Kalimuthu and Others vs Amma Muthu and Another

M.N. Moorthy, J.—The first accused for an offence u/s 494 and the second to sixth accused u/s 494 read with Section 109, I.P.C., were

convicted by the learned Sub Divisional Judicial Magistrate, Ramaoathaparam, in C.C.301 of 1977. All the accused bad been sentenced, to suffer

imprisonment till rising of the Court and to pay a fins of Rs. 200, each. in default to undergo simple imprisonment for two months.

Against the order of the trial court an appeal was preferred in C.A. No. 227 of 1978 before the learned Sessions Judge of Ramanathaparam at

Madurai, who dismissed the appeal, confirming the conviction and sentences. The present revision before me is preferred challenging the validity

and legality of the order of the lower appellate Court.

Briefly the case'' against time Petitioners can be stated as follows: There was intimacy for a longtime between P.W. 1 Ammamuthu and the first

accused Kalimuthu. This had come to the knowledge of the villagers of Keeraikottai. P.W. 1 and the first accused agreed to get themselves

married and accordingly on 3lst July 1977 they married and were living together is husband and wife for about a fortnight in the first accused''s

house. While so, the first accused''s father who lives in Malaysia, wrote a letter which induced the fourth to sixth accused to take the first accused

from his house, thus putting an end to the relationship between the spouses. On 19th August, 1977, at about 9:30 a.m. it is alleged, the first

accused married one Boopathi in the Ammankoil at Karaikudi while his marriage with P.W. 1 Ammamuthu was still subsisting. The other accused

helped in conducting the second marriage. P.W. 1 preferred a complaint u/s 494, I.P.C., against the first accused and u/s 494 read with Section

109 , I.P.C., against the other accused.

The accused when questioned on the materials appearing on the side of the prosecution, denied having committed any offence. The learned Sub

Divisional Judicial Magistrate, Ramanathapuram, rejecting the defence, convicted all the accused and sentenced them as stated supra. In appeal,

the learned Sessions Judge, Ramnad at Madurai, confirmed the said convictions and sentences.

Mr. Venugopal Naicker, learned Counsel appearing for the Petitioners, raised only one. point before me that the marriage between P.W. 1 and

A1 had been annulled by the learned Additional District Judge, Ramnad at Madurai, in C.M.A.12 of 1979 on a petition filed by A1 u/s 12(1)(c) of

the Hindu Marriage Act and hence it cannot be said that when A1 married Boopathi, his first marriage was subsisting and no criminal liability arises

under the circumstances. He relies on Exs.B3 and B4, the judgment and decree, in the petition filed u/s 12(1)(c) of the Hindu Marriage Act, In

support of his stand, he relied on two decisions- Mohana Srinivasan v. Girija, 1981 I M.L.J. 321, Baji Rao v. Telambai 1981 Cri. LJ. 473. In the

later decision, the learned Judges of the Bombay High Court held that a marriage in contravention of Section 5(1), Hindu Marriage Act is null and

void and it cannot create a legal status of husband and wife between the parties, though the necessary ceremonies may have been gone through.

Though Section 11 gives a right to the parties to file a petition for a decree declaring the marriage a nullity, the filing of such a petition is not a

condition precedent for putting an end to the marriage. What ultimately is declared on such a petition is nothing but the status of the party as on the

date of marriage and, therefore, the marriage does not continue to remain valid until a decree is passed. What is null and void cannot be deemed to

be in existence for any purpose whatsoever. If, therefore, a marriage is solemnised in contravention of Section 5(1), the woman cannot get status

of a wife, nor can the male get the status of husband qua her.

marriage though null and void for contravening any of the conditions prescribed by Clauses (1) (v) and (v) of Section 5 of the Hindu Marriage

Act, has yet to be regarded as a subsisting fact and in that sense it cannot be said to be wholly non est in law or a nullity so long as it is not

declared to be null and void, by a competent court. In the instant case, when A-1 married Boopathi, his marriage with P.W. 1 was still in

subsistence and valid. The marriage between the two came to be declared as void only through Ex.B3, which came to be pronounced after A1 got

married to Boopathi on 19th August, 1977. The first Petitioner''s former marriage was not dissolved or declared to be void at the time of the

ceremony of his second marriage on 19th August, 1977. It cannot be said that the ultimate declaration as void of the first marriage can come to the

rescue of A-1 for what he had done on 19th August, 1977. When he married for the second time, he was doing an act which undoubtedly is an

offence in the sense that his marriage with P.W. 1 was in subsistence. I am unable to accept the contention of the learned Counsel for the

Petitioners because the marriage of P.W. 1 with A1 was - declared void by Ex.B3, which would come into effect from the date of the marriage of

A1 with P.W. 1. In a matter like this, criminal liability cannot be allowed to fluctuate on the fortunes of parties in civil proceedings. If the contention

of the learned Counsel is to be accepted then the other side might as well come forward subsequently to contend that Ex.B5; had bean set aside in

appeal and hence an offence has been made out. Such situations create credibility of law being affected. It is sufficient to make out a case of

criminal liability, if A1 knew his first wife was alive and that the marriage with her had not been dissolved or annulled at the time he married

Boopathi for the second time. I am in agreement with the order of the learned. Sessions Judge. The convictions of all the Petitioners are correct

and. the sentences need no interference.

In the result, the convictions and sentences are confirmed and the petition stands dismissed.