Koodappan vs Kothai alias Kothai Nachiarammal

Maheswaran, J.—The revision petitioner Koodappan has been convicted of an offence under S.494, I.P.C. by the learned Sub-Divisional

Judicial Magistrate, Tuticorin in C.C. No.67 of 1975 and was sentenced to (sic) undergo rigorous imprisonment for one year. In appeal, the

Additional Sessions Judge, Tirunelveli confirmed the conviction and sentence.

The facts are:-P.W.1, Kothai alias Kothai Nachiarammal married the revision petitioner Koodappan, M.A., B.T., a teacher working in South

Arcot District on 29th January, 1970 at Ambasamudram. When she became enceinte, she was sent to her father''s house for confinement. The

revision petitioner never cared to get her back after P.W.1 was delivered of a baby, but P.W.4, adopted brother of P.W.1 took her and the child

and left them in the house of the revision petitioner and they were again turned out of the house of the revision petitioner. On 14th July, 1974 the

revision petitioner married Venkatammal, the second accused, at Vaikuntapathi temple at Tuticorin. The marriage was solemnized by P.W.2, an

archagar of the said temple. A-3 to A-6 were also present in the temple. Two weeks after the marriage P.W.1 heard about the news of the

marriage from P.W.4 and she preferred a complaint before the trial Court. A-4, the mother of the revision petitioner, died during the pendency of

the trial and the learned Magistrate found the first accused-revision Petitioner guilty of the offence with which he was charged and convicted and

sentenced him as stated above. The other accused were acquitted by the Magistrate The revision petitioner is aggrieved and has filed this revision.

Before me, the learned counsel for revision petitioner contended that even assuming that a marriage did take place between the revision

petitioner and the second accused, the marriage was not a valid marriage and therefore, no offence has been committed, Before I advert to discuss

this point raised by the learned counsel for the revision petitioner I must point out that it has been proved by overwhelming evidence that the

revision petitioner married the second accused Venkatammal. P.Ws. 2 and 3 who have seen the marriage have clearly spoken to the marriage

between the revision petitioner and the second accused and about the exchange of garlands and the tying of thali. P.W.2 Venkataraman, is the

prohit of Srivaikuntapathi temple at Tuticorin. He has stated that he solemnized the marriage between the revision petitioner and the second

accused and that they exchanged garlands, and the revision petitioner tied the thali around the neck of the second accused. P.W.3 is a native of

Ambasamudram. She came to her sister''s house at Tuticorin. She went to the temple along with one Rangaramanujam and witnessed the marriage

between the revision petitioner and the second accused. In Ex. P-4 the marriage receipt, both the revision petitioner and the accused have signed

and that has been proved by P.W. 2, also. The evidence of P.W. 2 has been accepted by both the courts below. P.W. 2, the prohit has acted on

the certificate, Ex. P5 issued by the Village Munsif, A7, which is to the effect that the marriage between the revision petitioner and the second

accused is their first marriage. The fact that A7, issued Ex.P5, is also not disputed. Ex. P6, the certificate from the temple authorities also shows

that the revision petitioner and the second accused got married on 14th July, 1974. The evidence of P. Ws. 2 and 3 and Exs. P-4 and P-5 very

clearly prove the marriage between the revision petitioner and the second accused and there is a clear finding by both the courts below that the

revision petitioner married the second accused.

What is now contended before me, as earlier pointed out, is that a valid marriage has not been performed and therefore no offence under

S.494, I.P.C. is made out. The learned counsel contended on the authority in Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra

and Another, that if the marriage is not a valid one according to the law applicable to the parties, no question of its being void by reason of its

taking place during the life of the husband or wife of the person marrying arises and that if the marriage is not a valid marriage, it is no marriage in

the eye of law. Now, it is not disputed, and in fact, admitted that the revision petitioner has married P.W. 1 earlier. Ex.P-2 is the invitation for the

marriage. The evidence of P.W. 1 would show that the marriage between her and the revision petitioner is subsisting.

The learned counsel now contends that the word ""solemnize"" means to celebrate the marriage with proper ceremonies and in due form and that

unless the marriage is celebrated or performed with proper ceremonies and in due form, it cannot be said to be ""solemnized"" in accordance with S.

5 of the Hindu Marriage Act, 1955. The petition clearly states that the revision petitioner married the second accused on 14th July, 1974 at about

11 A.M. ""according to the Hindu rites and caste customs and by tying thali and exchanging garlands."" The evidence of P.Ws. 2 and 3 would show

that thali was tied by the revision petitioner around the neck of the second accused and that they also exchanged garlands. Under S. 7-A, as

amended by a Madras Act 21 of 1967 exchange of garlands and tying of thali would, be sufficient to validate the marriage. I earlier pointed out the

averments in the petition which say that the marriage was celebrated in accordance with the Hindu rites and the custom of the community and also

by tying thali and by exchange of garlands. After the coming into force of the Hindu Marriage (Madras Amendment) Act 21 of 1967, it is open to

parties to choose to perform the marriage according to the custom prevailing in the community, or according to the provisions of the Amended act.

Even granting that this marriage between the revision petitioner and the second accused was not celebrated with ceremonies and in due form

prescribed, yet, the exchange of garlands and tying of thali in accordance with provisions of S. 7-A of the Act would, in my view, constitute a valid

marriage under law. It is contended that P.W. 1 has not stated that the revision petitioner has performed a suyamariyathai or seerthirutha marriage.

In my view, it is not necessary to mention the words ''Suyamariyathai'' or ""Seerihirutha"" marriage in the petition filed by P.W. 1. P.W. 1 has

averred in her application that the revision petitioner and the second accused married at Vaikuntapathi temple and that the revision petitioner tied

thali and then both the revision petitioner and the second accused exchanged garlands. The Amendment Act says that notwithstanding anything

contained in S.7, but subject to the other provisions of this Act, all marriages to which S.7 applies solemnized after the commencement of the

Hindu marriage (Madras Amendment) Act, 1967, shall be good and valid in law. The Marriage performed was therefore, in consonance with the

law in force. I concur with the finding of the courts below that the revision petitioner has married the second accused and that their marriage is

valid. I have already pointed out that this second marriage was celebrated when the marriage between the revision petitioner and P.W. 1 is

subsisting. I do not see any reason to interfere with the findings of the courts below. The conviction therefore, is correct and is confirmed.

As regards the sentence, the learned counsel for the revision petitioner pointed out that the revision petitioner has lost his job and is in great

mental pain and that the court may take a lenient view of the sentence. Having regard to those circumstances, I feel that the ends of justice will be

served by reducing the sentence of imprisonment to the period already undergone. The sentence of imprisonment is therefore, reduced to the

period already undergone.

Except for this modification in the sentence of imprisonment, the revision in other respects fails and is dismissed.