In Kanwal Ram and others v. The Himachal Pradesh
Admn. AIR 1966 SC 614 this Court again reiterated the
principles laid down in the earlier decision referred to
above that in a prosecution for bigamy the second
marriage has to be proved as a fact and it must also be
that
the
necessary
ceremonies
proved
had
been
performed. Another proposition laid down by this decision,
which answers the second contention of the learned
counsel for the appellant, is, that admission of marriage by
an accused is no evidence of marriage for the purpose of
proving an offence of bigamy or adultery. .......IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 51 of 2006
Date of Decision 9th May, 2013
State of H.P.
Versus
Rajinder Kumar
Coram
The Hon’ble Mr. Justice Dev Darshan Sud, J.1
Citation;2013 CRLJ 4147 (HP)
The State is aggrieved by the judgment of the
learned trial Court for acquitting the accused for offences under
Section 498-A, 494 read with Section 34 of IPC.
2.
The case of the prosecution, in brief, is that
complainant Nirmala Devi was married to accused Rajinder
Kumar (sic Singh) on 6.12.2000. The prosecution alleges that
Kamlesh, the second accused before the learned trial Court, is
the brother of Rajinder Kumar, the first accused. Bhajan Singh
and Satya Devi are the father and mother of this accused. It is
alleged that the complainant was constantly harassed by the
accused for not meeting their demands for dowry. Initially one
demand was met, but later on, another demand of Rs. 3000/-
was made. When it was not complied with she was assaulted and
beaten. When this money was paid, the accused Rajinder Kumar
spent it on consuming liquor. Another demand of ` two lakhs was
made so that the accused could purchase a maruti van. The gist
of the offence against the accused is that not only did they treat
the complainant with cruelty within the meaning of Section 498-A
IPC, but Rajinder the first accused performed a second marriage
in contravention of the provisions of Section 494 IPC . The
prosecution has examined 17 witnesses in all to establish its
case.
On the evidence on record, the learned Judicial
3.
Magistrate after a detailed consideration of the evidence
concluded that no offence as alleged has been made out against
the accused and they were acquitted for the said offences.
4.
It is this order which is now challenged in appeal.
Learned Additional Advocate General submits that testimony of
the prosecution witnesses has not been considered in its true
perspective. The learned trial Court only relies upon selective
portions of the evidence in order to garner out those portions,
which are favourable to the accused, resulting in acquittal.
Learned Additional Advocate General also submits that the
second marriage stands proved by none other than PW14 Pandit
Roop Chand Sharma who performed the marriage and stated in
clear and uncertain terms that marriage was not only performed
by him but also entered in the Register Ext.PW14/A and he
issued Ext.P1 which is the certificate evidencing the marriage of
the accused. In particular, learned Additional Advocate General
submits that this witness having categorically stated that the
marriage was performed in accordance with “Hindu rites”, no
other or further proof was required for proving this offence.
I advert to the evidence of this witness. PW14 states
5.
in his examination in chief that he performs the marriages of
Hindus in accordance with the Hindu tradition and the exact
words used by him are:-
“......main Hindu riti-riwaz ke anusar saat feron dwara
rt
ichhit jodo kaa vivah karwata hoon....”
(Stated that I perform the marriages of the interested
persons in accordance with the Hindu rites and customs
by asking them to perform seven feras.)
He then states that he had performed the marriage of the
accused according to Hindu customs, but no where states that
ceremony of ‘saptapadi’ was performed. The law on this point is
now well settled. In Kanwal Ram and others vs. The Himachal Pradesh
Administration AIR 1966 SC 614 the Supreme Court considering this
aspect holds:-
“6.
It was contended for the appellants that this
evidence was not enough to show that the marriage of
Kubja and Kanwal Ram can be said to have been
performed. We think this contention is justified. In Bhaurao
Shankar Lokhande v. State of Maharashara Cri. Appeal No.
178 of 1963, unreported: (since reported in AIR 1965 SC
1564), this Court held that a marriage is not proved unless
the essential ceremonies required for its solemnization are
proved to have been performed. The evidence of the
witness called to prove the marriage ceremonies showed
that the essential ceremonies had not been performed. So
that evidence cannot justify the conviction. The trial Court
also
took
the
same
view.
The
learned
Judicial
Commissioner does not seem to have taken a different
view.
7.
The
learned
Judicial
Commissioner,
however,
thought that apart from the evidence about the marriage
ceremonies earlier mentioned there was other evidence
which would prove the second marriage. He first referred
to a statement by the appellant Kanwal Ram that he had
sexual relationship with Kubja. We are entirely unable to
agree that this, even if true, would at all prove his marriage
with Kubja. Then the learned Judicial Commissioner relied
on a statement filed by Kubja, Hira Nand and Hiroo in
answer to an application for restitution of conjugal rights
filed by Sadh Ram against Kubja and others, in which it was
rt
stated that Kubja married Kanwal Ram after her marriage
with Sadh Ram had been dissolved. Now the statement
admitting the second marriage by these persons is
certainly not evidence of the marriage so far as Kanwal
Ram and Seesia are concerned; they did not make it. Nor
do we think, it is evidence of the marriage even as against
Kubja. First, treated as an admission, the entire document
has to be read as a whole and that would prove the
dissolution of the first marriage of Kubja which would make
the second marriage innocent. Secondly, it is clear that in
law such admission is not evidence of the fact of the
second marriage having taken place. In a bigamy case, the
scond marriage as a fact, that is to say, the ceremonies
constituting it, must be proved: Empress v. Pitambur Singh,
ILR 5 Cal 566(FB), Empress of India v. Kallu, ILR 5 All 233,
Archbold, Criminal Pleading Evidence and Practice (35th
Ed.) Art. 3796. In Kallu’s case, ILR 5 All 233 and in Morris v.
Miller, (1767)4 Burr 2057:98 ER 73, it has been held that
admission of marriage by the accused is not evidence of it
for the purpose of proving marriage in an adultery or
bigamy case: see also Archbold,Criminal Pleading Evidence
and Practice (35th Ed.) Art.3781. We are unable, therefore,
to think that the written statement of Kubja affords any
assistance towards proving her marriage with Kanwal
Ram.”
(at p.614-615)
7.
This principle does not need any reiteration as again
the Supreme Court was at pains to point out that:-
in Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh, 1971(1) SCC 864
“10........Section 5 of the Act lays down conditions for a
Hindu marriage. It will be seen that one of the conditions is
that referred to in clause (1) namely, that neither of the
parties has a spouse living at the time of the marriage.
is as follows:
Section 7 dealing with the ceremonies for Hindu marriage
“Section 7. Ceremonies for a Hindu marriage-(1) A
Hindu marriage may be solemnized in accordance with the
customary rites and ceremonies of either party thereto.
Where such rites and ceremonies include the
(2)
Sapatapadi (that is the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire),
the marriage becomes complete and binding when the
seventh step is taken.”.........
11.
Section 11 of the Act deals with void marriages. One
of the conditions, if contravened, which makes a marriage
solemnized after the commencement of the Act, null and
void, is, if any party thereto has a spouse living at the time
of the marriage.
12.
Section 17 relating to punishment of bigamy is as
follows:
“Section 17. Punishment of bigamy-Any marriage
between two Hindus solemnized after the commencement
of this Act is void if at the date of such marriage either
party had a husband or wife living; and the provisions of
Sections 494 and 495 of the Indian Penal Code (XLV of
1860) shall apply accordingly.”
13.
Again in the case before us there is no controversy
that the second marriage is stated to have been place after
the commencement of the Act during the subsistence of
the first marriage. If the second marriage has taken place,
it will be void under the circumstances and Section 494 of
the Indian Penal Code will be attracted. Section 494 of the
Indian Penal Code is as follows:
“Section 494. Marrying again during lifetime of
husband and wife-Whoever, having a husband or wife
living, marries in any case is which such marriage is void
by reason of its taking place during the life of such
husband or wife, shall be punished with imprisonment of
years, and shall also be liable to fine.”
In Bhaurao Shankar Lokhande and Another v. State
14.
either description for a term which may extend to seven
of Maharashtra and Another (1965)2 SCR 837, the question
arose whether in a prosecution for bigamy under Section
494, I.P.C., it was necessary to establish that the second
marriage had been duly performed in accordance with the
essential religious rites applicable to the form of marriage
gone through. The first appellant therein had been
convicted for an offence under Section 494, I.P.C. for going
through a marriage which was void by reason of its taking
place during the lifetime of the previous wife. The said
appellant contended that it was necessary for the
prosecution to establish that the alleged second marriage
had been duly performed in accordance with the essential
religious rites. The State, on the other hand, contended
that for the commission of the offence under Section 494,
I.P.C., it was not necessary that the second marriage
should be a valid one and a person going through any form
of marriage during the lifetime of the first wife would be
guilty of the offence. This Court rejected the contention of
the State and observed as follows:
“Prima facie the expression ‘whoever.......marries’
must
mean
‘whoever.........marries
validly’
or
‘whoever.....marries and whose marriage is a valid one.’ If
the marriage is not a valid one, according to the law
applicable to the parties, no question of its being void by
reason of its taking place during the lifetime of the
husband of wife of the person marrying arises. If the
marriage is not a valid marriage, it is no marriage in the
eye of law.”
15.
Again in interpreting the word “solemnize” in
Section 17 of the Act, it was stated:
“The word ‘solemnize’ means in connection with a
marriage,
‘to
celebrate
the
marriage
with
proper
ceremonies and in due form’, according to the Shorter
Oxford Dictionary. If follows, therefore, that unless the
marriage
is
‘celebrated
or
performed
with
proper
ceremonies and due form’ it cannot be said to be
‘solemnized’. It is therefore essential for the purpose of
Section 17 of the Act, that the marriage to which Section
494, I.P.C. applies on account of the provisions of the Act,
should have been celebrated with proper ceremonies and
in due form. Merely going through certain ceremonies with
the intention that the parties be taken to be married, will
not make the ceremonies prescribed by law or approved by
any established custom.”
16.
From the above quotations it is clear that if the
alleged second marriage is not a valid one according to law
applicable to the parties, it will not be void by reason of its
taking place during the life of the husband or the wife of
the person marrying so as to attract Section 494, I.P.C.
Again in order to hold that the second marriage has been
solemnized so as to attract Section 17 of the Act, it is
essential that the second marriage should have been
celebrated with proper ceremonies and in due form.
17.
In the said decision this Court further
considered
the question whether it has been established that with
respect to the alleged second marriage the essential
ceremonies for a valid marriage have been performed.
After referring to the passage in Mulla’s Hindu Law, 12th
Edn. at page 615 dealing with the essential ceremonies
which have to be performed for a valid marriage, this Court
on the evidence held that the prosecution had neither
established that the essential ceremonies had been
abrogated by the custom governing the community to
which the parties belonged. In this view it was held that the
prosecution in that case had failed to establish that the
alleged
second
marriage
had
been
performed
in
accordance with the requirement of Section 7 of the Act.
The effect of the decision, in our opinion, is that the
prosecution has to prove that the alleged second marriage
had been duly performed in accordance with the essential
religious rites applicable to the form of the marriage gone
through by the parties and that the said marriage must be
a valid one according to law applicable to the parties.
18.
In Kanwal Ram and others v. The Himachal Pradesh
Admn. AIR 1966 SC 614 this Court again reiterated the
principles laid down in the earlier decision referred to
above that in a prosecution for bigamy the second
marriage has to be proved as a fact and it must also be
that
the
necessary
ceremonies
proved
had
been
performed. Another proposition laid down by this decision,
which answers the second contention of the learned
counsel for the appellant, is, that admission of marriage by
an accused is no evidence of marriage for the purpose of
proving an offence of bigamy or adultery. .......
Further, as pointed out by this court in Kanwal
rt
23.
........
Ram’s case (supra) the admission in Ex.2 cannot in law be
treated as evidence of the second marriage having taken
place, in an adultery or bigamy case, and that in such
cases it must be proved by the prosecution that the second
marriage as a fact has taken place after the performance
of the essential ceremonies.”
8.
(at p.867-870)
(Emphasis supplied)
Again in A. Subash Babu vs. State of Andhra Pradesh and
another (2011)7 SCC 616 the Supreme Court again holds:-
“23.
In Gopal Lal v. State of Rajasthan (1979)2 SCC
170 this Court had ruled that in order to attract the
provisions of Section 494 IPC both the marriages of the
accused must be valid in the sense that the necessary
ceremonies required by the personal law governing the
parties must have been duly performed.”
(at p.628)
9.
On this point, two more decisions of the Supreme
Court in Lingari Obulamma vs. L. Venkata Reddy and others, (1979)3
SCC 80 and S. Nagalingam vs. Sivagami (2001)7 SCC 487 are relied
upon. This was also the situation in Santi Deb Verma v.Kanchan
Prava Devi 1991 Supp (2) SCC 616 reiterating that ‘saptapadi’ was
one of the essential ingredients for proving the valid marriage. It
was held:-
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9
“7.
Mr. Dutta, the learned counsel appearing on behalf
of the appellant herein assailed the impugned judgment
contending that in the absence of acceptable proof that the
marriage of the appellant with Namita Ghosh was
celebrated or performed with proper ceremonies and in
due form, it cannot be said that the marriage had been
solemnized within the ambit of the provisions of the Hindu
Marriage Act, 1955 (hereinafter referred to as the ‘Act’)
and that the finding of the High Court based on the three
letters and the oral evidence to the effect that the
appellant and Namita Ghosh were living together to the
rt
effect that the appellant and Namita ghosh were living
together as husband and wife cannot in any way serve as
proof of a valid marriage as per the Act, especially when
there is no plea that the marriage was solemnized in
accordance with the customary rites and usage which do
not include Saptapadi. In other words, it is not the case of
the respondent that the marriage was celebrated in
accordance
with
the
customs,
dispensing
with
the
ceremony of Saptapadi and usage applicable to the parties.
In fact, the courts have proceeded on the footing that
according to the parties, the ceremony of Saptapadi is one
of the essential requirements for constituting a valid
marriage.
8.
The High Court in the instant case had drawn an
inference that all the ceremonies essential for a valid
marriage had been performed on the strength of the three
letters and the oral evidence as aforementioned. We, after
going through the judgment of the High Court very
carefully, are of the opinion that the High Court is not at all
justified in drawing such an inference in the absence of any
reliable and acceptable evidence in regard to the
performance of Saptapadi. The result will be that the
alleged marriage between the appellant and Namita
Ghosh, celebrated in defiance of the law applicable to the
parties is held to be a marriage not valid in law. Hence, the
judgment of the High Court is not sustainable and
consequently, we allow the appeal by setting aside the
conviction and sentence awarded by the High Court and
acquit the appellant.”
(at pp. 617-618)
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10
under Section 7-A of the Hindu
virtue of the amendment
However, in S. Nagalingam ‘s case the Supreme Court holds that by
Marriage Act, the ‘saptapadi’ ceremonies are not required. But
there is no such amendment in the State of H.P. I do not find the
evidence of ‘saptapadi’ ceremony having been proved on record
and in these circumstances, the judgment of learned trial Court
cannot be faulted with. I hold that even in the evidence of PW11
rt
Vishal and PW12 Roop Rekha, who have been declared hostile,
there is nothing to suggest that ceremonies necessary for
solemnization of a valid marriage have been proved. On the
question of cruelty, I find that evidence is speculative but not
concrete to prove on record any demand in the form of demand
for dowry and cruel treatment meted out to the complainant. I,
therefore, find no merit in this appeal, which is dismissed. Bail
bonds furnished by the respondents stand discharged.
May 09, 2013(ms)
(Dev Darshan Sud),
Judge
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