Neelam Jaiswal vs Shashank Jaiswal And Ors

The present petition under Section 482 of the Code of Criminal Procedure (henceforth 'Cr.P.C.) is directed against the impugned order dated

12.01.2015 by which learned Sessions Judge, Durg (C.G.) has rejected the revision affirming the order passed by learned trial Magistrate dismissing

the criminal complaint filed for offence punishable under Sections 494, 497 and 120(B) of the Indian Penal Code (henceforth 'IPC').

The petitioner in person/complainant would submit that she is the legally wedded wife of respondent No.

1 and respondent No. 1 has married some other woman in 2011 and is also blessed with two children, as such, she is guilty of bigamy which learned

trial Magistrate and revisional Court did not notice despite her statement and the statement of one Monika Mehra. She submits that the impugned

order and the order of trial Magistrate deserves to be setÂaside and matter be referred to trial Magistrate for taking cognizance of offence punishable

under Sections 494, 497 and 120(B) of the IPC.

Learned counsel for the respondents would oppose her submission and submit that the fact of second marriage has not been established and there is

no evidence on record to show that respondent no. 1 has ever performed second marriage with some other woman. As such, the fact of second

marriage has to be duly and strictly proved which has not been proved in the instant case. He would also submit that the provision contained in Section

497 of the IPC has already been struck down by the Constitution Bench of the Supreme Court in the matter ofB harat Singh and others v. Mst.

Bhagirathi AIR 1966 SC 405, therefore, the petition deserves to be dismissed.

I have heard the petitioner in person and learned counsel for the respondents, considered the rival contentions and went through the record with

utmost circumspection.

In order to have comprehension of the challenge made to the judgment of conviction and sentence, it would be profitable to notice Section 494 of

the IPC, which runs thus:

“494. Marrying again during lifetime of husband or wife.â€"Whoever, having a husband or wife living, marries in any case in which such

marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine.

Exception â€" This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of

competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of

the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such

person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the

person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.â€​

A bare and close perusal of Section 494 of the IPC would reveal the following essential ingredients of the offence under Section 494 of the IPC :

(i) The accused spouse must have contracted the first marriage,

(ii) While the first marriage was subsisting, the spouse concerned must have contracted a second marriage, and

(iii) Both the marriage must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had duly been

performed.

At this stage, it would be pertinent to mention that the offence under Section 494 of the IPC would be attracted only if the second marriage

becomes void by reason that it had taken place during the subsistence of the first marriage and in the lifetime of one of the spouse.

At this stage, it is profitable to notice Section

17 of the Hindu Marriage Act, 1955 (henceforth 'the Act, 1955'), which reads thus:

“17. Punishment of biagamy. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of

such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply

accordingly.â€​

Section 17 of the Act, 1955, clearly provides that the second marriage must be according to ceremonies required by law and if the marriage is void,

its voidness will only lead to the consequence from such marriage. The combined effect of Section 17 of the Act, 1955 and Section 494 of the IPC has

been considered by their Lordships of the Supreme Court in Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another AIR

1965 SC 1564, and has been held as under:

“4......Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such

marriage either party had a husband or wife living, and that the provisions of Ss. 494 and 495, I.P.C. shall apply accordingly. The marriage between

two Hindus is void in view of S. 17 if two conditions are satisfied :

(i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage

which took place between the appellant and Kamlabai in February 1962 cannot be said to be 'solemnized', that marriage will not be void by virtue of S.

17 of the Act and S. 494, I.P.C. will not apply to such parties to the marriage as had a spouse living.

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 S. 17 of the Act, that the marriage to which s. 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.â€​

Thereafter, in Kanwal Ram and others v. The Himachal Pradesh Administration AIR 1966 SC 61,4 their Lordships of the Supreme Court clearly

held that the essential ceremonies of the second marriage must be constituted and proved and admission of the marriage by the accused is not an

evidence of it for the purpose of proving the marriage, and held as under:

“7. The learned Judicial Commissioner, however, thought that apart from the evidence about the marriage ceremonies earlier mentioned there was

other evidence which would prove the second marriage. He first referred to a statement by the appellant Kanwal Rain that he had sexual relationship

with Kubja. We are entirely unable to agree that this, even if true, would at all prove his marriage with Kubja. Then the learned Judicial Commissioner

relied on a statement filed by Kubja, Hira Nand and Hiroo in answer to an application for restitution of conjugal rights filed by Sadh Ram against

Kubja and others, in which it was stated that Kubja married Kanwal Ram after her marriage with Sadh Ram had been dissolved. Now the statement

admitting the second marriage by these persons is certainly not evidence of 'the marriage so far as Kanwal Ram and Seesia are concerned; they did

not make it. Nor do we think, it is evidence of the marriage even against Kubja. First, treated as an admission, the entire document has to be read as a

whole and that would prove the dissolution of the first marriage of Kubja which would make the second marriage innocent. Secondly, it is clear that in

law such admission is not evidence of the fact of the second marriage having, taken place. In a bigamy case, the second marriage as a fact, that is to

say, the ceremonies constituting it, must be proved : Empress v. Pitambur Singh, ILR 5 Cal 566 (FB,) Empress of India v. Kallu, ILR 5 All 233,

Archbold, Criminal Pleading Evidence and Practice (35th Ed.) Art. 3796. In Kallu's case, ILR 5 All 233 and in Morris v. Miller, (1767) 4 Burr 2057:

98 ER 73, it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultry or bigamy

case: see also Archbold Criminal Pleading Evidence and Practice (35th ed.) Art. 3781. We are unable, therefore, to think that the written statement of

Kubja affords any assistance towards proving her marriage with Kanwal Ram.â€​

In Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh 1971 (1) SCC 86,4 their Lordships of the Supreme Court clearly held that it is essential that

the second marriage should have been celebrated with proper ceremonies and in due form and the prosecution has to prove that the alleged second

marriage has been duly performed in accordance with religious rites available to the form of marriage gone through by the parties and the admission of

the accused cannot be in law treated as an evidence of the second marriage having been taken place. It has been held as under:

“16. From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties, it will not

be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract Section 494 of the I.P.C. Again

in order to hold that the second marriage has been solemnized so as to attract Section 17 of the Act, it is essential that the second marriage should

have been celebrated with proper ceremonies andÂ​in due form.

In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the

essential ceremonies for valid marriage have been performed. After referring to the passage in Mulla's Hindu Law, 12th Edn. at page 615 dealing with

the essential ceremonies which have to be performed for a valid marriage, this Court, on the evidence held that the prosecution had neither established

that the essential ceremonies had been performed nor that the performance of the essential cermon is had been abrogated by the custom governing

the community to which the parties belonged In this view it was held that the prosecution in that case had failed to establish that the alleged second

marriage had been performed in accordance with the requirement of Section 7 of the Act. The effect of the decision, in our opinion, is that the

prosecution has to prove that the alleged second marriage had been duly performed in accordance with the essential religious rites applicable to the

form of marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties.

Further as pointed out by this Court in Kanwal Ram's case (supra), the admission in Ex. 2 cannot in law be treated as evidence of the second

marriage having taken place in an adultery or bigamy case, and that in such cases it must be proved by the prosecution that the second marriage as a

fact has taken place after the performance of the essential ceremonies.â€​

Thereafter, their Lordships of the Supreme Court, following the decision of Bhaurao Shankar case (supra), Kanwal Ram case (supra) and Smt.

Priya Bala case (supra), in Gopal Lal v. State of Rajasthan (1979) 2 SCC 170, clearly held that where a spouse contracts a second marriage while the

first marriage subsists, the spouse will be held guilty of bigamy under Section 494 IPC if it is proved in the sense that the necessary ceremony,

required by law or custom, has been actually performed. In Laxmi Devi (Smt) v. Satya Narayan and others (1994) 5 SCC 545 also, their Lordships of

the Supreme Court held that in the absence of proof of such a ceremony, the factum of second marriage cannot be held to have been made out.

Thus, it has clearly been held that in order to prove the offence of bigamy under Section 494 of the IPC, the prosecution is required to prove the

fact of second marriage strictly and unless the prosecution is able to prove the fact of second marriage, as required under the law, the accused, in

view of the authoritative pronouncements laid down by their Lordships of the Supreme Court in aboveÂnoted cases, cannot be held guilty for the

offence under Section 494 of the IPC.

Reverting to the facts of this case, it is quite vivid that so far as the second marriage is concerned, the petitioner/complainant in her complaint only

stated that her marriage was performed with respondent No. 1 namely Shashank Jaiswal and further stated that no divorce has taken place between

them and she is the legally wedded wife of respondent no. 1, but further did not state the date of second marriage, the name of the woman with whom

the respondent no. 1 is alleged to have performed second marriage and even the name of children which the respondent no. 1 is having with the

second wife. Likewise, in the statement before the Court she has stated that she was informed about the second marriage by one Monika Mehra and

Monika Mehra has also been examined and she stated that she was informed about it by Ankur Jaiswal that the Respondent No. 1 has performed

second marriage but Ankur Jaiswal has not been examined. As such, the petitioner in person/complainant was required to show that the second

marriage which is alleged to be solemnized by respondent no. 1 was actually performed. The petitioner in person/complainant was further required to

bring legal evidence on record. The essential ceremonies of second marriage allegedly performed by respondent No. 1 have not been proved by the

petitioner herein and she has failed to bring on record anything to prove the same, as such, there is no legal evidence on record that respondent No. 1

has ever performed second marriage with another woman in accordance with applicable law. As the second marriage and the essential ceremonies

constituting second marriage have to be strictly proved which the petitioner in person/complainant has failed to prove, it can be inferred that

respondent No. 1 has ever performed second marriage during the subsistence of their marriage so as to attract the penal provision under Section 494

of the IPC. Likewise, provision for adultery contained in Section 497 of the IPC has already been struck down by the Supreme Court in the matter of

Joseph Shine v. Union of India (2019) 3 SCC 39 in which their Lordships held that the provision is unconstitutional and observed as under:

“1) Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary. Section 497 is a

denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society. Section 497 violates Article 14 of the

Constitution;

2) Section 497 is based on gender stereotypes about the role of women and violates the non discrimination principle embodied in Article 15 of the

Constitution;

3) Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the

Constitution; and

4) Section 497 is unconstitutional.

5) The decisions in Sowmitri Vishnu v. Union of India, 1985 Supp SCC 137 : 1985 SCC (Cri) 32 5and V. Revathi v. Union of India, (1988) 2 SCC

(Cri) 308 are overruled.

In view of the aforesaid discussion, I do not find any merit in this petition filed under Section 482 of the Cr.P.C., therefore, it deserves to be and is

accordingly dismissed.