Where to file a complaint for bigomy
durga
(Querist) 05 July 2012
This query is : Resolved
Sir, I and my husband are living separately since 7 years since i cannot heed to his demand for additional money .The cases for dowry harassment and maintenance are pending in courts past 5 years and i am only shuttling from pondicherry to Kadapa all these years. He is not ready to give back my money and jewels taken during marriage and also not willing to join me since i have filed a criminal case. Meanwhile My husband has married once again without taking divorce from me and is also having a child from her though he said he has not married and not living with any women before judge at Pondicherry in maintenance case and the same was recorded. He is residing in Hyderabad with his second wife. Now if i have to give a bigomy complaint against him, Can i give it at Pondicherry? If i have to file at Hyderabad , i only will be at the great disadvantage again since i have to shuttle to Kadapa and now to Hyderabad also from Pondicherry. He was present only once at Kadapa and his brother is representing there since he is residing at Kadapa. And being a girl, my parents are not willing to send me alone and they are forcing themselves inspite of their bad health condition to accompany me. The expenses of travel and accomodation going to HYd will add further burden on me since i am not working, neither getting maintenance from him and i am completely dependent on my father and i have younger sister too. But my lawyer here says Hyd is the jurisdiction since they are living there and i have to give my complaint only there. In that case, I have to face lot of difficulties and I will be at the disadvantage side. They wont come for a settlement if i file it at Hyd since there is no difficulty for him to attend the court there. If its at Pondicherry, I am hoping that he will settle the matter soon since he has to come here all the way. Can i give a complaint here at Pondicherry (say on the ground, though i don know about these grounds, that he said he has not married again before judge here thereby misguiding the court)? Please advice.
ajay sethi
(Expert) 05 July 2012
you have already filed case under 498 A . and also for maintenance .
case for bigamy would have to be filed in hyderbad since your husband and his second wife are staying in hyderabad .
if it is an expensive proposition and involves lot of inconveninece best is to hire a detective agency obtain necessary proof of his second marriage
file case under DV in pondicherry for right to stay in shared household , compensation
Adv.R.P.Chugh
(Expert) 05 July 2012
Dear Durga,
I respectfully Disagree with your lawyer as well as Ld.Mr.Sethi on this - As per S.182(2) of Code of Criminal Procedure, 1973 - Bigamy proceedings can be filed at the place where you reside (i.e wife of first marriage has taken up residence).
This is logical because you are the victim and suferrer justice should be served to you at the place nearest and most convinient to you. File the case at your place.
As regard other cases if you had filed it at place other than your hometown - then the same can be transferred by the Supreme Court to your State.
Feel free to talk !
ajay sethi
(Expert) 05 July 2012
Sukhdev Singh and Ors. v. Sukhvinder Kaur, 1973 CLR Vol. I 625, where it was held that in an offence under Section 494, I.P.C., the only act done by the offender is marrying second time and that being so the offence would be wholly committed at the place of second marriage. Offence of Bigamy is essentially committed at the place where the second marriage takes place because it is that marriage which constitutes the offence. In 1973 CLR Vol. I 625 (supra), reliance was placed on Vasantha Krishna Swami v. M.S. Krishna Swami, AIR 1967 Madras 242.
ajay sethi
(Expert) 05 July 2012
i based my opinion on the judgement cited above . however Mr chugh is right that under section 182 (2)of Cr Pc bigamy proceedings can be filed wherein first wife is residing
ajay sethi
(Expert) 05 July 2012
Jyoti vs Joginder Pal on 2 February, 1999
Equivalent citations: I (2000) DMC 303
Author: M Singhal
Bench: M Singhal
JUDGMENT
M.L. Singhal, J.
1. This is revision against the order of Judicial Magistrate, First Class, Rohtak dated 17.7.1998 whereby Smt. Jyoti (petitioner herein) has prayed that the said order be set aside and the Magistrate, other than the one, who passed that order, be directed to proceed further with the complaint and dispose it of in accordance with law.
2. This revision has arisen in the following circumstances :
Smt. Jyoti wife of Joginder Pal instituted complaint under Sections 494/34, I.P.C. read with Sections 15/17 of the Hindu Marriage Act in the Court of Judicial Magistrate, First Class, Rohtak against her husband Joginder Pal, his father Sunder Dass and Smt. Lalita Wadhwa, the alleged second wife of joginder Pal and her father Hans Raj Wadhwa and others. Vide the impugned order, the learned Magistrate held that as the second marriage allegedly took place at Gohana, Court at Rohtak had no jurisdiction to take cognizance of this complaint. In this premise, the learned Magistrate dismissed the complaint and directed that the complaint be presented before the Court having territorial jurisdiction, and the accused persons were discharged.
3. Learned Counsel for the revision-petitioner submitted that in this case, the aggrieved person is the "first wife" who is aggrieved of the second marriage of her husband during the subsistence of her marriage with him and, therefore, the offence of Bigamy is punishable by the Court within whose jurisdiction the first wife is residing and as the first wife is residing at Rohtak, Court at Rohtak had the jurisdiction to take cognizance of the complaint. In support of this submission, he drew my attention to Section 182(2), Cr.P.C. which reads as follows :
"Any offence punishable under Section 494 or 495 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage or the wife after the first marriage has taken up permanent residence after the commission of the offence."
4. In view of the provisions of Section 182(2), Cr.P.C, that Court will have jurisdiction to try this offence within whose jurisdiction the second marriage took place or within whose jurisdiction Joginder Pal resided with Jyoti i.e. wife by the first marriage or the wife by the first marriage has taken up permanent residence after the commission of the offence. In support of this submission, he drew my attention to 1991 (2) Crl. Law Journal 789 and 1990 (2) Chandigarh Crl. Cases 102-103. Learned Counsel for the respondent, on the other hand, submitted that in view of the provisions of Section 177, Cr. P.C., offence has ordinarily to be inquired into and tried by a Court within whose local jurisdiction it was committed. In support of this submission, he drew my attention to Sukhdev Singh and Ors. v. Sukhvinder Kaur, 1973 CLR Vol. I 625, where it was held that in an offence under Section 494, I.P.C., the only act done by the offender is marrying second time and that being so the offence would be wholly committed at the place of second marriage. Offence of Bigamy is essentially committed at the place where the second marriage takes place because it is that marriage which constitutes the offence. In 1973 CLR Vol. I 625 (supra), reliance was placed on Vasantha Krishna Swami v. M.S. Krishna Swami, AIR 1967 Madras 242.
5. Learned Counsel for the petitioner submitted that law laid down in 1973 CLR. Vol. I 625 (supra) cannot hold the field now as there was no corresponding provision in the old Criminal Procedure Code like the one enshrined in Section 182(2) in the Code of Criminal Procedure, 1973. It is true that in the Code of Criminal Procedure, 1898, where was no corresponding provision like the one enshrined in Section 182(2) of the Code of Criminal Procedure, 1973 through amendment Act No. 45 of 1978. As Smt. Jyoti was putting up with Joginder Pal prior to the alleged commission of Bigamy by the latter at Rohtak and is putting up with her father at Rohtak after estrangement, in my opinion, Rohtak Court will have jurisdiction to take cognizance of the offence of Bigamy in view of the provisions of Section 182(2), Cr. P.C.
6. In view of what I have said above, learned Magistrate at Rohtak had jurisdiction to take cognizance of the offence of Bigamy against Joginder Pal and others. So, the impugned order dated 17.7.1998 passed by Judicial Magistrate First Class, Rohtak is set aside. Chief Judicial Magistrate, Rohtak is directed to take complaint titled Jyoti v. Joginder Pal and Ors., under Sections 494/34 read with Sections 15/17 of the Hindu Marriage Act on his own file and decide it in accordance with law as expeditiously as possible.
Kiran Kumar
(Expert) 05 July 2012
Section 182(2) formed part of new Cr.P.C which came into force in Jan. 1974
and the said provision was further amended in 1978.
but nice discussion :)
