Musstt Rehana Begum vs State of Assam & Anr.

HELD: 1.1 The gravamen of the complaint which has been lodged by the second respondent is that on 11 January 1996, when he and the appellant entered into marriage, the appellant had a prior subsisting marriage as a consequence of which she is guilty of an offence punishable under Section 494 of IPC. From the record which has been produced before the Court, it emerges that the appellant moved the Family Court for seeking a declaration that the divorce which was pronounced by the second respondent was null and void under Muslim law. In his written statement, the second respondent specifically supported the purported talaq and the divorce certificate issued by the Sadar Kazi under the Muslim personal law. In the additional written statement, the second respondent took the plea that the appellant did not disclose to him that she had a prior marriage with another person which was solemnized on 11 June 1987. Evidence was adduced before the Family Court. The second respondent deposed before the Family Court. The Principal Judge of the Family Court at Guwahati, by a judgment dated 20 July 2017, issued a declaration that the divorce which was purportedly granted by the second respondent to her is null and void. The said judgment clearly shows that whether (i) the appellant had a prior subsisting marriage with another person; and (ii) the second respondent had obtained a valid divorce was in issue before the Family Court. The finding of fact as between the appellant and the second respondent is that the appellant did not have a subsisting prior marriage when she married him. The judgment of the Family Court was questioned in MAT Appeal No 47 of 2017. A Division Bench of the High Court dismissed the appeal for non-prosecution on 20 June 2019, having noted that on the previous occasion on 27 May 2019, no one had appeared on behalf of the second respondent in those proceedings. The order of the High Court continues to hold the field. Yet, the impugned judgement has held that the factum of the subsisting marriage of the appellant is a contentious matter and has declined to quash the criminal complaint against the appellant. [Paras 11-13][968D-H; 969-B-E]

1.2 In certain circumstances, the High Court is entitled to consider other materials before exercising its powers of quashing under Section 482 of the CrPC. In the present case the appellant and the second respondent were parties to the decision of the Family Court. No contentious material or disputed issues of evidence arise. In the above backdrop, allowing the criminal proceeding to proceed for an offence under Sections 494 and

495 of IPC would constitute an abuse of the process. As between the appellant and the second respondent the issue as to whether she had a subsisting marriage on the date on which she entered into a marriage with the second respondent is the subject matter of a conclusive finding of the Principal Judge of the Family Court which has attained finality. Explanation (b) to Section 7(1) of the Family Courts Act 1984 expressly confers the Family Court with jurisdiction to determine the matrimonial status of a person. Section 7(1) of the Family Courts Act 1984 grants a Family Court with the status of a District Court and Section 7(2) confers it with jurisdiction exercisable by a Magistrate of the first class under Chapter IX of the CrPC, thus enabling to collect evidence to make such a determination. Thus, relying on the judgement of the Family Court which has jurisdiction to decide the gravamen of the offence alleged in the criminal complaint, would not be same as relying on evidentiary materials that are due for appreciation by the Trial Court, such as the investigation report before it is forwarded to the Magistrate. Therefore, in this case, the Single Judge of the High Court was not justified in coming to the conclusion that the issue as to whether the appellant had a subsisting prior marriage was a ‘highly contentious matter’ which has to be tried on the basis of the evidence on the record. The impugned judgment and order of the High Court is set aside. Criminal Petition instituted by the appellant for quashing the complaint is allowed. The complaint pending in the Court of SDJM(S) II, Kamrup (M), Guwahati is quashed. [Paras 15, 16][974-F-H; 975-A-C; 976-D-E]

Neeharika Infrastructure v. State of Maharashtra 2021 SCC OnLine SC 315; State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259; State of Andhra Pradesh v. Golconda Linga Swamy (2004) 6 SCC 522 : [2004] 3 Suppl. SCR 147; Pratibha v. Rameshwari Devi (2007) 12 SCC 369 : [2007] 9 SCR 1038; State of Madhya Pradesh v. Awadh Kishore Gupta (2004) 1 SCC 691 : [2003] 5 Suppl. SCR 672; P S Rajya v. State of Bihar (1996) 9 SCC 1 : [1996] 2 Suppl. SCR 631 – relied on.