Geetha vs Vijayan

A. Hariprasad, J.—The complainant, who approached the learned Magistrate alleging that her husband married for second time during the subsistence of first marriage, is the appellant in this case. She approached the Court below with a complaint under sections 494 and 108 r/w section 34 of Indian Penal Code.

The 1st accused in the complaint is the husband of the complainant and the 4th accused is alleged to be his second wife. Other accused persons are the relatives of the 1st and 4th accused.

There is no dispute regarding the fact that the 1st accused married the complainant according to customary rites on 1.1.1992. It is the allegation in the complaint that on 29.03.1998, the 1st accused married the 4th accused during the subsistence of his marriage with the complainant.

The learned Magistrate, after appreciating oral evidence of P.Ws. 1 to 3 and D.W. 1, acquitted the accused, finding that the allegations went unproved. Aggrieved by that finding, this appeal has been preferred.

Heard the learned counsel for the appellant. There is no representation for the accused persons/respondents. I have carefully gone through the evidence available in the records.

P.W. 1 is the complainant. She deposed that on 1.1.1992, the 1st accused married her in accordance with the customs and ceremonies prevailing in their community. Admittedly, the parties are Hindus. It is the statement of P.W. 1 that their marriage subsisted even on the date of second marriage. The alleged second marriage of the 1st accused with the 4th accused took place on 29.03.1998. According to P.W. 1, the second marriage took place from the house of the 4th accused. She is also a person belonging to Hindu religion. It is the version of P.W. 1 in chief examination that even before the marriage, her father (P.W. 3) went to the house of the 4th accused and informed them about the existence of marital relationship between the complainant and the 1st accused. But, in complete negation of that fact the accused persons contracted the second marriage, is the contention of P.W. 1.

P.W. 1 was subjected to cross examination by the counsel for the accused. In cross examination, she stated that P.W. 2, her father�s friend, had attended the second marriage. She further stated that P.W. 2 informed her father that the 1st accused married the 4th accused and the information was given after the objectionable marriage. It is her version that her father, P.W. 3, informed her that even before marriage P.W. 2 - Narayanan had told him about this issue. But, when P.W. 2 - Narayanan was examined, he categorically stated that he informed P.W. 3 about the marriage only after it took place. P.W. 2 stated that he participated in the marriage as invited by the household people of the 4th accused. P.W. 3, the father of P.W. 1, also deposed that P.W. 2 - Narayanan informed him that marriage between the 1st accused and 4th accused took place at the bride�s residence. He has a specific case that information about a proposed marriage was given to him beforehand by someone, but that was not P.W. 2 - Narayanan. Apart from this inconsistency and incongruity, another vital factor noticeable in this case is that there is no record to show that the 1st accused married the 4th accused as alleged in the complaint.

D.W. 1 is the defence witness. He is a neighbour of the 4th accused. According to his testimony, the 4th accused remained unmarried even at the time of trial. It is the positive version of this witness that if a marriage had happened, certainly he would have known, as his house is very close to that of the 4th accused.

Even if we discard the testimony of D.W. 1 as that of an interested neighbour, I am of the view that the Court below is justified in acquitting the accused for want of reliable evidence regarding the second marriage. It is settled law that second marriage should be proved to be a valid marriage according to the personal law of the parties. The validity of the second marriage is to be proved by the prosecution by satisfactory evidence (See S. Nagalingam Vs. Sivagami, . In the absence of any material to hold that there was a second marriage as alleged in the complainant and that it was a valid marriage, I find no fault in the judgment of the court below in acquitting the accused. The appeal is devoid of any merit.

In the result, this appeal is dismissed.