of summons would place an “onerous burden” on the first wife, who would ordinarily have no opportunity to witness or collect evidence regarding the husband's alleged second marriage.

After considering the above submissions, the High Court observed that the “sole question” for determination was whether the complainant was required to prove the essential ceremonies of marriage even at the initial stage of summoning, or whether that issue was one to be decided during trial. Noting the conflicting precedents relied upon by the parties, the Court opined:

“In the case of Nisha (Supra), the Allahabad High Court has held that in the absence of cogent evidence regarding the Saptapadi ceremony of marriage, the basic ingredients to constitute an offence under Section 494 of the IPC would be lacking, and thus there is no offence made out, and the summoning order could not have been passed. However, the view taken by the High Court of Delhi is contrary. The High Court of Delhi has relied upon the judgment of the Hon'ble Apex Court in the case of K. Neelaveni (Supra). A perusal of paragraph 14 of K. Neelaveni (Supra) would show that it has been held by the Hon'ble Supreme Court that whether essential ceremonies of marriage were performed or not is a matter of trial.

Therefore, ceremony of Saptapadi would be one of the essential ceremonies of marriage that would fall for consideration by the Trial Court during trial, and that question cannot be gone into at the primary stage of taking cognizance”.

Applying the aforesaid principle, the High Court held that the ceremony of Saptapadi, being one of the essential ceremonies of a Hindu marriage, would fall for consideration by the Trial Court during the course of trial and “that question cannot be gone into at the primary stage of taking cognizance.” It consequently rejected the applicant's contention that the absence of evidence regarding Saptapadi rendered the complaint liable to be quashed at the threshold.

Consequently, holding that the summoning order and the revisional order did not suffer from any error warranting interference under Section 482 CrPC, the High Court dismissed the application.

Case: Kharak Singh Dhapola Versus State of Uttarakhand and Another [Criminal Misc. Application No. 1176 of 2021]

Click Here To Read/Download Order