Kulwant Kaur vs Shaminder Paul Singh and ors.

S. D. Bajaj, J.

In her complaint Ex. P1 filed in the court of learned Sub Divisional Judicial Magistrate, Fazilka on July 23, 1983, Smt. Kulwant Kaur complaint stated that she was married to Shaminder Pal Singh, accused No. 2 on June 19, 1971 and had given birth to five female children from his loins; that on July 1, 1983 during her life time, while having his first wife still living, accused No. 1 contracted second marriage with Smt. Baldev Kaur accused No. 4; that accused Nos. 5 and 6 are the parent of accused No. 1 and that accused No. 7 is the go between who served as intermediary for arranging the match and marriage. Accused Nos. I and 4 are the two principal accused charged under Sections 494 of the Indian Penal Code while accused Nos. 2, 3 and 5 to 7 are abettors charged under Section 494 read with Section 204 of the Indian Penal Code. On being charged with the commission of the offences aforesaid all the seven accused pleaded not guilty thereto and claimed to be tried. Vide it impugned judgment dated January 9, 1987, learned trial court acquitted all the seven accused by giving them the benefit of doubt. Feeling aggrieved from the judgment of acquittal Kulwant Kaur complainant has filed Criminal Appeal No. 331DBA of 1987 in this Court.

We have heard Shri T.S. Sangha, Advocate, for the complainant, Shri R.S. Ghai, Sr. Advocate, with Shri Bipan Ghai, Advocate, for the respondents and hays perused the relevant material on record very carefully.

In Bhaurao Shankar Lakhande and another v. State of Maharashtra and another, AIR 1965 SC 1964; Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; Kanwal Ram v. Himachal Pradesh Administration, AIR 1966 SC 614 and Gopal Lal v. State of Rajasthan, 1979 SC 113 their Lordships of the Supreme Court observed, "To prove the offence of bigamy, the prosecution must prove that the second marriage has taken place in accordance with essential religious rites applicable to the parties".

The word solemnize means in connection with a marriage to celebrate the marriage with proper ceremonies and in due form.

That unless the marriage is celebrated or performed with proper ceremonies and in due form it cannot be said to be solemnized. It is therefore essential. for purpose of Section 17 of the Act that the marriage to which Section 494 IPC applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form.

Note : The expression "marriage" in Section 494 IPC would mean marriage valid in form though not in law and the expression "marries" in the section would thus mean going through such a form of marriage.

A marriage is not proved unless the essential ceremonies required for its solemnization are proved to have been performed. The oral evidence cannot justify the conviction.

The word solemnize means, in connection with a marriage, `to celebrate the marriage with proper ceremonies and in due form according to the Shorter Oxford Dictionary. It follows, therefore. that unless the marriage is celebrated or performed with proper ceremonies and due form it cannot be said to be solemnized It is therefore essential. for the purpose of Sec 17 of the Hindu Marriage Act. that the marriage to which Section 494 IPC applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married will not make them ceremonies prescribed by law or approved by any established custom."

In the present case, the details of essential ceremonies performed at the time of second marriage are, "Thereafter accused No. 1 namely Shaminder Singh and accused No. 4 namely Baldev Kaur were made to sit in front of Guru Granth Sahib. Sardar Mukhtiar Singh son of Fateh Singh Granthi recited the Anand Karai at village Kundal and after each Lanv, they were asked to take Parkarma. After Anand Karaj ceremony, Surjit Singh accused No. 2 and accused Nos. 5 and 6 gave blessings." Granthi Mukhtiar Singh PW4 states. "I had read the lavans and recited the Shabad Biah Hoia mera Bahia (marriage has been performed)", distributed the Parshad and garlanded Surjit Singh Lambardar and, his wife Ajaib Kaur. Thereafter, I distributed the Deg." Neither the assertions made in the complaint nor the deposition of Mukhtiar Singh PW4 in this regard prove that the alleged second marriage of Shaminder Pal Singh with Suit Baldev Kaur was duly performed, with the performance of essential rites for a marriage according to law governing the parties. Performance of essential ceremonies like `Saptapadi'' and reading of the four Lanvas while the parties were doing so having neither been alleged nor proved, the alleged second marriage cannot be said to have taken place. In this view of the matter, the finding of not guilty returned by the learned trial court against all the seven accused is affirmed. In result the criminal appeal filed by the complaint against the acquittal of the accused fails and is consequently dismissed.