Citation: Jafar Abbas Rasoolmohammad Merchant Versus State Of Gujarat, Criminal Misc. Application No. 14361 Of 2010, Judgment Dated- 05.11.2015, J. B. Pardiwala, J, Gujrat High Court [Full PDF Judgment].
Excerpts From The Judgment
6.1. Mr. Gautam Joshi, the learned counsel appearing for the applicant submitted that even if the entire case of the prosecution is accepted as true, none of the ingredients to constitute the offence of bigamy punishable under Section 494 of the Indian Penal Code are spelt out. He submitted that the parties are governed by the Muslim Personal Law. The Personal Law permits the Muslim husband to get married for four times. In other words, a Muslim can legally keep four wives. According to Mr. Joshi, Section 494 of the IPC provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, would be guilty of the offence of bigamy. According to Mr. Joshi, an offence of bigamy could be said to be committed only if the second marriage in point of time during the subsistence of the first marriage is void. According to Mr. Joshi, the Muslim Personal Law provides that the husband can have four wives. If a Muslim husband gets married for the second time, then such marriage would not be a void marriage and, therefore, no offence under Section 494 of the IPC could be said to have been committed.
6.2 Mr. Joshi, in support of his submissions, relied upon the following three decisions of the Supreme Court: (1) Sarla Mugdal, President, Kalyani v. Union of India, [1995 (3) SCC 635],(2) Chand Patel vs. Bismullah Begum, [2008(4) SCC 774] (3) Lily Thomas v. Union of India, [2000(6) SCC 224].
6.3 Mr. Joshi also placed reliance on a decision of the Kerala High Court in the case of Abdulla v. Noorjahan, [1987 Kerala Law Journal 787].
7.1. He submitted that the philosophy underlying the Muslim Personal Law which provides or rather permits a husband to have maximum four wives is being thoroughly misused and in the name of the Personal Law governing the field, a guilty husband cannot escape from the punishment provided under Section 494 of the IPC.
8. Mr. Shah submitted that there is no merit in the contention raised on behalf of the applicant as regards the territorial jurisdiction to try the case. He submitted that the law does not expect or ask a helpless wife to initiate prosecution only at the place where her matrimonial home is situated. He submitted that in the present case, his client was driven out of her matrimonial home at a point of time when she was pregnant. She was forced to return to her parental home at Bhavnagar. He submitted that the two States are altogether different. The matrimonial home is at Chhattisgarh, whereas the parental home is in Gujarat. How can the law expect a helpless lady to institute and continue with the prosecution in the State of Chhattisgarh, where she has no shelter of her own or any of her relative? The law does not expect her to travel all the way from Gujarat to Chhattisgarh, for the purpose of investigation and trial. Mr. Shah submitted that the offence punishable under Section 498A of the IPC is a continuing offence, and if a wife is being harassed and driven out of her matrimonial home and is forced to return to her parental home, then the consequences of the acts of cruelty could be said to have ensued at her parental home. He submitted that the consequence of the act of cruelty on the part of the husband could be said to have ensued at Bhavnagar and by virtue of the provisions of Section 179 of the Cr.P.C., the Court at Bhavnagar would definitely have the jurisdiction to try the case.
9 Mr. Shah, the learned counsel appearing for the respondent No.2 relied upon the following decisions: (1) Rajendra Ramchandra Kavalekar v. State of Maharastra, [2009 (11) SCC 286 (2) Asit Bhattacharjee v. Hanuman Prasad Ojha, [2007 (5) SCC 786]
12. Mr. MTM Hakim, the amicus curiae, submitted that the expression “marries in any case in which, such marriage is void by reason of its taking place during the life of such husband or wife” means that the person who marries a second time during the life of his or her first spouse, would be punished under Section 494 of the IPC only if such second marriage is not recognized by the Personal Law by which he or she is governed. Section does not require that the second marriage with the person concerned must otherwise be valid according to the law. Mr. Hakim submitted that the expression, referred to above, was intended to exclude from the provisions of Section 494 of the IPC, persons on whom the law, by which they are governed in the matter of marriage, does not enjoin monogamy. In other words, if under the Personal Law, a man is permitted to have more than one wife living at the same time he would not be guilty of an offence under Section 494 of the IPC. Mr. Hakim submitted that under the Mohammedan Law, a person is permitted to have four wives at a time.
13. Mr. Hakim submitted that if a Muslim, after marrying one woman, marries three more during the lifetime of the first, he would be not guilty under Section 494 of the IPC, but in the case of persons on whom monogamy is enjoined by their Personal law, such as Christians, Parsis, Hindus, Sikhs, they would not be at liberty to go through a second marriage during the life of the first wife or husband without committing the offence under Section 494 of the Indian Penal Code.
14. Mr. Hakim submitted that the marriage under the Muslim Law (Nikah) is a civil contract entered into between two persons of opposite sexes with a view to mutual enjoyment and legalization of children. He submitted that the Islamic concept of marriage essentially differs from the Hindu concept under which the marriage is not a mere civil contract but is a sacrament (Samskara). He submitted that the Muslim marriages can be classified into three categories: (1) Sahil, i.e., a valid marriage, (2) Batil, i.e., a void marriage, and (3) Fasid, i.e. a irregular marriage.
22 The Supreme Court outlawed such practice by its decision in the case of Sarla Mudgal v. Union of India, [AIR 1995 SC 1531]. The ruling was reaffirmed five years later in Lily Thomas v. Union of India [2000 (6) SCC 224]. Although, these cases related to the marriages governed by the Hindu Marriage Act, 1955, yet their ratio decidendi would obviously apply to all marriages whose governing laws do not permit bigamous.
24.1 The offence under Section 494 of the Indian Penal Code is noncognizable, bailable and compoundable by the aggrieved spouse with the permission of the court. That the offence is compoundable by mutual consent of the parties was affirmed in Narotam Singh v State of Punjab AIR 1978 SC 1542.
28. Marriage under the Muslim Law (Nikah) is a civil contract entered into between two persons of the opposite sexes with a view to mutual enjoyment and legalisation of children. The Islamic concept of marriage essentially differs from the Hindu concept under which marriage is not a mere civil contract but is a sacrament (samskara). The design and object of marriage under Islam is not only procreation of children but also mutual enjoyment. Sex is the foundation of marriage which is not only for the solace of life, but is one of the prime necessities of man. Islam is the only faith which makes marriage obligatory on every member belonging to that faith. The Prophet of God said that any person who does not enter into matrimony does not belong to His creed. Celebracy and asceticism are not recognised in Islam as they lead to innumerable evil consequences.
29. The Muslim marriages can be classified into three categories. The same has been dealt with in Mullah’s principle of Mohammedan Law, in paras 260 to 264. (1) Sahil, i.e., a valid marriage being in conformity with all the rules, mandatory and directory, of marriage under the Muslim Law. Such a marriage creates between the parties mutual rights, duties and obligations as per Islamic Law. (2) Batil, i.e. a void marriage, the prohibition against which is perpetual and absolute, e.g., marriage between two persons standing in prohibited degree of relationship by consanguinity or affinity or fostage or marriage with another man’s life. Such a marriage is non est in the eye of law. It does not create any civil rights or obligations between the parties. The offspring of a void marriage is illegitimate. (3) Fasid, i.e., irregular marriage which is not per se unlawful, but unlawful in its attributes, eg., a marriage without witnesses or requisite number of witnesses, marriage with a woman undergoing iddat, marriage affected by unlawful conjunctions, marriage of a 5th wife during the subsistence of the marriage with 4 others, marriage with a nonmuslim wife etc. An irregular marriage does not create mutual rights of inheritance between the husband and the wife but the children are legitimate.
30. I have to my advantage a Division Bench decision of the Kerala High Court in the case of Amina vs. Hassan Koye [1985 Cr. L.J 1996] , wherein the Court, in details, has explained marriage and polygamy under Islam. “13. "Marriage (nikah) among Muslims is a 'solemn pact' (mithaqeghalid) between a man and a woman, soliciting each other's life companionship, which in law takes the form of a contract (aqd)." vide Dr. Tahir Mahmood's Muslim Law of India. We feel that we are not wrong if we say that there is an unfounded popular belief that no religious significance or social solemnity attaches to a Muslim marriage and it is merely a civil contract pure and simple. We say so because as early as in 1866 Mahmood, J. in the leading case, Abdul Kadir v. Salima (1886) ILR 8 All 149 (FB) said: "marriage among Muhammadans is not a sacrament, but purely a civil contract; and though it is solemnised generally with recitation of certain verses from the Kuran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion." The judgment was delivered by (Petheram, CJ. But it is noted in the judgment itself that by the time, the judgment was to be delivered, Mr. Justice Mahmood left the court and the written opinion of Justice Mahmood was adopted by the Full Bench, consisting of five Judges Petheram, C.J., Oldfield, Straight, Brodhurst, and Tyrrell, JJ.). In the report it may appear that Mahmood, J. was not one among the five judges. What is quoted by us from that judgment itself is a quotation adopted by the learned Judge, from the Tagore Law Lectures (1873). 14. We may at once quote what Sir Shah Muhammad Sulaiman C.J. observed in Anis Begam v. Muhammad Istafa (1933) ILR 55 All 743: (AIR 1933 All 634). He said: "It may not be out of place to mention here that Maulavi Samiullah collected some authorities showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament." Fyzee in his book 'Outlines of Muhammadan Law' said "considered juristically, marriage in Islam is a contract and not a sacrament". The statement is generally overstressed, to render the real nature of marriage obscured and to forget and ignore the other important aspects of marriage. 15. A learned commentator and exponent of Muslim Law Tyabji in his book 'Muslim Law' observes that marriage brings about a relation based on and arising from a permanent contract for intercourse and procreation of children between a man and a woman who are referred to as parties to the marriage and who after being married, become husband and wife. Neil B.E. Baillie in the book 'Digest of Moohummudan Law' tells us that "marriage is a contract which has for its design or object the right of enjoyment, and the procreation of children. But it was also instituted for the solace of life, and is one of the prime or original necessities of man", Hedaya on the Mussulman Laws informs us that nikah in its primitive sense means carnal conjunction. Some have said that it signifies conjunction generally. In the language of the law it implies a particular contract used for the purpose of legalizing generation. Marriage is contracted, that is to say, is effected and legally confirmed, by means of declaration and consent, both expressed in the preterite, because although the use of the preterite be to relate that which is past, yet it has been adopted in the law, in a creative sense, to answer the necessity of the case. Sir Roland Knyvet Wilson in his book , AngloMuhammadan Law' says that marriage is a contract for the purpose of legalising sexual intercourse and the procreation of children. It involves the rights and duties between the married persons themselves, and between each of them and the children born from the marriage, Sacred Koran teaches: "O men fear your Lord, who hath created you out of one man, and out of him hath created his wife, and from them two hath multiplied many men and women" Sacred Koran chap, iv. 8. "The Holy Prophet said: Men marry women for their piety, or their property, or their beauty : but ye should marry for piety." Trimizi, Jami,1.331. 16. We shall try to decoct the content of the above statements of the exponents and commentators and the views of the eminent judges as to the nature of the Muslim marriage. We propose to consider the concept of marriage under three broad headings, namely, legal, social and religious. Juristically, it may be a contract as opposed to a sacrament. But it cannot be considered as a contract pure and simple to be governed exclusively by the provisions of the Contract Act. Rules to be applied for interpreting a Muslim marriage are not exclusively confined and cabined within the four walls of the general statutes Contract Act and allied Acts. It is always to be understood and interpreted in the light of the personal laws of the parties and the ethic content and ethos of the institution of marriage, as popularly understood by the Muslims in the country. 17. As stated by Dr. Tahir Mahmood, it is a solemn pact between a man and a woman, though it takes the form of a contract. It has to be remembered that Holy Prophet did describe nikah (marriage) as his sunnat and every Muslim knows the sacred socioreligious significance of sunnat as recognised by the Muslim religion. We feel certain that Sacred Koran does not treat marriage as an ordinary contract, on the basis of what Holy Prophet has said on the subject. Even if we consider that a muslim marriage is a contract, it certainly require free consent of the parties as in the case of an ordinary contract. Since consent of parties is the core element of a contract, juristically as well as in the concept of Muhammadan Law, we have to consider the question of consent in detail in this case. We defer the consideration relating to consent now and we pass on to consider the other two aspects of the marriage. Social aspect: 18. The social contents of marriage as admitted by the writers of Islamic Law can be serialised as : (1) Islamic Law gives to the woman a definitely high social status after marriage; (2) restrictions are placed upon the polygamy of pre Islamic time, and a controlled polygamy under exceptional and extraordinary circumstances is allowed, (3) The Holy Prophet, both by example and precept, encouraged the status of marriage. 19. There is a wellknown adage attributed to the Holy Prophet: "There is no monkery in Islam". This adage reveals the attitude of Holy Prophet towards celibacy very briefly and adequately. 20. We may now tell one other aspect which, would silhouette profile of a popular misconception attached to Muslim marriage law. The misconception is the belief that the Holy Prophet has given his imprimatur and has recognized polygamy among Muslims. We think that those who battologize and recite verses of the Sacred Koran or cite Holy Prophet for finding licitness and authority for the practice of controlled polygamy restricted to four wives are really offenders of Islamic Law. The great jurist Ameer Ali said: "The conviction is gradually forcing itself on all sides, in all Muslim communities, the polygamy is as much opposed to Islamic laws as it is to the general progress of civilised society and true culture. In consequence of this conviction a large and growing section of Islamists regard the practice of polygamy as positively unlawful". The supporters of polygamy quote the Holy Koran Chapter IV, Verse 3. " And if you fear that you cannot do justice to orphans, marry such women as seem good to you, two, or three, or four; but if you fear that you will not do justice, then (marry) only one or that which your right hands possess. This is more proper that you may not do justice.'’, But Chapter IV, Verse 129 runs thus: , "Ye are never able to be fair and just as between women, even if it is your ardent desire" "It is admitted on all hands that this Chapter was revealed to guide the Muslims under the conditions which followed the battle of Uhud " (The Holy Quran by Maulana Muhammad Ali). A. Yusuf Ali interpreting the original text of Sacred Koran has said that Holy Prophet has only described the practice of polygamy that was prevalent at that time. Of course Holy Prophet allowed an exception under the peculiar postwar (battle of Uhud) circumstances, where there were too many females and orphans and less males. Holy Prophet himself even in that circumstance realised the agonising difficulty an impossibility of treating two or more wives with even justice, care, love and affection enjoined that a Muslim should have only one wife. We feel that Koranic injunction is monogamy and the deviation should be a rare exception. A. Yusuf Ali again says that practice of polygamy is the practice of the "Times of Ignorance". Mr. Justice Hidayattullah felt an urgent necessity of the modernisation of the family law of the Muslims including the abolition of polygamy, he said so in his Introduction to Mulla's Principle of Mahomedan Law. 21. Imbibed by the spirit of Koranic injunctions several Muslim countries codified their personal law interdicting the practice of polygamy by imposing total prohibition or severe restrictions. In Pakistan, on the recommendations of the Commission on Marriage and Family Laws, Ordinance No. VIII of 1961 was passed on 15th July, 1961. S. 6 of that Ordinance tells us that in Pakistan, it is not possible to practice polygamy without permission from the Arbitration Council. We quote section 6. "6. Polygamy. (1) No man during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance. (2) An application for permission under sub section (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee, and shall state the reasons for the proposed marriage, and whether the consent of the existing wife or wives has been obtained thereto. (3) On receipt of the application under sub sec. (2), the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may be deemed fit, the permission applied for. (4) In deciding the application the Arbitration Council shall record its reasons for the decision, and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, in the case of West Pakistan, to the Collector and, in the case of East Pakistan, to the SubDivisional Officer concerned and his decision shall be final and shall not be called in question in any court. (5) Any man who contracts another marriage without the permission of the Arbitration Council shall (a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and (b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both." Some of the countries who have reformed their law on this subject are Syria, Tunisia, Morocco, Pakistan and Iran. We close our discussion on this point by repeating the words fallen from the founding fathers of the Constitution in Art. 44 of the Constitution. "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."
31. The Supreme Court in the case of Sarla Mudgal (supra), while examining the question whether a Hindu husband, married under the Hindu Law, by embracing Islam, can solemnize second marriage and whether such a marriage, without having the first marriage dissolved under the law, would be a valid marriage qua the first wife who continue to be Hindu, made the following observations in paras 32, 33, 34, 35, 36 and 37 as under: “32. One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law personal law of the Hindus governing inheritance, succession and marriage was given goby as back as 195556 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country. 33. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25,26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a "common civil Code" for the whole of India. 34. It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to "public morals", even though some religion may make it obligatory or desirable for its followers. It can be superseded by the State just as it can prohibit human sacrifice or the practice of "Suttee" in the interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act(III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955). 35. Political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mahomedans. The 1772 Regulations followed by the Regulations of 1781 whereunder it was prescribed that either community was to be governed by its "personal" law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in twonation or threenation theory and that in the Indian Republic there was to be one Nation Indian nation and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation not religion being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded / supplemented by introducing a uniform civil code.In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. 36. The Successive Government tilldate have been wholly remiss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. 37.We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil code throughout the territory of India."
32 The Supreme Court in Lily Thomas (supra) while reaffirming its view taken in the case of Sarla Mudgal (supra), observed in para 36 as under: “36. The position under the Mahommedan Law would be different as, in spite of the first marriage, a second marriage can be contracted by the husband, subject to such religious restrictions as have been spelled out by Brother Sethi, J. in his separate judgment, with which I concur on this point also. This is the vital difference between Mahommedan Law and other personal laws. Prosecution under S. 494 in respect of a second marriage under Mahommedan Law can be avoided only if the first marriage was also under the Mahommedan Law and not if the first marriage was under any other personal law where there was a prohibition on contracting a second marriage in the lifetime of the spouse.”
33.1 Mr. Hakim, the learned amicus very ably and lucidly explained the tenets of Islam and its teachings. The word “Islam” means “peace and submission”. In its religious connotation it is understood as "submission to the Will of god." According to Fyzee (Outlines of Mohammadan Law, IInd Edition) in its secular sense the establishment of peace. The word 'Muslim' in Arabic is the active principle of Islama, which means acceptance of faith, the noun of which is Islam. Muslim Law is admittedly to be based upon a well recognised system of jurisprudence providing many rational and revolutionary concepts, which could not be conceived by the other systems of Law in force at the time of its inception. Sir Ameer Ali in his book Mohammedan Law, Tagore Law Lectures IV Edition, Volume I has observed that the Islamic system, from a historical point of view was the most interesting phenomenon of growth. The small beginnings from which it grew up and the comparatively short space of time within which it attained its wonderful development marked its position as one of the most important judicial system of the civilised world. The concept of Muslim Law is based upon the edifice of Shariat, Muslim Law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between cowives in law is a condition precedent. Even under the Muslim Law plurality of marriages is not unconditionally conferred upon the husband.
37 It is in reference to the above referred passages that the jurist on Islamic Law; Asaf A.A. Fyzee commented: "Polygamy is only permissive in Islam. It is not the fundamental right of a Muslim to have four wives; therefore, it cannot be said that any provision of law in favour of monogamy involves a violation of Article 25 of the Constitution." (Asaf A.A. Fyzee: Outlines of Mohammadan Law p. 212). In reference to marriage, under subject, 'Cruelty', Fyzee observes: "Muslim law permits polygamy but does not encourage it, and the Koranic injunction (Koran iv, 3) shows that in practice perfect equality of treatment on the part of the husband is, for all practical purposes, impossible of achievement. Hence, 'Muslim law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged. (Ibid.) The underlined portion Fyzee noticed from the comment of a decision of the Allahabad High Court in re: Itwari v. Ashari, 1960 AIR (All)684.
41. In view of the above and in the absence of any uniform Civil Code, I find merit in the submissions of the learned amicus that the expression “marries in any case in which, such marriage is void by reason of its taking place during the life of such husband or wife” merely means that the person who marries a second time during the life of his or her first spouse would be punished under Section 494 of the IPC, only if such second marriage is not recognized by the Personal Law, by which he or she is governed. The section does not require that the second marriage with the person concerned must, otherwise, be valid according to law (See: AIR 1961 Punjab 167)
43.3. Polygamy and the unilateral talaq without the wife's consent offends Article 14 ("Equality before law for all") and Article 15 (the State's nondiscrimination on grounds of caste, religion, sex, etc.). If the State tolerates this law, it becomes an accomplice in the discrimination of the female, which is illegal under its own laws.
46. I may usefully quote the observations of late Justice Chagla in the case of State of Bombay v. Naraya [AIR 1952 Bombay page 84] as under: “5. Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. A very interesting and instructive case is to be found in the American Reports, viz. Davis v. Beason, (1889) 133 US 637. In that case it was contended that polygamy was part of the creed of the Mormon Church and any legislation which penalises polygamy to the extent that it affected Mormons was contrary to the First Amendment of the Constitution which provided that Congress shall not make any law respecting the establishment of religion or forbidding the free exercise thereof. This argument was rejected, and Mr. Justice Field delivering the opinion of the Court pointed out that (p. 640) : "The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter." He further pointed out that the First Amendment could not be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. He further pointed out that (p. 640) : "Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal." Further on he states (p. 640) : "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." It is only with very considerable hesitation that I would like to speak about Hindu religion but it is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion.It is perfectly true that Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. That same religion also recognizes the institution of adoption. Therefore, the Hindu religion provides for the continuation of the line of a Hindu male within the framework of monogamy. “9. There can be no doubt that the Muslims have been excluded from the operation of the Act in question. Even S. 494, Penal Code, which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslims because polygamy is recognised as a valid institution when a Muslim male marries more than one wife. The question that we have to consider is whether there is any reasonable basis for creating the Muslims as a separate class to which the laws prohibiting polygamy should not apply. Now, it is an historic fact that both the Muslims and the Hindus in this country have their own personal laws which are based upon their respective religious texts and which embody their own distinctive evolution and which are coloured by their own distinctive backgrounds. Article 44 itself recognises separate and distinctive personal laws because it lays down as a directive to be achieved that within a measurable time India should enjoy the privilege of a common uniform Civil Code applicable to all its citizens irrespective of race or religion. Therefore, what the Legislature has attempted to do by the Hindu Bigamous Marriages Act is to introduce social reform in respect of a particular community having its own personal law. The institution of marriage is differently looked upon by the Hindus and the Muslims. Whereas to the former it is a sacrament, to the latter it is a matter of contract. That is also the reason why the question of the dissolution of marriage is differently tackled by the two religions. While the Muslim law admits of easy divorce, Hindu marriage is considered indissoluble and it is only recently that the State passed legislation permitting divorce among Hindus. The State was also entitled to consider the educational development of the two communities. One community might be prepared to accept and work social reform; another may not yet be prepared for it; and Art. 14 does not lay down that any legislation that the State may embark upon must necessarily be of an allembracing character. The State may rightly decide to bring about social reform by stages and the stages may be territorial or they may be community wise. From these considerations it follows that if there is a discrimination against the Hindus in the applicability of the Hindus Bigamous Marriages Act, that discrimination is not based only upon ground of religion. Equally so, if the law with regard to bigamous marriages is not uniform, the difference and distinction is not arbitrary or capricious, but is based upon reasonable grounds.”
54 In view of the above, so far as the offfence punishable under Section 494 of the IPC is concerned, I am left with no other option but to accept the submission of Mr. Joshi that his client cannot be prosecuted or the offence punishable under Section 494 of the IPC. To this extent, the petition will have to be allowed, and is, accordingly, allowed.
56 An act of cruelty contemplated under Section 498A of the IPC can be either physical or mental. A woman may be subjected to acts of cruelty by mentally torturing her in various forms. In this case, the complaint lodged by Sajeda, prima facie, shows that she was subjected not only to physical cruelty, but also to such an extent by mental cruelty on account of a demand for dowry that she was forced to leave her matrimonial home and to live with her father at Bhavnagar. In fact, the brother of Sajeda was called from Bhavnagar, and, was forced to take Sajeda back to Bhavnagar. This happened when Sajeda was seven months pregnant. After she was driven out of her matrimonial home from Chhattisgarh, she delivered a baby, sometime in June 2001. No efforts were made by the petitioner to take Sajeda back to her matrimonial home. If a newly married woman is subjected to such cruelty, as is narrated in the complaint and is driven out of her matrimonial home with seven months of pregnancy, then there is no element of doubt that after having been forced to live at her parental home, the mental cruelty inflicted upon Sajeda by the petitioner could be said to have continued on account of no efforts having been made by the petitioner to take her back to her matrimonial home.
57 Section 178 of the Code of Criminal Procedure reads as under : "178. Place of inquiry or trial. (a) When it is uncertain in which of several local areas an offence was committed, or (b) where an offence is committed partly in one local area and partly in another, or (c) where an offence is continuing one, and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.”
58. Section 179 of the Code of Criminal Procedure reads as under : "179. Offence triable where act is done or consequence ensues. When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued".
60. In the case of State of Bihar v. Deokaran Nenshi and Anr., reported in (1972) 2 SCC 890 : (AIR 1973 SC 908), it was observed by the Apex Court that a continuing offence is one which is susceptible of continuance and is distinguished from the one which is committed once and for all. It is one of those offences which arise out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or noncompliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.
61 The expression "cause of action" is normally used in civil cases. In Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. However, the variations in expression do not really make any difference relating to jurisdiction of a Court to try a case.
62 "Cause of action" consists of a bundle of facts, which would go to enforce the legal enquiry for redress in a Court of law. In other words, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, comprises in cause of action.
71 The decision of the Supreme Court in the case of Y. Abraham Ajith (supra) would not save the situation for the petitioner. The facts are clearly distinguishable since in Y. Abraham Ajith (supra) the actual nature of the acts of cruelty or harassment has not been mentioned. It does not show in any manner that the acts of cruelty had, in any manner, continued at Chennai. It does not show whether the cruelty was physical or mental. It does not dwell with regards to the provisions in Section 179 of the Cr.P.C. It was held that since no part of the cause of action arose in the maternal home at Chennai but wholly arose at Nagercoil, the matrimonial home, the concerned Magistrate at Chennai had no jurisdiction to deal with the matter. 72 The case of Sujatha Mukherjee (Smt.) v. Prashant Kumar Mukherjee, 1997 (5) SCC 30 : 1997 Cri LJ 2985 applies to the present case. In that case, the husband also went to the maternal home of the wife and had assaulted her. In that factual background, Clause (c) of Section 178 of Cr.P.C. was attracted. It was held that the offence was a continuing offence and was also committed at the matrimonial home also giving jurisdiction to the Court situated there. In the present case, the petitioner did not even bother to inquire about the daughter born in July 2001. He must not have even seen his daughter till this date. He ignored Sajeda and never brought her back to Chhattisgarh.
73 If the conduct, omission or commission is of such a nature which results either in mental or physical harassment, it will amount to an act of cruelty to the woman and it would be immaterial whether the woman, at the relevant time was living at her matrimonial house or at her parents house. The offence under Section 498A of the IPC is a continuing offence, and if the act of cruelty continues, even while the woman is living at her parents’ house, the offence is triable by both the Courts in whose territorial jurisdiction the acts of cruelty have been committed. Sajeda was subjected to cruelty at her matrimonial house at Chhattisgarh and was driven out, and thereby, forced to live with her parents and brother at Bhavnagar. Sajeda had been left with no other option, but to go back to her parents’ house for shelter, and in any case, if she was asked to prosecute her case under Section 498A of the IPC at her matrimonial home, it would amount to deprivation of her right to prosecute the case, since, as a deserted lady, she would not be able to prosecute her case properly there.
74 It can, therefore, be said that the offence under Section 498A of the IPC, initially, committed by the petitioner at Chhattisgarh, was not only a continuing offence, but also that such consequence had ensued at Bhavnagar, as would amount to an offence under Section 498A of the IPC. In this view of the matter, under Clause (C) of Section 178 as also under Section 179 of the Cr.P.C., the Court at Bhavnagar has the jurisdiction to try the offence under Section 498A and the other offences of the IPC.
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