Boniga Bodemma vs Bonigala Veeraiah and Others

Sharfuddin Ahmed, J.—This appeal raises an interesting question of law whether the second marriage of a Hindu with a Christian would bring him within the purview of Section 494 I. P. C. The facts out of which this appeal arose are as under.

A complaint was preferred by one Bonigala Bodamma, claiming to be the wife of A-1, against the respondent-accused u/s 494 read with 109 I. P. C. with the allegation that on 6-6-1958 at about 9-30 P. M. A-1 had entered into a second marriage with A-2, the daughter of A-3 in the house of A-6 with the assistance of the other accused in the case in Manava village. This happened while the marriage of the complainant with A-1 was subsisting and, therefore, the respondents were liable to punishment u/s 494 I. P. C. The respondents pleaded not guilty. A-1 stated that he had not married the 2nd accused, and that the case has been foisted on him on account of the factions in the village. The learned Additional Munsif Magistrate Bapatla, before whom the complaint was lodged, on examination of five witnesses on behalf of the complainant and four on the side of defence came to the conclusion that the form of marriage that was gone through is not recognised by Hindu Law and therefore, there was no second marriage. In that view, he dismissed the complaint and acquitted the accused of the charge u/s 494 I. P. C. Hence the appeal.

It may be slated at the outset that the learned Magistrate has not given a finding on the merits of the case. He has based his conclusion on the question of law involved in the case and dismissed the complaint, as in his view, there could not be a valid marriage between a Hindu and Christian. The question which he has considered is whether the alleged second marriage between A-1 and A-2 constituted a bigamous marriage so as to attract the provisions of Section 494 I. P. C. and referring to the evidence of the witnesses so far as relevant to the purpose he has come to the conclusion that is A-2 was stated to be a Christian there could not be a valid marriage between her and A-1 who professed Hindu religion. There is no discussion in the judgment as to the form of marriage apart from a reference to the religion of the contracting parties. Even in regard to the religion of A-2 he has found her to be a Christian as some of the witnesses examined by the complainant have stated that her parents were Christians. Actually there is no evidence to show what was the religion she was following at the time of the alleged marriage. In the absence of it, the form of marriage i. e., the ceremonies at the celebration would have had material bearings, but unfortunately as there is no finding on that point we have to proceed on the footing that A-2 was following the religion of her parents at the time of the alleged marriage. The question is whether a marriage so celebrated would bring the accused within the ambit of S. 494 I. P. C. It lays down that:

Whoever, having a husband or wife living, marries in any case in 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 either description for a term which may extend to seven years, and shall also be liable to fine.

The gist of the offence is marrying during the lifetime of husband or wife. The contention is that the second marriage should be a valid marriage and if the alleged marriage was not solemnized in accordance with the prescribed form or if the contracting parties were suffering from some other disability the marriage could not attract the provisions of Section 494, I. P. C. A reference is made to the provisions of Section 17 of the Hindu Marriage Act, 1955, which leys down that:

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 Sees. 494 and 495 of the Indian Penal Code shall apply accordingly.

It is urged therefrom that as the alleged marriage in the instant case is not between two Hindus it is not void and therefore, sections 494 and 495 I. P. C. are not applicable to the case. Reliance is placed for this purpose on the decision in Channamma v. Dhalappa, 1958 Mad LJ (Cri) 424 : (AIR 1958 Mys 147). The case, however, does not deal with this aspect of the case. The main question before the Court for consideration was whether an adjudication by the District Court under the provisions of the Hindu Marriage Act that the second marriage was void should precede a prosecution u/s 494 I. P. C. It was held therein that no such adjudication was necessary. Similarly, the other rulings cited by the learned advocate in M. S. David v. Sudha, AIR 1950 Mys 26 and Emperor v. Antony, ILR 33 Mad 371 deal with cases when the provisions of Section 494 I. P. C. were not applicable to Hindus i. e., the rule of monogamy and prohibition of polygamy was not in force. In the instant case, there is no question of conversion. It is not the case of anybody that A-1 had renounced his religion and was converted to Christianity. The rulings cited, therefore, do not seem to have any application.

The short question under consideration, is whether the word ''married'' in Sec. 494 I. P. C. contemplates the solemnisation of marriage in accordance with the prescribed form and mode of marriage or the taking of second wife or husband in the lifetime of the first wife or husband. On a plain reading of the section and consideration of the intendment behind the legislation it appears to be that what is prohibited is the taking of the second spouse in the lifetime of the first spouse. If the argument advanced by the learned counsel for the husband is accepted, it would amount to this that a Hindu husband or wife would be able to take a second wife or husband professing a different religion without exposing him or her to the liability imposed by the section. That could not obviously be the intention of the legislation. I am inclined to accept the interpretation of Section 494 I. P. C. as elucidated in Mst. Payari Vs. Faqir Chand Alakha and Others, wherein it has been laid down that :

The expression ''marries'' in any case in which sued marriage is void by reason of its taking place during the life of such ''husband or wife'' merely means that the person who marries a second time during the life of his or her first spouse would be punished u/s 494 only if such second marriage is not recognised by the personal law by which he or she is governed. The section does not require that the second marriage with the person concerned must otherwise be valid according to law.

In that view, the acquittal of the respondents on the question of law does not seem to be correct. The appeal is accordingly allowed setting aside the order of acquittal directing the magistrate to proceed with the case on merits.