Parkasho Devi vs Mohan Lal

J.S. Sekhon, J. (Oral)

Mrs. Parkasho Devi depicting herself as the first wife of Mohan Lal, accusedrespondent, filed complaint under Section 494 read with Sections 101/120B IPC against Mohan Lal and others alleging that Mohan Lal, accusedrespondent, had contracted a second marriage with other Mst. Parkasho Devi, daughter of Jai Narain in the year 1979. The admission of Mohan Lal, accusedrespondent. Ex. PA in a suit for permanent injunction that he had contracted a marriage on 6.6.1976 at Delhi with a girl with whom he had love affair was also pressed into service by the complainant.

The trial Court after recording the evidence acquitted the accusedrespondent by holding that the complainant had failed to prove that the second marriage was performed by Mohan Lal according to religious ceremonies and personal law of the parties. The admission of the accused Mohan Lal in other proceedings regarding second marriage was held not sufficient to prove the solemnization of the second marriage according to personal law of the parties by placing reliance on the decision of the Apex Court in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153.

Feeling aggrieved against the order of the trial Court, the complainant came up before this Court for permission to file an appeal against the order of acquittal. The Division Bench of this Court granted leave qua accusedrespondent Mohan Lal only.

Mohan Lal, respondent filed an application that Mst. Parkasho Devi had effected a compromise with him and undertaken to withdraw this appeal. Mst. Parkasho Devi has failed to turn up despite specific direction to her Counsel to ensure her presence. Under the circumstances, there is no option but to dispose of the appeal on merit.

We have heard the learned Counsel for the parties besides perusing the record.

The law is well settled on the point that for conviction on a charge of bigamy under Section 494 of the Indian Penal Code strict proof of solemnization of second marriage in accordance with the personal law of the parties is essential and that mere admission of the accused that he had contracted second marriage is not enough. The observations of the Apex Court in Smt. Priya Bala Ghosh''s case (supra) relied upon by the trial Court can be referred with advantage. The relevant para reads as under :

"In Kanwal Ram v. The Himachal Pradesh Admn, 1986 (1) SCR 539, this Court again reiterated the principles laid down in the earlier decision referred to above that in a procecution for bigamy the second marriage has to be proved as a fact and it must also be proved that the necessary ceremonies had been performed. Another proposition laid down by this decision, which answers the second contention of the learned Counsel for the appellant is that admission of marriage by an accused is no evidence of marriage for the purpose of proving an offered of bigamy or adultery. On the evidence, it was held in the said decision that the witnesses have not proved that the essential ceremonies had been performed."

The trial Court had dealt with this matter in paras 13 and 14 of the judgment, which read as under :

"13. Now coming to the factum of solemnization of the second marriage with Smt. Parkasho Devi who was arrayed as accused No. 4 in the original complaint, the complaint could not substantiate on record that the alleged marriage with accused No. 4 was solemnized in accordance with Hindu rites and ceremonies and the solitary evidence on record is Ex. PA, the reply in form of affidavit containing evidence regarding the second marriage and the oral testimony of PWs Mam Chand, the brother of the complainant. Regarding the admission as contained in Ex PA, the learned Counsel for the accused referred before me 1971 SC 1153 (Smt. Priya Bala Ghosh v. Suresh Ghosh) to show that the mere admission by the accused that he had contracted second marriage is not sufficient for the proof of solemnization of second marriage in accordance with essential religious rites as applicable to the parties. This authority is clearly applicable to the present case and in the present case as well as in the cited authority, the admission made by the accused is in some previous litigation. Hence, following the law laid down in the above referred authority, it cannot be safely held that the accused was married with Smt. Parkasho Devi (accused No. 1) and Ex PA is not sufficient to prove the solemnization of second marriage in accordance with Hindu rites and ceremonies. Otherwise too, from the admission as contained in Ex. PA, it cannot be inferred that the alleged second marriage took place on 3.9.1976 as alleged by the complainant as according to the averments mae in Ex. PA the marriage had already been solemnized on 6.6.1976 in a temple (Mandir) and only a vidai ceremony was to be carried on 3.9.1979. In this way, from the admission contained in Ex. PA, it cannot be inferred that the second marriage was solemnized in accordance with Hindu rites and ceremonies as applicable to the parties as the factum of Saptapadi is not substantiated on record.

Now the only evidence advanced by the complainant for the proof of second marriage is that of PW8 who again could not aver that the essential ceremonies including Saptapadi etc. were performed in his presence because this PW Mam Chand went on deposing the contradictory statements and stated in his cross examination on 3.7.1986 that when they reached the house of accused No. 4 the marriage ceremony was in progress and in this way PW 8 could not depose that Saptapadi was completed in his presence. Otherwise too, the testimony of PW8 is selfcontradictory because at one place he stated that he remained at the Bus Stand at the direction of the police and the police went to the spot of second marriage and told him that the marriage party has gone and on the other hand, he stated that ceremony was in progress when he reached the spot. Moreover, PW8 stated that Ram Pal and Mehar Singh were the persons who went to the spot of second marriage but none of the witnesses were called by the complainant and as such by no stretch of imagination, it can be inferred from the testimony of PW8 that the second marriage of the accused with Smt. Parkasho Devi (accused No. 4) took place in accordance with Hindu rites and ceremonies. For the offence under Section 494 of the Indian Penal Code, the essential ceremonies constituting the second marriage must be proved and the mere admission of the marriage by the accused in not an evidence for the same as held in AIR 1966 SC 614. In this way, it can be safely held that the complainant could not prove the essential ceremonies for the performance of second marriage and as such for the purpose of Section 494 of the Indian Penal Code, it cannot be held that the accused entered into second marriage with accused Parkasho Devi named as Accused No. 4.

A bare glance through the above referred observation of the trial Court reveals that the evidence of Mam Chand PW8, brother of the complainant qua solemnization of second marriage by Mohan Lal, accused respondent, with Parkasho Devi, accused No. 4 was rightly discarded by the trial Court as he had failed to depose about the essential ceremonies required for solemnization of valid marriage of a party professing Hindu Religion.

Consequently, we find no merit in this appeal against acquittal. It is ordered to by dismissed. This also disposes of Cr. Misc. No. 2606 of 1992.