Amaliammal vs Rayarswami and Others

This appeal by a private party is against the judgment of the learned Sub-Divisional Judicial Magistrate, Dindigul, acquitting the first accused

who has been charged with an offence u/s 494, I.P.C. and accused 2 and 3 who have been charged for offences u/s 494 read with Section 109,

I.P.C.

The appellant is the legally wedded wife of the first respondent, Rayarswami and a daughter, Clara was born of the wedlock. The parties belong

to Christian Catholic community. The allegation against the first accused was that during the subsistence of his marriage with the appellant he

contracted a second marriage with the second accused. Sundarammal, and therefore, has committed an offence punishable u/s 484, I.P.C. The

marriage is said to have been performed in the house of the third accused at Thavasimadai at the instigation of the third accused according to the

appellant, the first accused was in illicit intimacy with the second accused and was living with her separately that the father of the first accused

settled the properties in her favour and favour of her daughter Clara that at the time of the marriage of their daughter. Clara, the first accused,

insisted on her executing a deed of release and she accordingly executed a deed of release and later she filed a civil suit in respect of that deed in

Sub-Court, Dindigul, and that in that case the first accused filed a written statement admitting the second marriage with the second accused and

then she made enquiries about the second marriage and preferred the complaint before the Magistrate she would also say that the first accused

was converted to Hindu religion before his marriage with the second accused.

The defence was one of denial. The trial court came to the conclusion that the prosecution has not proved the second marriage and that the

court cannot act on the admission of the first accused made in the written statement filed in the civil suit on the file of the Sub-Court, Dindigul and in

the end acquitted the accused. The appellant, who is aggrieved, has filed this appeal.

The marriage between the first accused and the appellant is not disputed though the first accused disputes the paternity of Clara in his answer to

questions u/s 313, Cr.P.C. The appellant has examined herself as P.W. 1. She has not attended the second marriage and her evidence as regards

the treatment meted out to her by the first accused is not relevant for the purpose of this case. The first accused has been charged for an offence

u/s 494, I.P.C. The essential ingredients of that Section are : (1) that the accused should have contracted a marriage with the complainant : (2) that

the marriage should be subsisting at the time when the accused contracted a second marriage : and (3) that the marriage must be valid and must be

strictly according to the law governing the parties.

The first condition is satisfied in this case. As regards the second condition, the contention of the first accused is that he has not contracted a

second marriage it cannot be seriously disputed that the marriage between the first accused and the appellant is subsisting. To prove the second

marriage, the prosecution has examined P.Ws. 2 and 3. Those witnesses spoke about the marriage of the second accused with the first accused in

the house of the third accused on 18-6-1976 at about 7.00 a.m. According to them, a Brahmin priest kindled the sacred fire and performed the

marriage and that the first accused tied a thali around the neck of the second accused and then they exchanged garlands. We must recall to mind

that the parties are Catholic Christians. The question is whether there was a valid second marriage. It is not clear as to how the first accused, a

Catholic, married the second accused, who is said to be the sister of the wife of the brother of the first accused and performed the marriage in

Hindu form. P.W. 1 would state in her evidence that the first accused got himself converted as a Hindu and then performed the marriage with the

second accused her evidence is that the first accused admitted that he got himself converted as a Hindu. She admitted that she did not make any

enquiry about it. About this conversion, there is hardly any evidence. The complaint does not make any reference to the fact of conversion of the

first accused to the Hindu fold. The marriage itself was performed, according to the prosecution, in the house of the third accused, a Christian,

P.W. 2 admits in his evidence that they felt that it was wrong to celebrate a marriage in accordance with Hindu rites in the house of a Christian.

P.W. 2 admits that neither the first accused, nor the second accused invited him for the marriage. P.W. 3 would state that he did not wish to stay in

the house of the third accused as a marriage was performed in accordance with Hindu rites in a Christian house and as the first accused in marrying

for a second time. Both P.W. 2 and P.W. 3 have not reported the matter to the Parish Priest who said to reside in the house next to that of the

third accused where the marriage has taken place. As the allegation in regard to conversion was not mentioned either in the complaint or at any

time earlier than the time of deposing in Court by P. W. 1 no reliance can be placed on the evidence of P.W. 1 that the first accused was

converted as a Hindu and the marriage was celebrated. As conversion is not proved, the marriage between two Christian in accordance with the

Hindu rites will not be a valid marriage. One of the vital ingredients of the offence has not been made out.

But the counsel for the appellant placed reliance on an admission of the first accused that he has married the second accused. That admission is

contained in a written statement in O.S. No. 118 of 1976 on the file of the Sub-ordinate Judge, Dindigul. That written statement was filed in

answer to the plaint filed by the appellant and her daughter against the first accused praying for cancellation of the release deed executed by the

appellant and her daughter. Clara Pandian, in favour of the first accused, rayarswami. In the written statement, the first accused says in paragraph

12 that Sundaram Amal, the second accused, is none other than the sister of the wife of the elder brother of the first accused, that in view of the

conduct of the appellant, he did not have any connection whatsoever with her and that at the request and instance of the members of the family of

the first accused, the first accused married Sundaram Ammal, the second accused, as his second wife. In the view of the learned counsel for the

appellant, this vital admission is enough to convict the accused of the offence of bigamy u/s 494, I.P.C.

Per contra, learned counsel for the respondents pointed out that a mere admission by an accused that he contracted a second marriage is not

enough. Kanwal Ram and Others Vs. The Himachal Pradesh Admn., is a case where one Kubja is said to have married one Kanwal Ram in

September 1955, Kubja was married to Sadh Ram some time in 1941. By the time the marriage between Kanwal Ram and Kubja took place, the

Hindu Marriage Act, 1955 had come into force. That Act prohibited the marriage of a Hindu during the lifetime of his or her spouse. The evidence

of the witness produced to prove the second marriage, showed that the essential ceremonies had not been performed. But, however, the Judicial

Commissioner relied on the statement filed by Kubja in answer to an application for restitution of conjugal rights filed by Sadhu Ram, her husband,

against Kubja ion which it was stated that Kubja married Kanwal Ram after the marriage with Sadh Ram had been dissolved. The Supreme Court

took the view that the statement admitting the second marriage by the accused will not be evidence of it for the purpose of proving the marriage in

a bigamy case. In a bigamy case, the second marriage, as a fact, has to be proved. The ceremonies constituting the marriage must also be proved.

Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh, is also a case between two Hindus. That was a case where one Priya Bala filed a complaint

against her husband alleging that he has committed an offence punishable u/s 494, I.P.C. and that her husband had married one Sandhya Rani as

his second wife during the subsistence of her marriage with her husband. The trial court, though the evidence was scanty, relied on an admission

made by the husband in an objection filed to the claim made by the wife for maintenance u/s 488 of the Code of Criminal Procedure and found that

the husband has married a second wife while the marriage with the first wife was subsisting. The trial court convicted the husband. In appeal, the

Sessions, Judge held that the evidence did not establish that the essential ceremonies constituting a valid marriage have been performed either in the

case of the marriage between the complainant and the accused or in respect of the second marriage of the accused with Sandhya Rani. The

Sessions Judge acquitted the accused. The High Court, Calcutta, on appeal held that the evidence establishes that a valid marriage according to

Hindu Law, by which the parties are governed, has taken place between the complainant and the accused but regarding the second marriage, the

High Court agreed with the finding of the learned sessions Judge that the essential ceremonies to constitute a valid marriage have not been proved

to have taken place. In the end, it confirmed the order of acquittal. One of the contentions before the Supreme Court was that in view of the

specific admission made by the accused about the second marriage, it must be held that the accused is guilty of the offence u/s 494, I.P.C. Their

Lordships made a reference to Kanwal Ram and Others Vs. The Himachal Pradesh Admn., and have held that an admission is not evidence of the

fact that the second marriage has taken place after the ceremonies constituting a valid marriage have been gone through. It is therefore clear that an

admission of a marriage by the accused is not evidence of it for the purpose of proving marriage in a bigamy case.

Learned counsel for the appellant invited my attention to 2356 of Canon Law by Lincoln Bonscaren, S.J. and Adam C. Ellis, S.J., (second

Edition).

The learned authors say :-

BIGAMY. Bigamism, that is, those who in spite of the conjugal bond, attempt another marriage, are ipso facto infamous : and if in spite of

warning by the ordinary they continue in the illicit relation so begun, they are to be punished by ex-communication or personal interdict according

to the gravity of the case"".

Canon law, as is seen from that book itself is ""directed to the salvation of souls and the purpose of all its regulations and laws is that men may live

and die in the holiness given to them by the grace of God"". It is not clear as to how this Canon Law could help the appellant in any way in proving

the bigamy. In this case there is no evidence to show that a valid second marriage has been performed. The parties are Christians. But according to

P.Ws. 2 and 3, the marriage was performed according to Hindu rites. The mere admission by the first accused in the written statement that he has

married the second accused will not satisfy the ingredients which are necessarily to be established by the prosecution in a case u/s 494 of the

Indian Penal Code. The judgment acquitting all the accused is confirmed and the appeal is dismissed.

Appeal dismissed.