While granting anticipatory bail to a man who was charged by his first wife of cheating, raping his second wife and bigamy, the Bombay High Court has observed that even though the first wife may be considered to have been `cheated' in common parlance, she cannot claim to be `cheated' in legal terms by the husband if he marries a second time during the subsistence of the first marriage.
While granting anticipatory bail to a man who was charged by his first wife of cheating, raping his second wife and bigamy, the Bombay High Court has observed that even though the first wife may be considered to have been `cheated' in common parlance, she cannot claim to be `cheated' in legal terms by the husband if he marries a second time during the subsistence of the first marriage.
Justice Mridula Bhatkar while confirming the interim pre-arrest bail to Sajid (name changed) said, "This is not a complaint by the second wife, but this offence is registered at the instance of information given by the first wife. In view of the definition of 'cheating', prima facie, she cannot be said to be cheated under the laws, though otherwise, in common parlance, she is cheated by him. Thus, section 420, prima facie, cannot be attracted in respect of the first wife."
As per the complaint registered by the first wife at the Indapur Rural Police station, she alleged that the accused had during their marriage harassed her and she had therefore lodged a complaint against him under section 498-A of the India Penal Code. Thereafter, she came to know about his second marriage and lodged a complaint of cheating and raping the second wife as she was allegedly a minor at the time of their marriage.
The court after going through the statement of the second wife, and the fact that she or her parents had not lodged any complaint against the accused, said, "Insofar as the offence of rape under section 376 of the Indian Penal Code is concerned, it is cognizable and non-bailable. However, it is necessary that to constitute an offence, prima facie, a statement of the victim lady should have been recorded wherein she should have said about the offence of forcible sexual intercourse without consent. However, nothing is there on record to that effect. Thus prima-facie this charge is not made out."
The bench, refusing to decide on the controversy of whether the second wife was a minor (below age of 18) at the time of marriage, said it could be decided at the time of the trial as presently, the prosecution does not have evidence to prove their claim.
Sympathizing with the first wife, the court said "It is an unfortunate case that the first wife had come across the second marriage performed by her husband when she is also a mother of a child from him. However, considering the law laid down by the legislation, the offences under sections 420 (cheating) and 376 (rape) prima facie are not made out and section 494 (bigamy) of the Indian Penal Code being non-cognizable and bailable, I am of the view that the custody of the applicant/accused is not required."
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