Parkash Kaur vs Dalbir Singh

A.S. Nehra, J.—This revision petition has been filed by Smt. Parkash Kaur petitioner (Complainant) against the order dated 5-7-1989 passed by the Judicial Magistrate 1st Class, Fazilka, by which the respondents were discharged and the complaint filed by Smt. Parkash Kaur was dismissed.

Smt. Parkash Kaur on 24.1.1983 filed a complaint under Sections 494/109, Indian Penal Code, against Dalbir Singh and others, respondents making therein the following allegations.

The marriage between the petitioner (complainant) and Dalbir Singh, respondent No. 1, was solemnized by way of Anand Karaj on 9.3.1981. The parties are governed by Hindu Law and the marriage was solemnized as per Hindu Dharam Shastra as per Hindu Sikh religion and Anand Karaj ceremony at village Sardargarh. They had been cohabiting as husband and wife of village Narwana and, out of the wed-lock one son name Paramjit Singh was born at village Mobeke on 16.7.1982. Thereafter, the petitioner went to the house of her in-laws where she started living as usual as wife of Dalbir Singh, respondent No. 1. Her father-in-law, mother-in-law as well as Dalbir Singh respondent started saying that she brought less dowry in her marriage. Despite her showing inability to bring more dowry, Dalbir Singh respondent started ill-treating and beating the petitioner by saying that if she did not bring Rs. 10,000/- for purchasing a motor-cycle, then she would not be kept in his house. As the petitioner could not meet this demand, she was turned out of the house by Dalbir Singh respondent saying that she would not be kept by him and he would solemnize second marriage. The petitioner came to the house of her parents. The father of the petitioner along with the petitioner and two other persons, namely, Bachan Singh and Dewan Singh, approached respondents Nos. 1 to 4 and requested them not to put a demand of more dowry as Kangan Singh, father of the petitioner, was a poor man and his daughter be kept with them but they refused to do so saying that they would solemnize second marriage of Dalbir Singh, respondent No. 1. It was alleged by the petitioner that about one month prior to filing of this complaint, she came to know that Dalbir Singh respondent had solemnized a second marriage with Smt. Vidya Bai respondent No. 5, by performing Anand Karaj ceremony as per Sikh rites by taking seven Pheras around Shri Dalbir Singh in connivance with all other accused-respondents who had the knowledge about the subsistence of marriage between the petitioner and Dalbir Singh respondent In the second marriage, Kirpal Singh son of Harnam Singh was a middle-man and Anand Karaj hymns were recited by Kapoor Singh son of Chaseet Singh where Bhagwan Singh son of Maha Singh of Dhabwali Dhab was also present. The petitioner and her father went to Dewan Singh son of Malla Singh of village Narwana, Tehsil Suratgarh, and collected a Panchayat and went to the house of the accused-respondents and said that the petitioner be kept in the house by Dalbir Singh respondent and the second wife should be left by him, but the accused-respondents Nos. 1 to 5 refused to be do so and, in the presence of the Panchayat, admitted that Dalbir Singh, respondent No. 1, had solemnized second marriage on 9-3-1982 with Smt Vidya Bai respondent No. 5, in connivance with all the accused-respondents who were residing in the house of Dalbir Singh, respondent No. 1.

There is no denial about the marriage of the petitioner with Dalbir Singh respondent as there is no suggestion to any of the witnessed of the petitioner to rebut the testimony of the witnesses of the petitioner who have consistently testified that marriage between Dalbir Singh respondent and the petitioner was solemnized and out of the wed-lock one son named Paramjit Singh was also born. So, the first marriage between the parties stands proved.

With regard to the solemnization of second marriage the petitioner examined PW-2 Datar Singh who stated that witnessed the solemnzation of the marriage between Dalbir Singh, respondent No. 1 and Smt. Vidya Bai, respondent No. 5 ; PW-3 Kapoor Singh Granthi who deposed to the reciting of Anand Karaj ceremony and with regard to the circumstantial evidence ; PW-4 Dewan Singh and PW 6 Kashmir Singh. So the petitioner did not examine Bahal Singh, Bhawan Singh and Bachan Singh, who were examined by her in preliminary evidence but unexpectedly examined PW-2 Datar Singh and PW-5 Kashmir Singh in pre-charge evidence. The respondents could not get PW-2 and PW-5 confronted with their statements which must have been recorded in preliminary evidence. Even their names also do not find mention in the list of witnesses. So, the valuable right in this respect has been snatched by the petitioner from the respondents by unexpectedly examining the witnesses of her choice.

As per well-settled law, it must have been pleaded and proved on the file as to what custom of marriage the parties are recognizing, but it has not been pleaded or proved on the file if over respondent No. 5 also was required to perform her marriage as per Anand Karaj ceremony which allegedly has been carried out by respondent No. 1, for solemnizing his marriage with respondent No. 5. Still, as per settled law, Anand Karaj ceremony is performed by reciting four lawans from Shri Darbar Sahib. At all, in any of the circumstances, seven Pheras are not required to be taken around Shri Darbar Sahib. It has been categorically pleaded by the petitioner in paragraph 4 of the complaint that, while performing Anand Karaj ceremony, seven Pheras around Shri Dalbir Sahib were taken by Dalbir Singh (respondent No. 1) and Salt. Vidya Bai (respondent No. 5). No word with regard to reciting of four lawans has been mentioned in her complaint by the petitioner. Not only this, none of the witnesses of the petitioner has testified that four lawans ever were recited by the Granthi. Even the Granthi himself as PW-3 did not testify if he recited four lawans from Shri Guru Granth Sahib while performing Anand Karaj ceremony between respondent No. 1 and respondent No. 5. Even to support the case of the petitioner, PW-3 did not testify if seven Pheras around Shri Darbar Sahib were taken by respondents Nos. 1 and 5 at that time. He testified only that he had read the marriage of Dalbir Singh and Smt. Vidya Bai by way of Anand Karaj. So, the statutory and mandatory provisions with regard to solemnizing of the marriage" by Anand Karaj ceremony have not been proved on the file by the petitioner.

In my opinion, PW-3 appears to be a made up witness as, in his cross-examination, he has testified that he came to village Dhabwali Dhab, where the alleged marriage was solemnized in 1980 and remained there for one year but he did not know in whose house he resided there ; as to who were his neighbourers that house ; whereas marriage between the parties, as per the complaint, was solemnized On 9-3-1982 (9-12-1982 as per improvement made by the petitioner and her witnesses). The testimony of PW-3 further the case of the petitioner doubtful when one Kapoor Singh son of Ghasita Singh appeared in the Court on 27-2-1989 who though has not been examined by the petitioner yet in compliance of the request of the petitioner he had appeared in the Court and it was requested by the petitioner that Kapoor Singh was not their witness. So, simple statement of Kapoor Singh was recorded, who stated therein that he had left the working as priest (Granthi) since about seven years but he has kept Shri Guru Granth Sahib in his house and he still recites the Anand Karaj ceremonies. In their village, at any time, no other Granthi of the name of Kapoor Singh resided. PW-3 Kapoor Singh testified that he did not know other Kapoor Singh Granthi of village Dhabwali Dhab ; whereas Kapoor Singh who appeared on 27-2-1989 in the lower Court is a permanent resident of village Dhabwali Dhab. So, it cannot be said that PW-3 Kapoor Singh ever lived in village Dhagwali Dhab. So, the question of performing Anand Karaj ceremony between respondents Nos. 1 and 5 does not arise. Not only this, PW-3 did not know about the situation of village Dhabwali as he testified that village Dhabwali is situated on Malout-Abohar road, but there is not such village on that road ; judicial notice of which is taken as village Dhabwali Dhab is situated on Malout-Sirsa road which is towards southern side of Malout City, whereas Abohar is towards western side of Malout City. It has been testified by PW-3 that, at the time of recording of preliminary evidence on 21-2-1983, he was residing at village Kapoor Shah, but he has given his address of village Dhabwali Dhab. In these circumstances, the evidence of PW-3 is not helpful to the petitioner (complainant).

As per testimony of PW-1, she came to know about solemnizing of second marriage when the Panchayat went to the house of accused-respondent No. 1 on Katak 15, obviously of year 1982, corresponding to the last week of October or so, as no other Panchayat, at any time, has been pleaded or proved by the petitioner to have approached the accused-respondent but the marriage is stated to have been solemnized in the month of Posh corresponding to December 1982. So, prior to solemnizing of the marriage, how the petitioner came to know about it, has been clarified by the petitioner. In her complaint, the petitioner has not made mention as to from whom she came to know about solemnizing of the second marriage by respondent No. 1 with respondent No. 5. Not only this, PW-2 Datar Singh, though is the relative of the complaint, yet after having witnessed the marriage, had not informed the petitioner at any time. Even, he has not made a mention with regard to solemnizing of second marriage with any person of his village, which appears to be impossible as second marriage usually becomes the talk of the village. Not only this, PW-2 had raised objection, at that time, to Harnam Singh (respondent No. 7) but had told Datar Singh that he should not worry as Dalbir Singh, respondent No. 1 is an Advocate. So, keeping himself mum by Datar Singh makes the case of the petitioner further doubtful. Merely making mention by PW-2 Datar Singh and PW-2 Kapoor Singh about the presence of remaining accused-respondents does not make them liable to any offence of bigamy as it has not been testified by these witnesses as to what sort of act or omission was being performed by these accused-respondents. So, the testimony of these witnesses does not establish any incriminating matter on the file against any of the accused-respondents. The petitioner also could place on the file the birth certificate of the children allegedly born out of the wed-lock of respondents Nos. 1 and 5 after solemnizing their marriage, but she has not done so.

A strict proof of second marriage is required to base the conviction of accused persons. Merely because a reference has been made in the order Exhibit P-1 with regard to keeping of a woman in his house by Dalbir Singh (respondent No. 1), it does not dispense with the proof of solemnizing the second marriage by respondent No. 1 with respondent No. 5. Even the reference made in Exhibit P-1 by the learned Sessions Judge, Ferozepur, while declining the revision petition against the order dated 26.7.1986 on an application u/s 125 of the Code of Criminal Procedure against the order of Judicial Magistrate 1st Class, Fazilka, cannot be said to be the conclusive proof of "solemnizing a second marriage. So, the petitioner cannot take any benefit of judgment Exhibit P-1. There was no occasion for PW-2 Datar Singh to attend the marriage though he testified that he was invited by Harnam Singh, father of Smt. Vidya Bai (respondent No. 5), to join the marriage party. The petitioner has failed to establish her case to frame charge against any other respondent under Sections 494/109, Indian Penal Code as the evidence on the file is not sufficient to base the conviction of the accused-respondents.

In view of the above-mentioned discussion, there is no merit in this revision petition and the same is dismissed.