Netai Halder vs State

This is a Rule issued at the instance of the Petitioner Netai Haider against his conviction and sentence passed u/s 494, Indian Penal Code, sentencing him to suffer simple imprisonment for two years and to pay a fine of Rs. 500, in default, to suffer further simple inprisonment for three months, passed by the learned First Class Magistrate at Diamond Harbour which was confirmed on appeal by the Additional Sessions Judge, 24-Parganas.

The prosecution case is that the accused Petitioner, a Hindu, married one Kanaklata Haider according to Hindu rites and religion, and while the said marriage was still subsisting the accused married one Sumitra for the second time and thereby committed the offence of bigamy u/s 494, Indian Penal Code.

Mr. Bhupen Panda appearing for the Petitioner submits that to bring home the charge of bigamy the prosecution must prove that the accused having a lawfully married wife married again. 1''here-fore, to sustain the conviction we will have to be satislied that the Petitioner Netai validly married the complainant Kanaklata and also during the subsistence of that marriage married Sumitra again.

According to Mr. Panda, the prosecution has miserably failed to prove the said two marriages. Mr. Panda further urged that from the evidence it is not proved beyond all reasonable doubt that his client Netai did validly marry Kanaklata, his alleged first wife, and there is also no evidence that Netai went'' through any valid form of marriage with Sumitra. That being so, according to Mr. Panda, both the Courts below erred in appreciating the evidence and his client is entitled to be acquitted and the learned Magistrate and the Sessions Judge have failed to consider the case in its proper perspective and erred in law and fact.

The following cases were cited from the bar--(i) Gotan Lime Syndicate Vs. Commissioner of Income Tax, Rajasthan and Delhi, . In that case it was held:

Section 17 of the Hindu Marriage Act 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 has a husband or wife living and that the provision of Sections 494 and 495 IPC. shall apply accordingly.... The word ''solemnize'' means, in connection with a marriage, ''to celebrate the marriage with proper ceremonies" and in due form''... It follows therefore that unless the marriage is celebrated or performed with proper ceremonies and due form it cannot be said to be solemnized ....

In Mulla''s Hindu Law (12th ed., p. 615) it is stated that there are two ceremonies essential to the validity of a marriage.... one invocation before the sacred fire (Homa) and Saplapadi that is going round the fire together seven times. Secondly, (ii) Kanwal Ram and Others Vs. The Himachal Pradesh Admn., . In that case the Suprame Court confirmed that

a marriage is not proved unless the essential ceremonies required for its solemnization are proved to have been performed and in a bigamy case the second marriage as a fact that is to say the ceremonies constituting it must be proved.

(iii) Padullaparlhi Paradeshi v. Subbalakshmi AIR 1962 A.P. 311 says that the principles which govern the proof of first marriage also govern the proof of second marriage which has to be established in the case of the offence of bigamy, (iv) In the case of Phankari and Ors. v. The State AIR 1965 J.&K. 105, the word ''marries'' appearing in Section 494 denotes that the accused must have undergone some form of marriage but the form, must be recognised by law. Otherwise there would be hardly any difference between concubinage. and a lawful" marriage. The Legislature had not made any provision for punishing a person who keeps merely a concubine even when his first spouse is still living. Therefore, it is essential that both the marriages must be proved as a fact, (v) In the case of Ram Singh v. Susila Bai and Ors. AIR 1970 Mys. 201 it was not proved-that at the second marriage Saplapadi was performed,, it was held, there was no evidence for second marriage being solemnized according to the Hindu rights and, as such, the accused was entitled to benefit of doubt, (vi) In the case of Shri. Priya Bala v. Suresh Chandra AIR 1971 S.C. 1153 it was held that the essential ceremonies for the solemnization of the marriages must be proved and mere admission by the accused is not enough.

Now, relying on these, decisions Mr. Panda urged that no case has been proved against his client and, therefore, he should be acquitted and the rule should be made absolute. Mr. Dilip Dutta for the State on the other hand joins issue.

We have gone through the entire evidence in the case. We cannot say that there is no evidence that the first marriage of the Petitioner with Kanaklata was not properly solemnized. There is evidence of Kanaklata, P.W. 1, that "fire was burnt, khai was scattered, I was taken round by the fire by my husband". There are also evidence of other witnesses that the marriage was celebrated according to Hindu rites and religion. Therefore, we arc satisfied that the Homa and Saptapadi were duly performed with respect to the first marriage with Kanaklata, and that has been the concurrent findings of fact of both the Courts below. We are satisfied that the Petitioner and Kanaklata were duly and validly married and we uphold that finding. But that is not enough to convict the accused Petitioner. The prosecution must also prove that the second marriage with Sumitra was also selemnized according to the Hindu rites and religion. We find that with regard to the second marriage there is only evidence of P.W. 4 that the marriage with Sumitra was according to the: Hindu religion and P.W. 3 in his evidence says that he saw vermilion on the forehead of Sumitra. But there is no evidence of any particulars and we have tried in vain to find whether there was any faint suggestion about Homa and Saptapadi or the marriage was celebrated or performed with proper ceremonies and due form or the parties followed any other customary files. Mr. Dilip Dutta says that as there is no cross-examination on. the point by the defence, the solemnization has been duly proved. Ordinarily, in civil cases that perhaps would have been enough but in criminal cases there must be strict proof and the onus is stringent and that also appears to be the view of several cases cited above.

In that view of the matter we must say that the second marriage with Sumitra has not been proved beyond all reasonable doubt. As we have stated earlier that the prosecution to bring home the charge u/s 494, Indian Penal Code, must prove the solemnization of both the two marriages, but in the present case though the first marriage was duly proved there is no satisfactory proof of solemnization of the second marriage. So, according to us, the accused Petitioner is entitled to benefit of doubt and the conviction u/s 194, Indian Penal Code, should be set aside.

We, therefore, acquit the accused Petitioner and set aside his conviction and sentence and the Rule is made absolute. The accused should be discharged from his bail-bond.

A.K. De, J.

I agree.