Rohidas Mahato @ Ruhidas vs State Of Jharkhand

The instant application is directed against the judgement dated 31.07.2014 passed by the learned 1st Additional Sessions Judge, Seraikella-Kharsawan

in Criminal Appeal No. 21 of 2010, whereby the appeal preferred by the petitioners have been partly allowed and the judgment of conviction and order

of sentence dated 19.04.2010 passed by the learned Sub-Divisional Judicial Magistrate, Seraikella in G.R. Case No. 414 of 2004, whereby the

petitioners have been convicted for the offence under Section 498A of the Indian Penal Code and Sections 3/ 4 of the Dowry Prohibition Act, has

been modified.

The learned appellate court in its judgment sustained the conviction of the petitioners so far as the offence under Section 498A IPC is concerned,

however, acquitted the petitioners from the charge under Sections 3/ 4 of the Dowry Prohibition Act.

The learned counsel for the petitioners vehemently argued that they are innocent and have falsely been implicated in this case. He further submits that

there is no valid marriage between the complainant and the petitioner no. 1, Rohidas Mahato @ Ruhidas. He further submits that the learned trial

court has committed a gross error in holding the marriage on the basis of simple affidavit which cannot be considered as a right of the parties to live as

husband and wife. He further submits that to constitute an offence under Section 498A of the Indian Penal Code the most important ingredient is that

the accused persons must be either husband or his family members. He further draws attention of this Court towards the major contradictions among

the deposition of the prosecution witnesses. Relying upon the depositions of prosecution witnesses, he submits that the learned trial court has

committed an error in holding that there was valid marriage and on the principle of maintenance, he convicted the petitioners. The learned appellate

court also did not take into consideration the specific defence of the petitioners that no marriage has ever been solemnized between the petitioner no. 1

and the complainant and as such, no case is made out under Section 498A of the Indian Penal Code.

Per contra, learned A.P.P. has opposed the prayer made by the petitioners.

Heard learned counsel for the petitioners and the learned A.P.P. for the State.

The peculiar facts of the case insisted this Court to look into the evidences which clearly transpires that none of the prosecution witnesses have said

that there was a valid marriage. P.W. â€" 1, P.W. â€" 2 has admitted that the marriage was not solemnized according to the social customs and rites.

Even P. W. â€" 3 has stated that there was no valid marriage. P. W. â€" 5 has also supported the contention of the accused persons by submitting in

Paragraph â€" 5 of his deposition that marriage of petitioner no. 1 and the complainant was not solemnized according to their customs and rites. Even

the father of the complainant who is P.W. â€" 6 also admits that the marriage was not performed in the house rather, it was done through affidavit.

This witness has also admitted the fact that there was no demand of any amount. Even the complainant who is P.W. â€" 7 has admitted before the

court in her cross-examination that no family members of her husband was present. She also admits that the marriage has been solemnized through an

affidavit.

In criminal jurisprudence the prosecution has to prove its case beyond all shadow of reasonable doubt and no person can be convicted on mere

surmises and conjuncture. In the instant case, there is an admitted position that none of the witnesses has deposed that there was a social marriage

between the complainant and the petitioner no. 1. The only fact which has been proved by the prosecution is that an affidavit has been sworn by the

husband to the effect that the complainant is his wife. It is settled law that to constitute a marriage in the eye of law it has first to be established that

the same was valid marriage. The bare fact that a man and woman live as husband and wife does not at any rate give them the status of husband and

wife even though they may hold themselves before the society as husband and wife. In the case of Reema Aggarwal v. Anupam And Others

reported in (2004) 3 SCC 199, the Hon’ble Apex Court has dealt this issue in Paragraphs â€" 8 and 9 which are quoted here in below:

“8. In response, learned counsel for the respondents submitted that to constitute a marriage in the eye of the law, it has first to be

established that the same was a valid marriage. Strong reliance was placed on Bhaurao Shankar Lokhande v. State of Maharashtra in that

context. Reference was also made to Sections 5(i), 11 and 16 of the Hindu Marriage Act, 1955 (for short “the Marriage Actâ€) to

contend that the stipulations of conditions of a valid marriage, the circumstances in which the marriage becomes void and the protection

given to children of void and voidable marriages respectively makes the position clear that wherever the legislature wanted to provide for

contingencies flowing from void or voidable marriages, it has specifically done so. It is latently evident from Section 16 of the Marriage Act.

There is no such indication in Section 498-A IPC. The language used is “husband or relative of the husbandâ€. Marriage is a legal

union of a man and a woman as husband and wife and cannot extend to a woman whose marriage is void and not a valid marriage in the

eye of the law.

The marriages contracted between Hindus are now statutorily made monogamous. A sanctity has been attributed to the first marriage as

being that which was contracted from a sense of duty and not merely for personal gratification. When the fact of celebration of marriage is

established, it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage

have been gone through. As was said as long back as in 1869 “when once you get to this viz. that there was a marriage in fact, there

would be a presumption in favour of there being a marriage in lawâ€. (See Inderun Valungypooly Taver v. Ramaswamy Pandia Talaver,

Moo IA p. 158.) So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until

contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. (See Sastry

Velaider v. Sembecutty following De Thoren v. Attorney General and Piers v. Piers.) Where a marriage is accepted as valid by relations,

friends and others for a long time, it cannot be declared as invalid. In Lokhande case it was observed by this Court: (AIR p. 1565, para 3)

The bare fact that a man and woman live as husband and wife does not at any rate normally give them the status of husband and wife even

though they may hold themselves before the society as husband and wife and the society treats them as husband and wife. These

observations were cited with approval in Surjit Kaur v. Garja Singh. At first blush, it would seem that these observations run counter to the

long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the

views expressed in the earlier cases. In Lokhande case this Court was dealing with a case of prosecution for bigamy. The prosecution had

contended that second marriage was gandharva form of marriage and no ceremonies were necessary and, therefore, did not allege or

prove that any customary ceremonies were performed. In that background, it was held that even in the case of gandharva marriages,

ceremonies were required to be performed. To constitute bigamy under Section 494 IPC, the second marriage had to be a valid marriage

duly solemnized and as it was not so solemnized it was not a marriage at all in the eye of the law and was therefore invalid. The essential

ingredient constituting the offence of bigamy is the “marrying†again during the lifetime of husband or wife in contrast to the

ingredients of Section 498-A which, among other things, envisage subjecting the woman concerned to cruelty. The thrust is mainly on

“marrying†in Section 494 IPC as against subjecting of the woman to cruelty in Section 498-A. Likewise, the thrust of the offence under

Section 304-B is also on “dowry deathâ€. Consequently, the evils sought to be curbed are distinct and separate from the persons

committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons

committing the offence so as to rope in not only those validly married but also anyone who has undergone some or other form of marriage

and thereby assumed for himself the position of husband to live, cohabit and exercise authority as such husband over another woman. As

the prosecution had set up a plea of gandharva marriage and had failed to prove the performance of ceremonies, it was not open to fall

back upon the presumption of a valid marriage. It was further held that there was no such presumption if the man was already married. In

Surjit Singh case the stand was that the marriage was in karewa form. This Court held that under the custom of karewa marriage, the widow

could marry the brother or a relation of the husband. But in that case the man was a stranger. Further, even under that form of marriage

certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference

was made to Lokhande case. As the parties had set up a particular form of marriage which turned out to be invalid due to absence of proof

of having undergone the necessary ceremonies related to such form of marriage, the presumption of long cohabitation could not be

invoked.â€​

From the above judgment of the Hon’ble Apex Court of India, it clearly transpires that there has to be a valid marriage. Simply living with a lady

cannot give a presumption that there is a valid marriage. In the instant case, the entire prosecution witnesses except the complainant have deposed

that marriage has not solemnized as per social customs and rites so much so that the father of the complainant himself admitted that the marriage was

not performed in their house. The statement of the complainant is contradictory even with that of her brother and her father to the extent that her

brother, P.W. â€" 8, stated in his evidence that the marriage of his sister was performed with Rohidas Mahato @ Ruhidas before the Notary Public by

way of an affidavit whereas the complainant deposed that her marriage was performed in the society according to social rites and customs. As a

matter of fact, the entire prosecution witnesses except the complainant have categorically deposed that marriage was not performed as per the social

rites and customs.

In my considered opinion, the affidavit sworn by the petitioner no. 1 could not be considered as a valid document for a valid marriage. It is not a case

of prosecution that the petitioner has convinced the complainant that the affidavit itself constitutes a valid marriage.

In this view of the matter, I am of the considered opinion that since the affidavit cannot be considered as a valid document for a valid marriage and the

marriage has not been performed as per the Hindu rites and customs, the petitioners cannot be convicted for the offence under Section 498A of the

Indian Penal Code. This aspect of the matter has not been considered by the learned trial court as well as by the learned appellate court making both

the orders cryptic.

As a result, the instant revision application is allowed. The judgement dated 31.07.2014 passed by the learned 1st Additional Sessions Judge,

Seraikella-Kharsawan in Criminal Appeal No. 21 of 2010 and the judgment of conviction and order of sentence dated 19.04.2010 passed by the

learned Sub-Divisional Judicial Magistrate, Seraikella in G.R. Case No. 414 of 2004 are, hereby, set aside.

The petitioners shall be discharged from the liability of their bail bonds.

Let the lower court record be send back to the court concerned forthwith.