M.B. Sharma, J.
1. As the miscellaneous petition Under Section 482 Cr.P.C. and the Criminal revision arise out of the same case, they can conveniently be disposed of by a common order.
2. The facts necessary to appreciate the points involved in the case are these. Non-petitioner Smt. Priti Parihar was married to the petitioner No. 1 Kailash Singh Parihar. The other petitioners Kan Singh Parihar, Kamla Parihar and Madho Singh Parihar are the father, mother and brother respectively of Kailash Singh Parihar. The petitioner No. 5 Meena is said to be the married wife of Kailash Singh Parihar. It is not disputed that the non-Retitioner Priti Parihar was married t0 Shri Kailash Singh Parihar. Kailash Singh parihar, had filed an application for dissolution of his marriage with the non-petitioner Under Section 13 of the Hindu Marriage Act, 1955(hereinafter referred to as the 'Act'). The marriage of the non-petitioner with Kailash Singh Parihar was dissolved by a decree of divorce by the learned District Jcdge, Jodhpur under his judgment dated Jan. 4, 1977. The appeal filed by the non-petitioner against the aforesaid judgment also did not succeed and was dismissed on Apr. 4, 1978. Thereafter the non-petitioner filed a special appeal Under Section 18 of the High Court Ordinance which is pending. In that special appeal a Division Bench of this Court dealing with the stay matter interpreting Section 15 of the Act, observing that it is also applicable to special appeal and because the special appeal has been filed and has been admitted, it shall no longer be open to either Party to marry again during the pendency of the appeal, did not think it proper to pass any specific order.
3. The non-petitioner Priti Parihar filed a complaint against the petitioners in the Court of Judicial Magistrate No. 1, Jodhpur for offence u/ss. 494, 109, 114 and 496 IPC alleging therein that in spite of the orders of the Division Bench of this Court dated Aprl. 11, 1978, referred to above, Kailash Singh Parihar solemnised a second marriage with Meena, petitioner No. 5 on Aprl. 6, 1980. The statement of Priti Parihar Under Section 202, Cr.P.C. and of Digvijay Singh was recorded and the learned Magistrate took cognizance of offence Under Section 494 IPC against the petitioner No. 1 Kailash Singh Parihar and Under Section 494 r./w. Section 114 against the other petitioners and issued process Under Section 204 of the Cr. P, C.
4. A petition Under Section 482 Cr.P.C. was preferred in this Court for quashing the prooceedings as well as against the order of the learned Magistrate under which he ordered on March 7, 1981 that the application u/s 245(2) Cr.P.C. of the accused will be disposed of when all the accused were served. The revision has been filed against the order taking cognizance of an offence and issue of process.
5. I have heard the learned Counsel for the parties and it may be stated at the very outset that even' if some offence other than the one for which cognizance has been taken is made out even then the order issuing process cannot be quashed. The question is whether on the material on record and in the facts and circumstances of this case there was sufficient ground with the Magistrate for proceeding and issuing process Under Section 204 of the Cr.P.C. for an offence u/s, 494 or 496 IPC That facts as already stated earlier are not disputed and though a special appeal is pending but the marriage of Priti Parihar with Kailash Singh Parihar has been dissolved by a decree of divorce Under Section 13 of the Act by the learned District Judge under his judgment dated Jan. 4, 1977. In view of the judgment of their Lordships of the Supreme Court in Lila Gupta y. Laxmi Narain : 3SCR922 , it can be said that marriage performed in contravention of the proviso to Section 15 of the Act as it was before its deletion by Section 9 of Act 68 of 1976, is not void. Their Lordships in the aforesaid judgment posed a question whether a marriage contracted in contravention of or in violation of the proviso to Section 15 is not void but merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage After reviewing the various provisions of the Act and the authorities cited at para 20 their Lordships observed:
Thus, examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to Section 15, it cannot be said that such marriage would be void.
While reaching the aforesaid conclusion their Lordships also deal with the effect of deletion of proviso of Section 15 of the Act by Section 9 of the Hindu Marriage Laws (Amendment) Act. 1976. Their Lordships also referred to Marsh v. Marsh AIR 1945 PC 188 in which the provisions of the Divorce Act which prohibited marriage by parties whose marriage was dissolved by a decree of divorce during the period of limitation prescribed for appeal were under consideration. A contention was raised before their Lordships that the marriage performed during the period of prohibition was void being in violation of the statutory provision. Their Lordships negatived the aforesaid contention and held that the decree absolute was a valid decree and it dissolved the marriage from the moment it was pronounced and at the date when the appeal by the intervener abated, it stood unreversed. It was further observed that merely because neither spouse could re-marry until the time for appealing had expired it in no way affects the full operation of the decree and that it is a judgment in form and unless and until a court of appeal reversed it, the marriage for all purposes is at an end. In my opinion, therefore, it cannot be said that a marriage solemnised in violation of Section 15 of the Act is void.
6. Section 494 IPC will only apply in case either spouse having the other spouse living again marries and such marriage is void by reason of it taking place during the life of the first wife. Under Section 11 of the Act a marriage solemnised in contravention of the con-t ditions specified in cls. (i, (iv) and (v) of Section 5 of the Act is null and void and can be so declared by a decree of nullity on a petition presented by either party thereto; there is no provision in the Act making a marriage solemnised in contravention of Section 15 of the Act as void. As stated earlier a marriage solemnised in contravention of Section 15 of the Act is not void and therefore, even prima facie no case Under Section 494 I. P. C, when the complaint was filed, was made out. In fairness to Mr. Bhoot, the learned Counsel for the non-petitioner, he does not contest this legal position and his only contention is that at any rate an offence Under Section 496 IPC is made out and therefore, it is not such a case in, which this Court should quash the order for taking cognizance of an offence and issuing process,
7. The contention of Mr. Bhoot for the petitioner is that the marriage with Meena was performed secretly, fraudulently or dishonestly and knowing fully well that in view of the provisions of Section 15 of the Act the marriage so solemnised is invalid and, therefore, an offence Under Section 496 IPC is prima facie made out and the process was rightly issued. Though it is disputed, by the accused Kailash Singh Parihar that he went through the necessary ceremonies of marriage with Meena but for the disposal of these two cases at hand and there being the statement of Digvijay Singh on record. I will assume though express no final opinion that necessary ceremonies of marriage were gone through. The question is as to whether from the complaint or the statement recorded Under Section 202 Cr, P. C. even prima facie the necessary ingredients of an offence Under Section 496 IPC are made out. The necessary ingredients Under Section 496 IPC are (1) that the accused went through the ceremony of marriage, (2) that when he went through such ceremony, the accused knew that notwithstanding those ceremonies, he was not thereby lawfully married to the complainant and (3) that he went through the ceremonies dishonestly or with a fraudulent intention. Let me now see the complaint. There are no allegations of dishonesty or fraudulent intention in going through the marriage ceremonies in the complaint by accused Kailash Singh Parihar. All that is mentioned is that though he and the other accused persons had the knowledge of the above referred to order dt. April 11. 1978, of the Division Bench of this Court that in view of Section 15 of the Act during the pendency of the special appeal, neither spouse could marry but still the accused persons solemnised the marriage. There is no allegation that the fact that the appeal was pending and the marriage could not be performed was concealed by any of the accused from Meena or her parents. If the facts are disclosed or otherwise also are in knowledge of the person said to be deceived, then to my mind the act cannot be said to be performed with dishonest intentions or fraudulently. Priti Parihar the petitioner, on the other hand, in her statement Under Section 202 Cr.P.C. has admitted that Meena was knowing these facts at the time of her marriage. The case of Priti Parihar is that during the subsistence of the first marriage when the wife is living second marriage has been contracted by Kailash Singh Parihar. her husband. The allegations make a clear case of bigamy which is an fence punishable Under Section 494 IPC by as stated earlier the marriage not being void no offence Under Section 494 IPC is made out. An offence Under Section 494 is different from an offence Under Section 496 IPC If the accused intends that there should be a valid marriage and honestly goes through the necessary ceremonies during the lifetime of the other spouse, then it may be a case u/s, 494 I, P. C. but if the accused only intends that there should only be a show of marriage and dishonestly or fraudulently goes through the marriage ceremony knowing fully well that he is not legally married then it is an offence Under Section 496 IPC The learned Advocate for the non-petitioner submits that from the application for contempt of the order of the Division Bench and the reply wherein Kailash Singh Parihar has even denied the marriage, a clear case of his fraudulent or at least dishonest intention is made out. After having gone through the complaint and the statements recorded Under Section 202 Cr. P. C and the other record, I am of the opinion that prima facie there is no allegation of dishonestly or fraudulently going through the ceremony of marriage with Meena by accused Kailash Singh Parihar.
8. In the result, I am of the definite opinion that there were no sufficient grounds with the Magistrate for proceeding and, therefore, the learned Magistrate committed an illegality while issuing process against the petitioners Under Section 204 Cr.P.C. for an offence Under Section 494 IPC or any other offence. After having gone through the complaint and the statements on the record, I am of the opinion that it is a fit case in which there is no sufficient ground to proceed against the petitioners.
9. In the result I allow the revision petition quashing the order of the Magistrate under which cognizance of the offence was taken against the petitioners and process was issued. In view of this it is not necessary to decide the miscellaneous petition No. 101/1981, which automatically stands disposed.