Kailasam and others vs Alagammal

Padmini Jesudarai, J.—The above criminal revision is directed against the judgment of the learned Sessions Judge, Padukottai, in C.A. 85 of

1982, confirming the conviction of the petitioners under S. 494, I.P.C., and S. 404 read with S. 109, I.P.C., and modifying the sentence on the

second petitioner and confirming the sentence on the rest of the petitioners viz., petitioners 1, 3 and 4, as imposed by the learned Chief Judicial

Magistrate. Pudukottai in C.C. 99 of 1980.

The facts giving rise to the present revision briefly are as follows: The respondent filed a private complaint before the Chief Judicial Magistrate,

Pudukottai against the petitioners 1 to 4 and two others on the allegation that he had been married to the first petitioner about 20 years ago and the

above marriage was still subsisting and on 23rd June, 1980 the first petitioner married the second petitioner and the said marriage was abetted by

the other accused with the knowledge of the subsistence of the first marriage. The complaint of the respondent was tried as C.C. 199 of 1980 by

the Chief Judicial Magistrate, Pudukottai. On behalf of the respondent, P.Ws. 1 to 3, were examined and Exs. P1 to P9 were marked. None was

examined on the side of the petitioners and no exhibits were marked on their side.

When questioned under S. 313, Crl. P.C., the first petitioner admitted that he married the respondent and that the said marriage was still

subsisting, but denied that he contracted any second marriage with the second petitioner. Petitioners 2 to 4 and their co-accused contended that

they were not aware of any marriage between the first petitioner and the respondent and that there was no marriage between the first petitioner and

the second petitioner as alleged by the prosecution.

Learned Chief Judicial Magistrate, on a consideration of the entire materials, found that the first petitioner had committed an offence under S.

494, I.P.C., and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 50 in default to undergo

rigorous imprisonment for a period of three months. Petitioners 2 to 4 and one Gurumayee alias Sigappi, the mother of the first petitioner, were

convicted for an offence under S. 494 read with S. 109, I.P.C. and were similarly sentenced. On appeal, learned Sessions Judge in Pudukottai,

confirmed the conviction and sentence in respect of petitioners 1, 3 and 4. In respect of the second petitioner while confirming the conviction, the

sentence imposed by the trial court was modified into one of fine of Rs. 2,000 in default to undergo rigorous imprisonment for a period of three

months. The appeal in respect of the Gurumayee alias Sigappi was allowed and her conviction and sentence were set aside. Hence the present

revision.

Mr. Santhanakrishnan, Learned Counsel for the petitioners, submitted that there had not been proper appreciation of evidence by the courts

below, that at any rate, petitioners 3 and 4, cannot be said to have committed an offence since the evidence merely indicated their presence and

that, in any event, the sentence imposed on the petitioners was excessive.

Per contra, Mrs. Vijayalakshmi Natarajan, Learned Counsel for the respondent, submitted that the two courts had concurrently found, on

proper appreciation of the evidence, that the fact as well as the legality of the second marriage had been proved by the prosecution and this Court

sitting in revision, could not interfere with the above finding of fact and since the second marriage itself has been contracted in defiance of an order

of civil court, restraining the above marriage, a lenient view on the sentence should not be taken.

The question that arises for consideration is whether the judgment of the learned Sessions Judge suffers from any illegality, impropriety or any

manifest error calling for interference by this Court under its revisional jurisdiction?

That the marriage between P.W. 1 and the first petitioner had taken place about twenty years ago and that the same is subsisting are admitted

by the first petitioner. The same is spoken to by P.Ws.1 and 3 and both the courts below have acted on the evidence of P.Ws. 1 to 3 as also the

admission of the first petitioner when questioned under S. 313, Crl P.C. The findings of the courts below that the marriage between the first

petitioner and the respondent has been proved and is also subsisting is arrived at on a proper appreciation of the evidence available.

The next issue would be whether the prosecution has proved that the marriage between the petitioners 1 and 2 did take place on 23.6.1980 at

Kathakurichi and whether the same has been proved to be a valid marriage. P.Ws.1 to 3 are the witnesses to the second marriage. The evidence

of P.Ws. 1 is that on 21.6.1980 she came to know under Ex. P4 the marriage invitation, that the first petitioner was proposing to marry the second

petitioner and that thereupon she filed O.S. 261 of 1980 in the Sub Court. Pudukottai, for an injunction restraining the first petitioner from

contracting a marriage with the second petitioner. She also filed I.A. 380 of 1980 seeking an interim relief to the above effect. Ex. P3 is the copy

of the plaint. On 21.6.1980 ad-interim injunction restraining the first petitioner, who was the first defendant in the suit, from marrying the second

petitioner, who was the second defendant in the suit, on 23.6.1980 or before or after that date till the disposal of the suit was granted. Ex. P1 is the

certified copy of the above order. On 22.6.1980 the above order, together with the copy of the plaint, has been served on the second petitioner in

her village at Kathakurichi under her acknowledgement. Ex. P2 is the certified copy of the served copy of the petition. On coming to know that

despite the civil court''s injunction, the petitioners were proposing to go ahead with the marriage, the respondent took P.Ws.2 and 3 and some

others to Kathakurichi and went to petitioners 1 to 4. There they saw the marriage between petitioners 1 and 2 being solemnised with the

assistance of petitioners 3 and 4. P.Ws.1 to 3 and others questioned the petitioners 3 and 4. According to P.W. 2, the third petitioner denied

knowledge of the existence of the first marriage According to P.W. 3, petitioners 3 and 4 defined them and told them that they would go ahead

with the present marriage even though the first petitioner had a wife living and had also children through her. Petitioners 1 and 2 were found in the

bridal pedestal wearing garlands. Thali was tied. It is the evidence of P.Ws.1 and 3 that after the marriage petitioners 1 and 2 were living as

husband and wife in the village Aarangal and at the time of their giving evidence in court a male child had been born to them. Besides the oral

evidence of P.Ws.2 and 3, the prosecution has also produced Ex. P5 the registration of marriage between petitioners 1 and 2, dated 11.6.1980.

Though this registration is made prior to the date of the second marriage, the prosecution has produced the same as corroborative piece of

evidence to show that petitioners 1 and 2 were anxious to have their marriage registered. The prosecution also relied upon Ex. P7 which are the

proceedings of the Sub Court, Pudukottai, in O.S. 261 of 1980 wherein the first petitioner is said to have appeared before court and admitted that

he received the copy of the injunction order and despite the same he had married the second petitioner. It is on the basis of these materials, both

the courts below had found that the first petitioner did marry the second petitioner on 23.6.1980 at Kathakurichi as put forth by the prosecution.

Ex. P4 is the marriage invitation. That the respondent obtained ad-interim injunction and notice of which had been served on the second petitioner

even prior to 23.6.1980 cannot be denied. In this context, if P.W. 1 had come to know that despite the order of the civil court the petitioners

intended to go ahead with the marriage as scheduled under Ex. P4, the natural conduct of the respondent would be to proceed to Kathakurichi

and prevent the marriage. That she has done by taking P.Ws.2 and 3 and some others. There, P.Ws.1 to 3 had witnessed the marriage. Nothing

has been elicited in the cross-examination of these witnesses, which would indicate that these witnesses are not speaking the truth Added to the

evidence of these witnesses is the admission of the first petitioner in Ex. P7. No doubt, Ex. P7 cannot be substitute for the proof of the fact of

marriage, but still it could be taken as a piece of corroborative evidence to that of P.Ws.1 to 3. P.W. 1 has followed up by immediately filing a

petition in the civil court under O. 39, R. 2A and S. 151, C.P.C. for action against the first petitioner for contempt. This conduct is consistent with

the fact of a second marriage and her witnessing the second marriage. Both the courts below, therefore, have rightly found on a proper

appreciation of the oral and documentary evidence, that the first petitioner married the second petitioner on 23.6.1980.

It remains to be considered whether the prosecution has proved that the marriage so contracted between petitioners 1 and 2 is a valid

marriage. The Supreme Court in Smt. Priya Bala v. Sureshchwdra 1972 L.W.(Crl.) 275 : AIR 1971 S.C. 1153, had laid down that in a

prosecution for bigamy under S. 494, I.P.C. it was necessary to establish that the second marriage had been duly performed in accordance with

the essential religious rites applicable to the form of marriage gone through, by the parties. No doubt, these observations were made with reference

to the Hindu Marriage Act (Central Act 25 of 1955). It would apply with equal force to S. 7, as amended by the Madras Act 21 of 1967. Not

only has the fact of marriage to be established the further ingredient that such a marriage is a valid marriage under S. 7 or S. 7A of the Act has also

to be established. In the instant case, in the complaint filed by the respondent it is stated that the marriage was performed as per the caste custom

by exchange of garlands and by tying of the thali. No doubt, there is no direct evidence that the petitioners 1 and 2 exchanged garlands P.W. 1

would say that when P.Ws. 1 to 3 went petitioners 1 and 2 were seated on the bridal pedestal with garlands. P.Ws. 2 and 3 do not make any

reference to any exchange of garlands. However, we have the evidence of P.W. 2 that thali was tied and they saw it. S. 7A of the Madras Act 21

of 1967 indicates three kinds of valid marriage and S. 7A(1)(e) include marriage by mere tying of the thali. It is, therefore, clear that tying of the

thali without any other ceremony could be a valid marriage. Under S. 7A(2)(a) it is not necessary that tying of thali should also be accompanied by

exchange of garlands. The various sub-clauses of S. 7A(2) are disjunctive. It is also not necessary that there should be any evidence that the

marriage was performed as Suyamariyathai or Seerthiruth marriage. It has been so laid down by Maheswaran, J., in Koodappm v. Kothai 1979

L.W. (Crl.) 154 : 1980 M.L.J. (Crl.) 420. I respectfully concur with the view of the learned Judge. Substantial justice has to be done and requiring

illiterate persons to state during evidence technicalities touching upon finer aspects of kinds of marriages would negative justice. In the instant case,

there is evidence that thali was tied, as required under S. 6A(1)(c) of the Madras Act 21 of 1967. The prosecution, therefore, has established that

the marriage between the petitioners 1 and 2 was also a valid marriage is required under S. 494, I.P.C.

Regarding the first petitioner, the above facts establish that he has committed an offence punishable under S. 494, I.P.C. The second petitioner

has already been served with a copy of the injunction order. Ex. P2 is the proof of the same. It is obvious therefore, that she had knowledge that,

the marriage between the respondent and the first petitioner was subsisting. With the above knowledge, the has married tile first petitioner. She has

therefore committed as offence punishable under S. 494, read with S. 109, I.P.C, and has been rightly convicted.

Petitioners 3 and 4 are respectively the father and the mother of the second petitioners Learned Counsel for the petitioners submitted that they

had merely been present aid mere presence would not amount to abetment so as to attract S. 109, I.P.C. Learned counsel, relied upon a decision

reported in Karuppai Servai v. Nagavalliammal 1981 L.W. (Crl.) 336 : 1982 M.L.J. (Crl.) 19, wherein under similar circumstances, the mother of

the man who contracted the second marriage, and his brother, who had merely been present and had not in any way aided the marriage were held

to be mere passive witnesses, to the second marriage not coming within the purview of S. 109, I.P.C. The above decision will not be applicable to

the facts of this case. It M significant that petitioners: 3 and 4 are the parents of the second petitioner. Ex. P2 the copy of the injunction order had

been served on the second petitioner in Kathakurichi. The second petitioner, being an unmarried girl should have been residing with her parents,

the petitioners 3 and 4. Under these circumstances, petitioners 3 and 4 should have had knowledge of the filing of the suit and of the grant of

injunction and consequently of the existence of prior subsisting marriage of the first petitioner. The wedding invitation Ex. P4 purports to stand in

their names. Though from Ex. P4 alone mere knowledge cannot be attributed to petitioners 3 and 4, these circumstances have to be taken in the

light of the evidence of P.Ws. 2 and 3, who say that before the second marriage, they informed petitioners 3 and 4 about the first petitioner having

a wife living. It is significant that the second marriage has taken place at Kathakuriehi. Such a marriage cannot take place without the active

assistance of petitioners 3 and 4, who are none other than the parents of the bride. In this context Ex. P8 which is a letter written by the third

petitioner to the first petitioner regarding the arrangements to be made for the marriage will have its own significance. The suggestion of the

petitioners to P.Ws. 1 to 3 during cross examination that the second petitioner was living with the first petitioner and cooking for the first petitioner

and his mother be-cause the respondent was frequently living the marital home cannot be ignored. This would indicate that the petitioners 3 and 4

who knew that the first petitioner had a wife living had permitted their daughter, the second petitioner to do house hold work in the residence of the

first petitioner. All these circumstances cumulatively will lead to only one inference viz., that it was the petitioners 3 and 4, who had aided the

petitioners 1 and 2 to marry. Both petitioners 3 and 4 therefore, squarely come within the ambit of S. 109, I.P.C. They have committed an offence

under S. 494 read with S. 109, I.P.C., and have been rightly convicted. I am unable to see any illegality or perversity in the findings arrived at by

the learned Sessions Judge calling for interference by this Court under its revisional jurisdiction.

Regarding sentence, the first petitioner, after a married life of 20 years, and having grown up children, had contracted a second marriage after

the issuance of the injunction order by the civil court. However, it is represented that he had already been punished by the civil court under the

contempt proceedings and had been detained in the civil prison. Interest of justice, therefore, would be met by reducing the sentence of the first

petitioner from two years rigorous imprisonment as awarded by the courts below, to a period of six months rigorous imprisonment in addition to

the fine imposed.

The sentence of the second petitioner does not suffer from any perversity and will be retained. Regarding petitioners 3 and 4, it is represented

that they are aged about 60 years. Taking a lenient view, the sentence of imprisonment of the petitioners 3 and 4 will be reduced to the period of

imprisonment already undergone by them in addition to the, tine imposed. Subject to the above modification, the revision fails and is dismissed.