dipaakk.varma@gmail.com
Asked January 28, 2016

Application of Sec. 209, 211 IPC.

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My wife who is also a practicing advocate and by taking such advantage she already filed 498-A, 125 Cr.P.C., D.V. and now latest she filed new complaint case u/s.494,114 IPC against me and my entire family members.
Now in her complaint except so called birth certificates of my childrens where my name and alleged second wife's name is seen nothing on record not even date,time and place were not mentioned.
As per SC judgements to establish offence u/s 494 essential ceremonies has to be established.
With above details can I invoke section 209, 211 IPC for malicious allegations without sufficient grounds. Plz advice.

Answer 1

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Aditya Marwah
As you may know, marrying another woman while being married to one’s wife, without taking a divorce from her, is bigamy. If a woman has prima facie evidence that she is lawfully married to a man who is about to or has re-married, she can register a criminal complaint and the police are expected to stop her husband from getting remarried.   However, the burden of proof will lie on your wife (the advocate), and she will have to prove that both the marriages, her own as well as the second bigamous one, have been performed properly according to the appropriate ceremonies.[i] You are correct that essential ceremonies need to be established to prove re-marriage, but the section which governs this law is Section 17 of the Hindu Marriage Act,[ii] which states that marriage ‘solemnized’ between two adults, when their spouse was living, would be void and punishable under Sections 494 and 495. Unless the marriage is ‘celebrated or performed with proper ceremonies and in due form’, it cannot be said to be solemnized. If the husband is then found guilty of bigamy, then under Section 494,[iii] that person is then punishable with imprisonment or fine or both. Another scenario which is being considered, as you have not mentioned about the timings of your marriage, is if you married your present wife (the advocate), when you were already married to the alleged wife. It shall be lawful for you to marry again if you re-married after taking a divorce from your alleged wife, that is:[iv] After your marriage to her had been dissolved by a decree of divorce and there was no right of appeal against the decree, OR, After your marriage to her had been dissolved by a decree of divorce and the time for appealing has expired or has been dismissed, then Therefore in your case, your wife will have to prove that marriage between you and your alleged wife was ‘solemnized’, i.e. ceremonies and customs were performed while getting married, such as saptapadi, etc.[v] The mere placing on record the birth certificates as proof of marriage with the alleged wife will not be sufficient evidence and the court will most likely rule in your favour. If the court does rule in your favour, then you can file a case against your wife under Sections 209 and 211 for falsely charging you and your family with such offences, with intent to injure you,[vi] and dishonestly making false claims in court.[vii] She will then be punished with imprisonment or fine or both.     [i] Women and Hindu marriage law, available at: http://indiatogether.org/manushi/issue136/hml.htm, last accessed on 3rd February, 2016. [ii] Section 17 of The Hindu Marriage Act, available at: http://indiankanoon.org/doc/1889483/, last accessed on 4th February, 2016. [iii] Section 494 of the Indian Penal Code, available at: http://indiankanoon.org/doc/508426/, last accessed on 4th February, 2016. [iv] Section 15 of The Hindu Marriage Act, available at: http://indiankanoon.org/doc/1566829/, last accessed on 6th February, 2016. [v] Ceremonial Validity of Hindu Marriages: Need for Reform, available at: http://www.ebc-india.com/lawyer/articles/77v2a4.htm, last accessed on 6th February, 2016. [vi] Section 211 of the Indian Penal Code, available at: http://indiankanoon.org/doc/172919/, last accessed on 6th February, 2016. [vii] Section 209 of the Indian Penal Code, available at: http://indiankanoon.org/doc/323386/, last accessed on 6th February, 2016.
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