The evidence of complainant shows that she has not
uttered word about the ceremonies which were followed during
her marriage with accused No. 1. The witnesses are interested
witnesses and the aforesaid evidence is not sufficient and
probable to prove any custom and ceremonies followed in their
community. Advocate for appellant placed reliance on the case
reported as AIR 2001 SC 3576 [S. Nagalingam Vs. Sivagami].
It is observed by the Apex Court that if as per the community
customs, Saptapadi is not essential, the marriage does not
became invalid, if other customs and rites followed in the
community are followed for solemnization of the marriage. There
cannot be any dispute over this proposition. Advocate for
respondent placed reliance on the case reported as 1991 AIR
(SC) 816 [Santi Deb Berma Vs. Kanchan Pravadevi]. In this
case, the Apex Court has laid down that to prove the offence
punishable under section 494 of I.P.C., it is necessary to prove
that as per the customs of community Saptapadi was not
necessary for solemnization of the marriage. In the case reported
as 2001 CRI.L.J. 1583 (Andhra Pradesh High Court) [D.
Vijayalakshmi Vs. D. Sanjeeva Reddy], the Apex Court has
laid down that first and second marriage must be proved in
accordance with the legal requirements, caste, customs of
particular caste. It is further held that absence of proof of
solemnization of any one of the marriage would defeat charge
under section 494 of I.P.C. Reliance was placed on two other cases
reported as 2001 AIR (SC) 938 [Surajmani Stella Kujur Vs.
Durga Charan Hansdah] and 2007 (2) Bom. C.R. (Cri.) 72
(Nagpur Bench) [Snehalata Kailash Ingale Vs. Kailash
8.
Rajaramji Ingale & Ors.].
The observations made by the Apex Court and the
High Court in the aforesaid cases show that the evidence given by
the complainant and her witnesses is short for proving the offence
of bigamy.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
Smt. Kerabai w/o. Ramrao Nakhate,
Versus
Ramrao S/o. Laxman Nakhate,
T. V. NALAWADE, J.
29th January, 2013.
Citation;2013 ALLMR(CRI)3515
The appeal is filed against judgment and order of
R.C.C. No. 39/1992, which was pending in the Court of Judicial
Magistrate, First Class, Mukhed. In a private complaint filed by
appellant for offence punishable under section 494 r/w. 109 of
Indian Penal Code, respondents are acquitted.
Both the sides are heard. This Court has gone through
original papers.
In short, the facts leading to the institution of the
appeal, can be stated as follows :-
The original complainant is the first wife of accused
No. 1. Accused No. 2 is second wife of accused No. 1. Other
accused are either relatives of the accused No. 1 or accused No.
2. There are allegations against them that they had actively
participated in the second marriage of accused No. 1 and accused
No. 2, when they knew that accused No. 1 had first wife alive. The
role played by each of the accused in the second marriage of
accused No. 1 is described in the complaint. At the relevant time,
the complainant was not cohabiting with the accused No. 1,
though their marriage had taken place 16 years prior to the
second marriage of accused No. 1.
4.
Parties belong to Gai Gavali community of Hindu
religion. It is the case of complainant that as per the customs of
their community, the marriage becomes complete, when the
customary
rites
and ceremonies
like
Shevanti,
singing
of
Mangalashtaka, throwing of Akshata, putting of Mangalsutra by
husband on the person of wife, gifting of ornament Jodve by
husband to wife and gifting of Sari take place. It is the case of
complainant that the second marriage was solemnized on
22.2.1992 and this marriage was attended by brother of
complainant Ananda and uncles of complainant Kerba and
5.
Jaiwantrao.
If the complaint is read carefully, it can be said that
vague contentions with regard to the customary rites and
ceremonies, which were followed during first marriage, are made.
It is only contended that the marriage was solemnized as per the
customs of community. In respect of second marriage, allegations
are made that marriage was solemnized in the presence of
witnesses examined by the prosecution and the incident was
informed by the witnesses to the complainant. At para 10, there is
contention about the customary rites and ceremonies for
solemnization of marriage, but in the complaint, there is no
specific contention (in para No. 9) that all these customary rites
and ceremonies were followed during the second marriage.
6.
The evidence of Keraba (PW 1) shows that in the
second marriage, Bashings were tied on the heads of accused
Nos. 1 and 2, customary gifts were given to relatives of accused
No. 2 and the gifts are known as "Aher" and the function is known
as "Shevanti Poojan". He has given evidence that from the head of
accused No. 2, one Bashing was removed and it was given to
accused No. 18, sister of accused Nos. 2 and this sister tied
Bashing on the head of accused No. 1. He has given evidence
about using of Haldi, Patal (Sari). According to him, after the
aforesaid ceremonies, Antarpath was held between accused Nos.
1 and 2 and then there was singing of Mangalashtaka. He has
deposed that after throwing Akshatas on the persons of accused
Nos. 1 and 2, they put garlands on the neck of each other and
then ornament like Mangalsutra and Jodve were handed over by
accused No. 1 to accused No. 12. These ornaments were put on
the person of accused No. 2 by accused No. 1. As against these
ceremonies, Anandrao (PW 2) has given evidence that Aher
function was performed first and then Bashing function was
performed and then the bride and bridegroom were made to
stand on the stools. The curtain like Antarpath was held between
them. Akshatas were thrown. There was singing of Mangalashtaka
and this way marriage ceremonies were celebrated and there was
offering of Mangalsutra. This evidence is very vague. The trial
Court has rightly observed that there is no consistency in the
evidence of these two witnesses.
7.
The evidence of complainant shows that she has not
uttered word about the ceremonies which were followed during
her marriage with accused No. 1. The witnesses are interested
witnesses and the aforesaid evidence is not sufficient and
probable to prove any custom and ceremonies followed in their
community. Advocate for appellant placed reliance on the case
reported as AIR 2001 SC 3576 [S. Nagalingam Vs. Sivagami].
It is observed by the Apex Court that if as per the community
customs, Saptapadi is not essential, the marriage does not
became invalid, if other customs and rites followed in the
community are followed for solemnization of the marriage. There
cannot be any dispute over this proposition. Advocate for
respondent placed reliance on the case reported as 1991 AIR
(SC) 816 [Santi Deb Berma Vs. Kanchan Pravadevi]. In this
case, the Apex Court has laid down that to prove the offence
punishable under section 494 of I.P.C., it is necessary to prove
that as per the customs of community Saptapadi was not
necessary for solemnization of the marriage. In the case reported
as 2001 CRI.L.J. 1583 (Andhra Pradesh High Court) [D.
Vijayalakshmi Vs. D. Sanjeeva Reddy], the Apex Court has
laid down that first and second marriage must be proved in
accordance with the legal requirements, caste, customs of
particular caste. It is further held that absence of proof of
solemnization of any one of the marriage would defeat charge
under section 494 of I.P.C. Reliance was placed on two other cases
reported as 2001 AIR (SC) 938 [Surajmani Stella Kujur Vs.
Durga Charan Hansdah] and 2007 (2) Bom. C.R. (Cri.) 72
(Nagpur Bench) [Snehalata Kailash Ingale Vs. Kailash
8.
Rajaramji Ingale & Ors.].
The observations made by the Apex Court and the
High Court in the aforesaid cases show that the evidence given by
the complainant and her witnesses is short for proving the offence
of bigamy. Thus, interference is not possible in the judgment
delivered by the Trial Court and the appeal stands dismissed.
[ T. V. NALAWADE, J. ]
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