Ponnuswami vs Visalakshi and Another

K.M. Natarajan, J.—This revision is directed against the judgment of the learned Sessions Judge, Pudukottai, confirming the conviction and sentence passed by the learned Chief Judicial Magistrate, Pudukottai, u/s 494, I.P.C., against the Petitioner to undergo rigorous imprisonment for three years.

The facts of this case giving rise to this revision are as follows: P.W. 1, the complainant, is the first wife of Al, the Petitioner herein. P.W. 2 married the Petitioner about six years ago according to the custom of their community known as Ambalakarars, viz., blowing of horn by a woman, tying of the and exchange of garlands. P.W. 1 and the Petitioner lived together as husband and wife and about 3 months prior to 1st July, 1979, the Petitioner sought the consent of P.W. 1, to marry A2, as his second wife, which P.W. 1, refused to give. On a Friday prior to 1st July, 1979, the Petitioner went to the house of P.W. 2, and wasted him to attend the marriage on 1st July, 1979 at Pilliar Koil. P.W. 2, who is the brother-in-law of P.W. 1, informed P.W. 1 about the same. At the instance of P.W. 1, P.Ws. 2 to 4 questioned the Petitioner about the proposed marriage and the Petitioner reported by saying that he has already decided to marry A2 and there is no necessity for them to interfere. Then, on 1st July, 1979 at about 8 a.m., when P.Ws. 1 to 4 and others went to Pilliar Koil, they Saw A1 tying a thali with a yellow string around the neck of A2, standing in front of Pilliar idol. Thereafter, A1 and A2 exchanged garlands while A8 was blowing horn. The other accused were receiving guests and offering sandal paste and. betel leaves, etc. All the objections by P.Ws. 2 to 4 were not heeded. P.W. 1 went to the house of the Petitioner and found A1 and, A2 living together. All her attempts to live with him proved to be of no avail and thereafter she issued a notice Ex.P1 to the Petitioner, who also sent a reply admitting the marriage with. A2. Thereafter, she has filed a private complaint against A1 and 8 others. Apart from P.W. 1, P.Ws. 2 to 4 were examined to prove about the factum of marriage of A1 with A2.

The trial court convicted the Petitioner (A1) u/s 494, I.P.C., and sentenced him to undergo rigorous imprisonment for three years, A7 and A8 u/s 494 read with Section 109, I.P.C, to undergo rigorous imprisonment for one year each and acquitted A2, A3, A4, AS and A9. On appeal, the learned Sessions Judge confirmed the conviction and sentence of the Petitioner, but set aside the conviction of A7 and AS and acquitted then.. Hence this revision by Al.

The learned Counsel for the revision Petitioner mainly contended that the Courts below ought not to have accepted Use evidence of P.Ws. 1 to 4, which is parrot like repetition and tutored one and highly interested and that there is no evidence to prove that the second marriage of A1 with A2 was celebrated according to custom of the community to which they belong.

I have carefully tone through the judgments of both the Courts below and the respective contentions of the learned Counsel for the revision Petitioner and the Public Prosecutor. It is the positive evidence of P.W. 1 that her marriage was celebrated according to custom of the community, viz, Ambalakarar, by blowing of horn by a woman, tying of tali and exchanging of garlands and likewise the second marriage of we Petitioner with A2 was celebrated and that all ceremonies were performed P.Ws. 2 to 4 have fully corroborated the evidence of P.W. 1 in this regard.

Nothing was suggested to P.Ws. 1 to 4 by the defence that these ceremonies are not the one which is prevailing in the community of Ambalakarar, or any other ceremonies including saptapadi which are absolutely necessary according to the custom of their, community were performed, to prove the marriage.

The learned Counsel for the revision Petitioner relied upon the decision of Sathar Sayeed, J. reported in Annamalai Vanniar and aethers v. Palanlammal and Anr. 1980 T.L.N.J.221'', and contended that the alleged second marriage was not at all celebrated observing the proper ceremonies, and hence, it is not valid so as to attract the provisions of Section 494, I.P.C.

It will be very relevant to extract provisions of Section 494, I.P.C, for proper understanding of the case. Section 494, I.P.C.; reads follows-

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

The essential ingredients of this offence are:

that the accused spouse must have contracted the first marriage;

that while the first marriage was subsisting, the spouse concerned must have contracted a second marriage; and

that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.

Under Section 17 of the Hindu Marriage Act, "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 India Penal Code shall apply accordingly.

Section 7 of the Hindu Marriage Act provides:

(1) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the Saptapadi (that is, taking of seven steps by the bridegroom and the bride jointly before the Sacred fire) the marriage becomes complete and binding when the seventh step taken.

The word'' solemnized ''used in Section, 17 clearly indicates that a marriage must be celebrate with proper ceremonies and in due form according to the custom of the community to which the parties belong. Section 7 of the Hindu Marriage Act enjoins that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto Section 7(2) makes It clear that where such rites and ceremonies include, the Saptapadi, the marriage is complete and binding when the seventh step is taken. When it is proved that Saptapadi is not a part of the customary rite, it need not be performed.

In Gopal Lal v. State of Rajastan 1979 M.L.I. Cri. 480, (S.C.), their Lordships of the Supreme Court have held as follows -

...it was nest contended by Mr. Mulla that there is no legal evidence to show that the second marriage which is said to be a nata marriage was actually performed. We are afraid, we are unable to go into the question because three Courts have concurrently found as a fact that the parties were governed by custom of nata marriage and the two essential ceremonies of this marriage are: (1) that the husband should take a pitcher full of water from the Head of the prospective wife; (2) that the wife should wear chura by the husband.

There is evidence of P.Ws. 2, 3, 4 and 5 who have proved, the fact that these ceremonies had been duly performed in their presence. That there was such a custom which requires these ceremonies was admitted by P.Ws. 3 and 5, who were examined by the Appellant. The evidence led by the prosecution has been accepted by the High Court and the Courts below and after pursuing the evidence we are not in a position to hold that the finding of facts arrived at by the courts below are wrong in law or perverse. From the evidence let by the prosecution, therefore, It has been clearly established that the second marriage which was performed by the Appellant Gopal Lal with Gopi was a valid marriage according to the custom and of the nata marriage prevalent -in the Telli community to which the Appellant belonged....

In Re: Dolgonti Raghava Reddy and Another, , it was held that Homam and Saptapadi ceremonies are not essential in the Reddi community in Telengana area and that marriage performed without such ceremonies is valid and is not hit by Section 494, I.P.C. It was further observed in the said decision that when Homam itself is not there, then no question of Saptapadi around the sacred fire arises because Saptapadi comes only where invocation of sacred fire is prescribed and they go together. Where there is no custom in the community to invoke sacred fire what must follow is that the requirement of Saptapadi also is not necessary. Similarly, in ILR 1971 A.P. 163 it was held that the only essential ceremonies in the marriage of Lingayat Reddy Community are tying of tali and Kankam bandhanam that kanyadam and ''Saptapadi'' and do not constitute, essential part of the necessary marriage ceremonies.

In Kaplla Venkota Laxmi v. Kaplla Parget hanarayana 1969 M.L.J. (Cri.) 836 (A), it was held that when it is. proved that Saptapadi is not part of the ceremony of marriage, then it need not be proved; otherwise Saptapadi remains as an essential ceremony in a Hindu marriage.

In the decision relied on by the learned Counsel for the revision Petitioner in Anna-malai Vanniar and Ors. v. Palaniammal and Anr. 1980 T.L.N.J 221 cited supra), there was a purohit who performed the marriage, and the Homam was performed and it was observed by the learned Judge in that case as follows-

In this case, the necessary ceremonies that are required by law have not been proved, excepting to the fact that only Homam, was performed. When once the contention of the parties is that the marriage has taken place as'' , it is for the parties to show that ceremonies have taken place as '' and in the absence of such proof, it cannot be held that the Petitioners are liable for an offence u/s 494 I.P.C.

In the above case, the evidence relating to the essential ceremony of ''Saptapadi'' was lacking even though Homam was performed. Therefore, in the circumstances of the said case, it was held that the marriage was not celebrated as per in compliance with the provisions of Section 7 of the Hindu Marriage Act. The said decision is not at all applicable to the facts of the instant case. The decision of the Supreme Court in Gopal Lal v. State of Rajas than 1 referred to above is on all fours applicable to the facts of this case.

In the instant case, the prosecution has adduced acceptable evidence through P.Ws. 1 to 4 regarding the custom of the Ambalakarar community to which the parties belong and also the performance of the required ceremonies in the second marriage. Both the courts below have arrived at a concurrent finding that the parties are governed by the custom of Ambalakarar community and three essential ceremonies of the marriage, viz. (1) blowing of horn by a woman, (2) tying of tali, and (3) exchanging of garlands were proved to their satisfaction. There are no relevant materials placed before me to show that the concurrent findings of both the Courts below are wrong in law or perverse. Hence, I do not find any merit in the submissions made by the learned Counsel for the revision Petitioner.

The contention of the revision Petitioner that P.Ws. 2 to 4 ate relations of P.W. 1 and, therefore, their evidence is tainted with interestedness has been rightly repelled by the trial court placing reliance on the decisions of the Supreme Court repotted in Hari Obula Reddy and Others Vs. The State of Andhra Pradesh, to the effect that the relationship of witnesses by itself is not sufficient to reject their testimony if it is otherwise consistent, clear, cogent and in conformity with natural probabilities so as to contain a ring of truth around it. Farther, the trial court was perfectly correct in accepting the evidence of P.Ws. 1 to 4 on the ground that P.W. 1 being the wife of the revision Petitioner, would not have set up P.Ws. 2 to 4 for the purpose of falsely implicating her husband.

Therefore, I do not find any manifest illegality or irregularity or gross miscarriage of justice in the concurrent findings of. both the Courts below requiring interference of this Court in this revision. Hence, I confirm the conviction of the Petitioner u/s 494, I.P.C.

As-regards the sentence it is sub mined that the Petitioner has already served imprisonment for a period of 14 days from 17th July, 1981, to 30 July, 1981, that P.W. 1 was living with the Petitioner even after the alleged second marriage, that the complaint was preferred after few months and that he in prepared to pay heavy fine, and hence, he may be dealt with leniently.

Having regard to the circumstances of the case, I feel that the ends of justice would, be met if the sentence of imprisonment is reduced to the period already under gone besides payment of fine of Rs. 2,500.

In the result, the conviction of the Petitioner is confirmed but the sentence of imprisonment is reduced to the period already undergone by the Petitioner. Further, he is sentenced to pay a fine of in default to undergo. rigorous imprisonment for two years. Out of the fine amount collected, a sum of Rs. 2,000 is ordered to be paid to P.W. 1 as compensation. Tins for payment of fine amount is two months from the date of receipt of records by the appellate court.

With this modification in sentence, this revision is dismissed.