Daya Wanti and others vs The State of Haryana

Surrinder Singh, J.—A complaint was filed by Ram Chand in the Court of the Judicial Magistrate First Class, Rohtak, against his wife Daya Wanti (petitioner No. 1), Des Raj (petitioner No. 2) and five others u/s 494 read with S. 109, Indian Penal Code, with the allegation that the petitioner No. 1 was the duly wedded wife of Ram Chand complainant and she had borne four children to him. After the death of the father of petitioner No. 1, she inherited one-fifth share in the property of her father. Soon thereafter the complainant met with an accident which necessitated the amputation of his one leg above the knee. The allegation further is that petitioner No. 1 then secretly contracted a second marriage with petitioner No. 2, in connivance and with the aid of the other accused, on December 12, 1971 in Gurdwara Bhai Mehar Shah Singh at Kalanaur. The complainant, therefore, prayed for the imposition of necessary punishment under the law upon all the accused persons.

The complaint was resisted by the three petitioners and their co-accused who denied the factum of the second marriage. The trial Court after considering the evidence produced by both the parties, found petitioners Nos. 1 and 2 guilty, under Sections 494 and 494/109, Indian Penal Code respectively. A sentence of 1� years Rigorous Imprisonment was imposed upon petitioner No. 1 and nine months Rigorous imprisonment upon petitioner No. 2. The remaining co accused were convicted under sections 494/109, Indian Penal Code, and were sentenced merely to pay fines of Rs. 250/- each. The fines on realisation were to be paid to the complainant.

The petitioners challenged the verdict of the trial Court in appeal which was accepted partly to the extent that while upholding the conviction of the petitioners, the sentence imposed upon petitioner No. 1 was reduced to one year''s Rigorous Imprisonment. The sentence imposed upon Des Raj petitioner was, however, maintained, In regard to the other accused the conviction of Hukmi Bai mother of petitioner No. 1 was maintained as also the sentence of fine imposed upon her. The remaining accused were however, acquitted.

In this Revision Petition, the solitary point which has been submitted by the learned counsel for the petitioners is that before a conviction u/s 494, Indian Penal Code, could be recorded, it was the bounden duty of the prosecution to prove that the alleged second marriage contracted by the two petitioners was in conformity with law and was a legally valid marriage The learned counsel does not dispute the testimony of Mehar Singh Granthi of the Gurdwara who testified about the soleminzation of the second marriage by lawan ceremony in front of Guru Granth Sahib. However, his submission is that the parties to this marriage were admittedly Hindus and only a marriage solemnized under Hindu rites could be deemed to be a legal marriage The prosecution not having proved this essential ingredient, the second marriage did not stand established There is indeed substance in this contention of the learned counsel which goes to the very root of the matter. In fact, the Courts below did deal with this point but came to an erroneous conclusion that even though the marriage may be solemnized under Sikh rites, it should be deemed to be a valid marriage. While doing so, due attention was not paid to the verdict of the Supreme Court in Shrimati Priva Bala Ghosh v. Suresh Chandra Ghosh AIR 1971 S.C. 1153. This authority followed an earlier decision of the Supreme Court in Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra and Another, , wherein It was held that the words ''whoever...marries'' must mean whoever....marries validly or whoever......marries and whose marriage is a valid one. It Was further observed that if the alleged second marriage is not a valid one according to the law applicable to the parties, it is no marriage in the eye of law. In Ravinder Kumar v. Shrimati Kamal Kanta (1976) 78 P.L.R. 580, A.D. Koshal, J. (as he then was) was seized of the very point and it was held that if the parties who belonged to Hindu faiths entered into a marriage by means of Anand Karaj the ceremony prescribed for a Sikh marriage, the parties cannot be regarded as husband and wife. In face of these authorities, the complainant had failed to establish that the alleged second marriage of the two petitioners was really a valid marriage, Consequently the petitioners could not be convicted of the offence u/s 494 or Section 494/109, Indian Penal Code.

In the result, the Revision Petition succeeds and the conviction and sentence of the petitioner are set aside. They are acquitted of the charges framed against them.