Sarojini vs Doraisami Chettiar and Others

K.N. Mudaliyar J.

This is an appeal filed by Sarojini, P.W.1, against the acquittal of seven accused (A-1 to A-7) for offences under S. 494 I.P.C (A-1 only) and

under S. 494 read with S. 109,I.P.C. (A.2 to A.7 only). Sarojini is the complainant who is residing in Udumalpet. According to her evidence A.1

is her husband. He married her in 1963 in the month of Avani on a Wednesday in Vinayagar Temple in Kettaimedu in Udumalpet. She is now aged

At the time of her marriage her age must have been 17 or 18. Her husband, the first accused respondent, arranged for her marriage and

married her in the temple between 5 a.m. and 6 a.m. on that Wednesday. The parents of the complainant, Sarojini and the 1st accused respondent

did not attend the marriage. She went to the temple as a result of arrangement made by her hasband. He married bar in the temple without the

knowledge of their parents. He married her according to the rites and customs of their community. Chinna Chettiar (not called) and Govindarajulu,

P.W.2 attended the marriage between the first accused and the complainant on the southern side of the temple. They worshipped the Pillayar made

of turmeric. A.1 brought a thali. After worshipping the Pillayar, A-1 tied the thali round the neck of Sarojini. One Shanmughasundara Asari, P.W.3

made the thali. He came to the temple and gave the thali to A.1, A.1 tied it round her neck after it was given to the priest and after the priest

performing agni and homam. The thali was attached to the yellow strings and tied round her neck by A.1. Then the bridal couple exchanged

garlands and they west round the temple. They prostrated before the elders present there. Thereafter they went to Coimbatore. A.1, Sarojini, the

complainant, P.W.2 and Chinnan Chettiyar (not examined) went to the Sub-Registrar''s Office, Coimbatore. A document was registered. That is

an agreement to live as husband and wife. The first accused arranged for this also. The script of the document was brought by the first accused

himself. The said document was read ever to the complainant-appellant, and she and the first accused signed it. Two witnesses, Chinnan Chettiyar

and P.W.2, Govindaraju attested the document, the Sub-Registrar registered the document Ex.P.1 dated 19th June 1963 on its presentation. The

original of Ex.P.1 is with A.1. A copy of the original is the Ex.P.1. The married couple returned to Udumalpet and were residing in the house of

one Kandasami Gounder called Thottakkara Gounder. They lived there for nine days. She states is her evidence that they were living as hasband

and wife all those nine days. The first accused told her that his parents were abusing him for his marriage with her. He left her in her mother''s house

and went away. He did not come back and take his wife thereafter. Then A-1 sent notice Ex.P.2 dated 29th June 1963 through his counsel, The

appellant sent a reply notice Ex. P. 3 dated July 1963 through her vakil. The acknowledgment of the receipt of Ex. P. 3 is proved by Ex. P. 4 and

P. 5 which indicate the date of delivery as 9th July 1963. Then there was a panchayat but the first accused did not take her back. She sent another

notice on 29th November 1967 through her vakil. The first accused replied in Ex. P.7. It is interesting to notice an averment in Ex. P. 7 that the

first marriage took place now itself, that is, on 3rd December 1967 last. In the complaint of P.W. 1 the allegation was that the first accused married

the fifth accused on 9th February 1968 at Udumalpet. In the statement by the first accused under S. 342 he admitted that he married Kamalam, A-

5 on 9th February, 1968, She states that she did not give any consent of his second marriage. She describes the inter se relationship between A-1

and the other accused.

P.W. 2 states that A-1 took him for the marriage. He was a co-worker in the same Mills. A-1 and P.W. 2 are friends also. The marriage

between A-1 and P.W. 1 took place in the morning. One Asari came and gave the thali. The priest performed homam according to the eastern

and A-1 tied the thali round the neck of P.W. 1. Then both went around inside the temple. Then was a gathering of 7 or 8 persons there P.W.2

speaks about their journey Coimbatore and the registration of Ex.P-1 attested by him, P.W. 3 states that he attended the marriage. He went there

to give the mangalyam, minji and kaluruttu, ring of the finger of the leg. A-1 ordered for the making of the above jewels and mangalyam also. After

making them P.W. 3 took them to the temple and gave them to A.1. At the time of the marriage there was homam, that is, sacred fire. There was

one Iyer who lit the homam and the bride and bridegroom were seated there. P.W. 3 was asked to fit the minji which he did. Then he fixed the

kaluruttu to the bride. The bridegroom tied the thali round the neck of P.W. 1 then they went round the temple. P.W. 3 returned after taking his

charges. He owns 20 houses of his own both in his name and in the name of his father.

P.W. 4, Guruswami Naidu speaks about the questioning of A.1 and A-2 in panchayat. A-1 and A-2 stated that they would take P.W. 1 back

in two or three months, as the mother of A-1 could not be convinced. But A-1 did not take her back as promised. P.W. 5, Dakshina Murthy

Chettiyar is related to P.W. 1. He corroborates the testimony of P.W. 4. P.W. 6 speaks about the joint residence of the first accused and P.W. 1

in his house for nine days.

This is the basic outline of the prosecution case sought to be proved by the complainant, Sarojini (P.W. 1). The plea of the first accused in his

statement under S. 342, Crl. P.C. is that he did not marry P.W. 1 and that he was received and an agreement of marriage was get executed and

registered. He admits that he had married Kamalam, A-5. His further case is that all the prosecution with cases are deposing falsely. The learned

trial Magistrate held that there is no foundation for the marriage of the first accused and the appellant and that no marriage took place at all on 19th

June, 1963.

Two questions arise for determination in this case. (1) Whether the marriage of the appellant and the first accused is proved by the evidence on

record; and (2) Whether there is proper proof of the marriage of the first accused with the 5th accused, (although it was admitted by the first

accused that he married A-5).

Before I consider the price features of the evidence produced by the prosecution, I would like to set down the material portion of S. 7-A of the

Hindu Marriage Act, 1955 (as amended by Madras Act 21 of 1967), in its application to the state of Madras;

S. 7. A. Special provision regarding suyamariyathai and Seerthiruttha marriages; This section shall apply to say marriage between two Hindus,

whether called suyamariyathai marriage or seerthirutha marriage or by any other name, solemnised in the presence of relatives, friends, or other

persons-

(a) . . .

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

(c) by the tying of the thali:

(2) (a) . . .

(b) Not withstanding anything contained in S. 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force

immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before

such commencement or in any judgment, decree or order of any court, but subject to Sub-S(3) marriages to which this section applies solemnised

at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnisation of each such marriage,

respectively, good and valid in law.

(3) Nothing contained in this section shall be deemed to-(a) . . .(b) . . .(c) render valid a marriage between any two Hindus solemnised at any time

before such commencement, if such marriage was invalid at that time on any ground other than that M was not solemnised in accordance with the

customary rites and ceremonies of either party thereto.

I am of the view that on consideration of all the facts proved by the complainant the provisions of S. v-A (1) (b) and (c) (2) (b) and (3) (e) are

applicable. The learned trial Magistrate did not advert to the provisions of the Madras Ate 21 of 1967. The law is well settled in a eaten of

decisions that in a criminal charge of bigamy the validity of the first marriage must be proved by the prosecution-vide. Archbold Criminal Pleading,

Evidence and Practice, 27th Eda. Page 3778. Paragraph 3781 reads as follows: ""The second marriage is not bigameas unless the first marriage

was valid; and the validity of the first marriage must be proved by the prosecution.

In Morris v. Miller 1767 ER 98 page 74, Lord Mansfield and Sir Fletcher Norten held that in promises for bigamy, a marriage in fact must be

proved. In Empress v. Pitambur Singh 5 Cal, 566 at 568 speaking for the Full Bench, Garth, C. j. held that ""the provisions of S. 50 of the

Evidence Act show that where the marriage is an ingredient in the offence, as in bigamy, adultery, and the entering of married women, the fact of

the marriage must be strictly proved in the regular way.

In the light of these principles of law, let me examine the sufficiency of the evidence in regard to the affirmative proof of the marriage of the

appellant with the first respondent (first accused). According to their evidence of P. Ws. 1 to 3, the marriage of the first accused with P.W. 1 took

place in the Udumalpet Vinayagar temple on the morning of 19th June, 1963 in the presence of 7 or 8 persons Including P. Ws. 2 and 3. No

doubt, the marriage is denied by the first accused. The prosecution relies on the registered document between P.W. 1 and the first accused to live

as husband and wife from 19th June, 1963 (Ex. P-1). According to their evidence the marriage also took place on the same day in the temple at

Udumalpet. I am unable to see how the factum of the marriage could be rendered false and nonexistent merely by reason of the omission of the

performance of the marriage in Ex.P.1. In my view, to insist on such an averment in Ex.P.1 is laying emphasis on an unnecessary Incorporation of

an allegation about the marriage in Ex.P.1, which is wholly uncalled for.

Ex.P.1 is extracted below;

Agreement of marriage jointly entered into on the 19th June 1963 between (1) Duraiswami, son of Muthuswami Chettiyar, aged 24 years,

employed in the Venkateswara Mills and residing at Kankampalayam Village, Udumalpet taluk and (2) Sarojini, daughter of Thirumalaisami

Chettiar, aged 20 years comfortable means of livelihood and residing at Mariappa Asari line, South of the railway station, Udumalpet town is as

follows:

Because we have been on friendly terms for the past same months and as we love each other, from this day onwards we shall be husband and wife

and run a family life. On any account, we shall not be separated from each other. If we, so separate, it shall not be valid. The properties shall

belong to our heirs absolutely as per the law of the land. To this effect, is this deed of agreement of marriage entered late with our consent. The

execution of this deed of agreement was completed at Coimbatore.

The learned trial Magistrate erred in placing a very wrong construction on the wards In Ex.P.1. ""These words mean only that both A-1 and

P.W. 1 were on affectionate and Intimate terms with each other because of their illicit Intimacy during the past few months and that they therefore

decided from that day onwards to live as husband and wife and nothing more"". The words underlined by me cannot be called out from the

document, Ex.P.1. Where is absolutely no ground for the learned trial magistrate to place such a construction on the averments in Ex. P. 1. In my

view such a wholly misplaced importation of the words ""illicit intimacy"" is a figment of the imagination of the learned Magistrate and is wholly

unwarranted. Such an uncharitable construction casts unmerited and injurious reflection on the character of the appellant prior to her marriage with

the first accused Ex.P.1 does not give room for such a construction as the learned Magistrate sought to place on it. I am unable to see any

concubinage in the document Ex. P. 1. I accept the evidence of P.W. 6 that both the first accused and the appellant led a marital life for nine days

in the premises let out by him. It emerges clearly from the evidence that only after the marriage that was objected to by the parents of the first

accused, he thought of sending a notice to P.W. 1. Even the learned Magistrate states that his parents probably never allowed him to bring her

back to their house. In this notice Ex. P. 2, A.1 characterises the agreement as highly immoral, Illegal and opposed to the public policy. He

mentions about his weak moments when the appellant allowed him to enter into this agreement (Ex. P. 1). Ex. P. 2 notice treats the appellant to be

his concubine by virtue of the registered agreement on 19th June 1963. He even states that it was the appellant who persuaded him to enter into

that agreement and he repudiates conferment of any legal status in a legal marriage on the appellant. It is incomprehensible how a young girl of 17

could have persuaded the first accused to enter into this agreement. In my view, the first accused has made wholly irresponsible allegations against

his wife evidently for the purpose of disowning her as his wife particularly in the wake of the probable protests from his parents. This conduct on

the part of the first accused is totally unfair and unachievrous and I have so hesitation in characterizing his After coming to know that the to marry a

second wife, P.W.1 after the notice Rs. P. 6 dated 29th November 1967. It is been that she has not asked for maintainance form him between 6th

July 1963 to 29th November 1967. But the first that she refrained from being the first second respondent for maintenance deed into reader not

married with him. In the complaint that comes that the marriage between them on 29th june 1963 at Udamalpet was performed proceeding to the

Hindu customs and caste custom. In her sworn statement, also she states that the marriage between her and Doraiswami Chettiar (A-1) was as per

the custom of chettiar caste and that it took place at Vinayagar temple, Udumalpet. I believe that the evidence of P.W.4 and 5 in regard to the

panchayat held by them and questioning the second about dishonest in the wake of the caste marriage between him and the complainant sent

P.W.1.

P.W.1, Sarojini gives a complete description in her evidence about the marriage performed during her marriage. She states that she was to the

yellow string and the first second tied it to her neck. She sates that they exchanged garland and went round the temple. I believe this married per of

the evidence as performed bye the custom of P. Ws.2 and 3. On the temple duration of the stage and object of the per village of the Madras Act

21 of 1967, I verify there the provision of s, 7. a(1)(b) and (a), (2) and 3(a) of the Hindu Marriage Act, 1993 can be applied to the facts of the

cases and

I held that the marriage performed at the. . . to by P.ws 1 to 3 would be part and the is law

In view of the retress statute of the provision i believe undertake support from the basis of in regard to the second question, i here need that the

claim asked admitted.