Kalanjiam Ammal vs Shanbagam and Others

The appellant who had preferred a complaint against the respondents for offences under sections 494 and 494 read with S. 109, I.P.C. on the

allegation that the first respondent, had married her on 10-6-1978 and during the subsistence of the above marriage, had contracted a second

marriage on 25-4-1982, with the second respondents, abetted by respondents 2 to 8, which complaint was tried by the Sub-Divisional Judicial

Magistrate, Shencottah as C.C. 452 of 1982, and in which the respondents were acquitted has preferred the present appeal, challenging the

acquittal.

Facts briefly are - The first respondent was a Hindu by birth. Just prior to his marriage with the appellant, who was a Christian, the first

respondent was baptised into the Church of South India, and on 10-6-1978 he married the appellant in the C.S.T. Church at Courtallam,

according to the Christian rites. Soon after, disputes arose between them over certain jewels, and properties, which had been promised to be given

to the first respondent, at the time of the marriage and which had not been given as promised. In the second week of October 1978, the first

respondent cruelly assaulted the appellant and drove her away, directing her not to return without the jewels and the property. Mediations failed

and the appellant continued to live in her father''s house. The first respondent reverted back to Hinduism and lived as a Hindu. On 24-5-1982, he

married the second respondent, who is also a Hindu, according to Hindu form of marriage tying a thali. The third respondent is the father of the first

respondent. The fourth respondent is the sister of the first respondent. The respondents 5 to 8 are the brothers of the second respondent.

During trial, the appellant examined herself as P.W. 1 and gave evidence about her marriage with the first respondent and also stated, that after

misunderstandings arose between them, first respondent became a Hindu and was accepted by the community as a Hindu. She came to know that

the first respondent was trying to contract a second marriage and hence on 20-5-1982, she sent a notice to the first respondent, through her

counsel. On 25-4-1982, at about 7 p.m. on being informed by others that the first respondent was trying to contract a marriage, she took her

mother and one Ponniah Nadar with her and went to the house of the sixth respondent. There respondents 1 and 2 were seated in the bridal dress

ready for the marriage. The intervention of the appellant was futile. The fourth respondent gave the thali to the first respondent who tide the thali

round the neck of the second respondent and put the first knot. The two remaining knots were put by the fourth respondent. Others participated in

the marriage.

P.W. 2 corroborated P.W. 1 regarding the second marriage. P.W. 3, the Paster of Tenkasi, who had baptised the first respondent and who had

solemnised the marriage of the first respondent with the appellant spoke to the above facts. He also proved Ex. P. 3, the register maintained for

baptism and Ex. P. 4 the entry relating to baptism of the first respondent and Ex. P. 5 the Marriage Register and Ex. P. 6, the entry relating to the

marriage between the appellant and first respondent. P.Ws. 5 and 6 stated that they were present when the first respondent married the appellant

and they signed in Ex. P. 5.

When questioned under S. 313, Cr.P.C. the first respondent stated that there was no marriage between him and the appellant that he was a

Hindu by birth and had always been a Hindu and had never been converted to Christianity, that one day for want of accommodation, he was lying

on the verandah of the house of the appellant, that her relations dragged him in saying he had some intimacy with the appellant and forced him to tie

the wedlock that he was taken to a Church and his signature was obtained in a book and that when he refused to tie the thali in the church P.W. 5

tied the thali round the neck of appellant. He also denied his alleged second marriage with the second respondent. The other respondents denied

having committed any offence. On their behalf, they examined the paternal uncle of the second respondent as D.W. 1 and he stated that the second

respondent was till unmarried.

On the above evidence, the trial Court gave the following findings :-

(i) the first respondent had been converted to Christianity and had married the appellant on 10-6-1978 in the Church, as per Christian rites; (ii) the

above marriage was subsisting; (iii) the evidence of D.W. 1 that the second respondent was still unmarried was false; (iv) The second marriage,

even if true, was not a valid marriage since there was no satisfactory evidence that the first respondent was reconverted to Hinduism and had been

accepted as a Hindu by his community. Learned Magistrate, therefore, acquitted the respondents. Aggrieved with the acquittal, the complainant

has preferred this appeal.

Thiru G. Krishnan, learned counsel for the appellant, contended that the trial Court, having found that the first marriage was true and was

subsisting and also not having disbelieved the fact of the second marriage, was wrong in holding that the evidence of reconversion to Hinduism was

not satisfactory or sufficient and that the trial Court ought to have accepted the evidence of P.W. 1, that the first respondent was reconverted to

Hinduism and had been accepted by society as a Hindu and that the evidence of P.W. 1 to that effect had been corroborated to some extent by

the evidence of P.W. 3 and the circumstances of the case. Learned counsel placed reliance upon certain decisions, which I shall refer to presently.

The question that arises for consideration is whether the judgment of the trial Court can be sustained.

Though the first respondent had tried to come forward with a clumsy explanation for his signature in Ex. P. 3, the Register of Marriages, the trial

Court had rightly rejected the explanation. The evidence of P.W. 3 clearly shows that on 7-6-1978, the first respondent had been baptised into the

Christian Church and Exs. P. 3 and P. 4 are the register and entry respectively. He has further stated that on 10-6-1978, the first respondent

married the appellant in the church of the South India at Tenkasi, according to Christian rites. Ex. P. 5 is the Register of Marriages and Ex. P. 6 is

the entry regarding the marriage. P.Ws. 5 and 6 had attended the marriage and had signed in Ex. P. 5, as witnesses to the marriage. Exs. P. 3 to P.

6 being documents that had come into existence in the regular course of business, much anterior to the prosecution, corroborate of the oral

evidence of P.Ws. 1, 3, 5, and 6. The trial Court, therefore has rightly held that the first respondent married the appellant on 10-6-1978 according

to Christian rites.

It is not seriously controverted that the above marriage is subsisting Ex. P. 2 is the agreement signed by the father of the appellant and the third

respondent, who is the father of the first respondent. The evidence of P.W. 4 who is a teacher in the school nearby is that on 17-10-1978 there

was a dispute between the two families and they tried to go to the police station and at that time an agreement was entered into and he wrote Ex.

P. 2 as per the agreement reached between the parties. Ex. P. 2 requires the father of the appellant, to give within two years, either the jewels

worth Rs. 1500/- or lands worth Rs. 1500/- to his daughter and meantime, before 1-11-1978 as security for this Rs. 1500/- to execute a

mortgage in favour of his daughter of either the land of the house which was in his name and that after the execution of the above mortgage deed on

2-11-1978, the third respondent was to go and fetch the appellant from her father''s house and see that the first respondent and the appellant set

up a home in Kottakulam. Ex. P. 2 is dated 17-10-1978. No mortgage was executed and the settlement fell through. The appellant continued to

live with her father.

The next question is whether the second marriage is true and if so, whether it is a valid marriage. P.Ws. 1 and 2 have given evidence about the

second marriage. The trial Court has not given any positive finding as to whether the second marriage is true or not. On the contrary the trial Court

has assumed the second marriage to be true, and held that even if true, it is not a valid marriage. Further, the trial Court has rejected the evidence

of D.W. 1 the junior paternal uncle of the second respondent, that the second respondent was unmarried. It is significant that even before the

alleged second marriage, the appellant had caused a notice Ex. P. 1 to be sent to the first respondent. Ex. P. 1 had been returned. The evidence of

P.Ws. 1 and 2 shows that the first respondent married the second respondent. Nothing has been elicited in cross-examination of either of these

witnesses to show, that their evidence should not be relied upon. The evidence of P.W. 2 cannot be rejected merely on the ground that he

attended the marriage without any formal invitation. The second respondent, is none other than the first respondent''s mother''s brother''s daughter.

I, therefore, accept the evidence of P.Ws. 1 and 2 and hold that the first respondent married the second respondent on 24-5-1982, according to

Hindu rites, by tying of a thali in the presence of witnesses.

The next question is whether the above marriage is a valid marriage, by reason of the first respondent, having once been converted to

Christianity. It will be useful to refer to some of the decisions on this aspect, relied upon by the learned counsel for the appellant. In Goona

Durgaprasada Rao alias Pedda Babu and Another Vs. Goona Sudarsanaswami and Others, . One Appasalami had initially been baptised in 1893

as a Roman Catholic married one Zitama in Roman Catholic church in 1898 and after the death of his first wife married one Appalanarasamma in

1913, who was a Hindu, in the Hindu form of marriage and thereafter worshipped as a Hindu, was accepted by his co-religionists as having

changed his religion, lived, died and was cremated in that religion. Under these circumstances, the Division Bench of this Court held, that no

particular ceremony was necessary, as proof of formal abandonment of Christianity and reconversion to Hinduism, and the correct test was the

prevailing sentiment and usages of the community and it was its approval or disapproval, which should be the governing factor. The ratio of that

decision has been followed in a subsequent decision of this Court in Mrs. Alphones v. Paulsankar, 1977 MLW (Cri) 192 : 1977 Cri LJ NOC

On the facts of that particular case, learned Judge held that there was no evidence of any unequivocal intention in clear and express terms to

abandon Christianity and reconvert to Hinduism. The Supreme Court in S. Anbalagan Vs. B. Devarajan and Others, and also in Kailash Sonkar

Vs. Smt. Maya Devi, , has held that no particular ceremony is prescribed for reconversion to Hinduism of a person, who had earlier embraced

another religion and that evidence regarding the acceptance by the community would be sufficient and ordinarily, he regains his caste on

reconversion, unless the community did not accept him. It follows from the above decisions, that no formal ceremony is necessary for reconversion

and the question as to whether there has in fact been a reconversion or not, is essentially a question of fact, depending upon the facts of each case.

The evidence of the appellant is that the first respondent became a Christian, only for the sake of his marriage with her and one year prior to

the second marriage, the first respondent, reconverted himself to Hinduism and was going to temple, applying sacred ash and paying tax to the

temple. No doubt, she has stated that she has not seen all these things personally. Added to this evidence, is the evidence of P.W. 3, the Pastor

who has stated that the first respondent did not pay the contribution to the Church, and did not come to the church and did not receive either Holy

Communion or confirmation. The trial Court has rejected this evidence, as not being conclusive of reconversion, since, according to the learned

Magistrate the possibility of the first respondent, going to any other Church or continuing to be a Christian, without attending any Church could not

be ruled out. The villages of the appellant and the first respondent are not very far away and even if the appellant did not have any personal

knowledge, since he was residing with her parents, the evidence of the appellant and P.W. 3 put together, indicates that the first respondent had

not associated himself with Christianity after he left the appellant. This conduct of the first respondent has to be understood in the background of

his religious history. The first respondent was a Hindu by birth. All his family members were Hindus. He had been brought up as a Hindu. His

conversion to Christianity, was not the outcome of any religious conviction or change in religious belief but was solely due to exigencies of

circumstances. There could be no Christian marriage in a Christian Church, unless both the spouses were baptised Christians. The first respondent

had been baptised into Christianity, only three days prior to his marriage with the appellant. The evidence of the appellant is that the conversion

was only for the sake of the marriage. The appellant had not followed up the baptism, with either Holy Communion or Confirmation. Soon after the

marriage, the first respondent had started ill treating the appellant forcing her to go to her father''s house and get jewels, property and cash. The

couple had been together, scarcely for three months and finally the first respondent beat the appellant, forcibly removed the gold chain she was

wearing and drew her to her father''s house, directing her not to return without the jewels. The final ultimatum fixed under Ex. P. 2 expired on 1-

11-1978. The Christian religion, which the appellant had adopted, for the sake of his marriage with the appellant, was naturally abandoned when

the spouses fell apart. His exodus to Christianity was as short lived, as his association with the appellant. The necessary inference, therefore, is that

he reverted back to his parent religion, Hinduism. The evidence of the appellant and P.W. 3 also lend support to this. In this context, the statement

of the first respondent that he had always been a Hindu and continues to be a Hindu, has some little significance. It is not the case of the first

respondent, that he is a Christian.

I have already found, that the prosecution case, regarding the marriage between the first respondent and the second respondent, according to

Hindu rites, has been proved. This marriage is not a clandestine love marriage. It is an arranged marriage. The marriage was celebrated in the

house of the sixth respondent, who is the brother of the second respondent. All the four brothers of the second respondent namely respondents 5

to 8, as also the sister of the first respondent had celebrated the marriage. The very fact that the marriage was arranged and celebrated by the two

families and was, attended by others of that locality shows, that the two families, their community and society had received the appellant back into

their fold accepting him as a Hindu. It is only on an occasion such as this, that the acceptance would find visible expression. I therefore hold that

the first respondent, after his marriage with the appellant fell through had reverted back to Hinduism, became a Hindu and was accepted as a

Hindu by his community and had married the second respondent as a Hindu. The second marriage, therefore, is a valid marriage, but for the

existence of the first marriage. The first respondent has committed an offence under S. 494, I.P.C.

The next question is, whether respondents 2 to 8, are liable under S. 494 read with S. 109, I.P.C. Regarding respondents 2 and 5 to 8, the

prosecution has also to prove that they had knowledge of the first marriage and of its subsistence. This cannot be inferred merely from the fact that

they resisted P.W. 1''s intervention just before tying of the thali. It is not the case of the appellant that respondents 2 and 5 to 8, either attended the

first marriage or knew them as husband and wife. It is also possible that even if they knew about the first marriage, they could have thought, that on

the basis of the Ex. P. 2 or by agreement, the marriage had been dissolved, due to the misunderstandings. No liability, therefore, can be fastened

on respondents 2 and 5 to 8. Their acquittal has to be confirmed. The third respondent had not done any act in the actual celebration of the

marriage, which could be considered as and act of abetment. His acquittal too has to be confirmed. On the contrary, it is the fourth respondent,

who has actually given the wedlock to the first respondent to tie it round the neck of the second respondent, and who after the first respondent had

tied, and put one knot, had put the remaining two knots, in token of the due performance of the marriage. Putting the third knot gives the stamp of

finality to the marriage and that has been performed by the fourth respondent. The act of the fourth respondent amounts to aiding the marriage. She

will, therefore, be liable for an offence under S. 494 read with S. 109, I.P.C.

In the result, I hold that the first respondent has committed an offence under S. 494, I.P.C. and the fourth respondent has committed an

offence under S. 494 read with S. 109, I.P.C. Their acquittal by the trial Court is set aside. I convict the first respondent for an offence under S.

494, I.P.C. and sentence him to imprisonment till the rising of the Court and to pay a fine of Rs. 750/-, in default, to undergo rigorous

imprisonment for three months and also convict the fourth respondent for an offence under S. 494 read with S. 109, I.P.C. and sentence her to

imprisonment till rising of the Court and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for one month. The fine amount of

Rs. 1250/- if collected, will be paid to the appellant under S. 357(1)(a), Cr.P.C. for defraying the expenses properly incurred in this prosecution.

The appeal is allowed to the above extent in respect of respondents 1 and 4 and the appeal is dismissed in respect of respondents 2, 3 and 5 to 8.

Time for payment of fine is 3 months from the date of receipt of this judgment by the trial Court.

Order accordingly.