Sivakami vs S. Nagalingam and Others

Rengasamy, J.—This appeal is against the order of acquittal passed by the learned 11th Metropolitan Magistrate, Chennai, in C.C. No. 2223 of 1985.

The Appellant herein filed a private complaint against the Respondents herein u/s 494 Indian Penal Code alleging that the first Respondent/her husband married the second Respondent as his second wife while the first marriage with her is subsisting and therefore, they should be dealt with according to law.

In the complaint filed by her, she has stated that the marriage between her and the first Respondent was solemnised according to Hindu Rites on 6.9.70 and the first child was born to them on 15.4.75 and subsequently on 27.12.79, twins were born to them of which one alone is surviving, that the third Respondent, who is the mother of the first Respondent, was ill- treating her and therefore, in a panchayat, the first Respondent agreed to provide separate residence to his mother and that in another panchayat, he agreed to pay maintenance at the rate of Rs. 50/- to her and children It is her allegation that she came to know through her relatives that the first Respondent had contracted a second marriage with the second Respondent on 18.6.1984 in R.C.C. Kalyana Mandapam in Tiruttani with the active assistance of the Respondents 3 to 7, that even though she lodged the complaint in K.K. Nagar Police Station, they failed to take any action and therefore, she had filed the complaint for punishing the Respondents u/s 494 read with Section 34, Indian Penal Code.

Before the learned Metropolitan Magistrate, the Appellant examined herself as P.W.1 and two other witnesses. The Petitioner had repeated in her evidence that she is the legally wedded life of the first Respondent and the first Respondent has married the second Respondent on the date mentioned above and one Jagadeesan, her relative, who attended the second marriage, informed her about the second marriage. P.W.2 is Suits Clerk in Tiruttani Devasthanam and he has deposed that for the marriage between the first Respondent and the second Respondent on 18.6.84, Devasthanam collected Rs. 25/- towards the charges for performing the marriage, for which receipt No. 2132 dated 15.6.84 was issued for payment of the charges and P.W.3, the priest of the temple, had performed the marriage. He also would say that the first Respondent had produced Ex.P.3, Village Administrative Officer''s Certificate, stating that, that was the first marriage between himself and the second Respondent and after the marriage Ex.P.2, marriage certificate also was issued. P.W.3, the priest attached to Tiruttani Subramaniaswami Devasthanam has stated in his evidence, on 18.6.84 at 6.30 A.M., he performed the marriage between accused 1 and 2 according to Hindu Law in Tiruttani R.C.C. Marriage Hall.

The accused were questioned with regard to the incriminating circumstances found against them and the first accused admitted that the marriage between himself and the complainant is true and two children were born to them out of the wedlock but he has not contracted the second marriage. The second accused has stated that she did not know about the marriage between the complainant and the first accused and she has not married the first accused. The third accused would say that she did not attend the marriage and she was not aware of the alleged second marriage between the first accused and the second accused. The fourth Respondent and the sixth Respondent have admitted that they attended the marriage between the first and second accused and also attested the marriage certificate but they were not aware of the first marriage between the complainant and the first accused. The fifth accused denied the attestation of any document or participation in the marriage function for the marriage of the first accused and the second accused. The seventh accused has stated that he did not know the first accused personally but as he came to him with a request for a certificate stating that he intended to celebrate his first marriage in Tiruttani Devasthanam, he issued the certificate Ex.P.3 thinking that he was helping a person, who intended to marry. The accused did not examine any witness on their side.

The learned 11th Metropolitan Magistrate, after considering the evidence, has found that there is nothing to prove that the accused 2 and 4 to 7 were aware of the subsisting marriage between the complainant and the first accused, that there is no evidence to accept that the third accused, mother of the first accused, attended the second marriage and it was performed with her consent and therefore, they are not guilty of the offence alleged. The learned Metropolitan Magistrate has also found that the evidence is lacking in this case to prove that the ceremony, especially the Sapthapathi, was performed in the marriage between the accused 1 and 2, and as there is no proof to hold that there is a valid marriage between the accused 1 and 2, the offence against the first accused also is not proved. On these findings, the learned Metropolitan Magistrate has acquitted all the accused. The complainant has come forward with this appeal challenging these findings of the learned 11th Metropolitan Magistrate, Chennai.

In this appeal, even though a counsel was provided to the Appellant by the Legal Aid Board, the Appellant did not want the services of the counsel and she herself argued the matter in person. Unfortunately, die learned Counsel appearing for the Respondents 1 to 3 was not ready today though the matter was adjourned on several occasions.

The complainant has not argued anything with regard to the findings of the learned Magistrate with regard to the want of knowledge of the first marriage to the accused 2 and 4 to 7. She merely argued that as P.W.3 has stated that he performed the marriage between the accused No. 1 and 2, as per the Hindu law, it has to be accepted that there is a valid marriage between the accused/Respondents 1 and 2.

From the evidence of P.W.1, it appears that the family of the second accused is not closely known to the complainant and though the complainant, in her evidence, would say that all the Respondents aware of the marriage between herself and the first accused in a general form, she has not stated in her evidence under what circumstances, these accused came to know about her marriage with the first accused. It is not the case of the Appellant that the second accused is known to her prior to her marriage and she had knowledge about her marriage with the first accused. The complainant P.W.1 would say in her evidence that the accused 4 and 5 had attested the marriage certificate and therefore they are also liable for the offence u/s 494 Indian Penal Code. But P.W.2, the Devasthanam Suits Clerk would say in his evidence that fifth accused has not attested Ex.P.2 marriage certificate as he knows the signature of fifth accused. The fifth accused in his evidence would say that he has not attested the marriage certificate. Accused 4 to 6 would say that they were not aware of the marriage between the first accused and the complainant. Fifth accused is said to be a close relative of the second accused and he was the person who made all the arrangements in the marriage hall for the marriage between the accused 1 and 2. Anyhow, there is nothing to show that accused 4 to 6, who were strangers to the complainant, were aware of the marriage between herself and the first accused. The seventh accused is the Village Administrative Officer and P.W.1 would admit in her evidence that neither she nor her husband, the first accused, was known to the Village Administrative Officer. The first accused is said to be working in A.V.M. Studios, Madras, as a Production Manager. Seventh accused is the Village Administrative Officer of Tiruttani. Therefore, unless there is acceptable evidence to show that the marriage between the complainant and the first accused was known to seventh accused, it cannot be stated that seventh accused is also liable for the offence u/s 494 Indian Penal Code. In the statement of the seventh accused, he would say that he was not aware of the marriage between the complainant and the first accused and as the first accused came to him stating that he was celebrating his marriage for the first time with the second accused in a temple, without knowing that it is a second marriage to him, he issued the certificate. Therefore, as rightly found by the Court below, absolutely there is no evidence to show that the accused 2, and 4 to 7 had knowledge about the first marriage between the complainant and the first accused.

In so far as the third accused, mother of the first accused, is concerned, P.W.1 would say in her evidence that there was a panchayat in which the first accused has agreed to provide separate residence to his mother, as she was ill-treating the complainant. The third accused, in her statement, would say that she was not aware of the second marriage between the accused 1 and 2. The complainant P.W.1 has not attended the marriage between the accused 1 and 2 on 18.6.84 and therefore, she was not personally aware of the persons who participated in the marriage. Absolutely there is no evidence to accept that the third accused also had participated in the marriage between the accused 1 and 2 or she arranged for this marriage. Therefore, the accused 2 to 7 have been rightly found not guilty of the offence alleged against them and the order of acquittal of these accused is perfectly correct.

In so far as the first accused is concerned, as he admits the valid marriage between himself and the complainant P.W.1 even in the year 1970 and also the birth of the children to them, if there had been a second marriage between himself and the second accused, certainly, the first accused/first Respondent herein is liable to be punished for the offence u/s 494 Indian Penal Code. But the Court below has found that the evidence is lacking to accept that there was a valid marriage between die accused 1 and 2. The learned 11th Metropolitan Magistrate, referring to various decisions, would observe that unless the marriage between the accused 1 and 2 was strictly according to the law governing the parties, there cannot be a valid marriage between them and without a valid marriage between them, the first accused cannot be punished for the offence u/s 494 Indian Penal Code. The learned Magistrate would further observe that no one has spoken about the important ingredient of the valid Hindu Marriage namely Sapthapathi, which is going around the sacred fire, by setting seven steps and though P.W.3 would simply say that he performed the marriage according to Hindu Law, he has not spoken anything about the ceremonies performed in the marriage and therefore, there is no evidence in this case to hold that there is a valid marriage between the accused 1 and 2 and therefore, the first accused also cannot be convicted in the case.

The learned Counsel appearing for the Respondents 4 to 7 Mr. Rajkumar Roberts, referred to a decision of the Apex court in Shantides Berma v. Smt. Kanchan Prava Devi 1992 (1) M.W.N. (CRI.) 84, wherein the Apex Court has held that when there is no specific evidence regarding the performance of the essential rite, namely shaptapadi, in regard to the second marriage, inference cannot be drawn for the performance of such ceremony to conclude the valid marriage and in the absence of evidence for shaptapadi, there cannot be a valid marriage between two Hindus. It is true that Section 7(1) of the Hindu Marriage Act insists for the rites and ceremonies for the Hindu marriage and Sub-section (2) to Section 7 insists for shaptapadi. But so far as Tamil Nadu is concerned, after the introduction of Act 21 of 1967, which relates to validation of certain marriages known as suyamariyathai or seerthirutha marriage, by amending the Hindu Marriage Act, the ceremonies and rites referred to in Hindu Marriage Act do not have any importance for the Hindu Marriage and under the amended Act, Section 7(A) validates a marriage between two Hindus even if the marriage was performed in the presence of relatives and friends by merely declaring in any language that each takes the other to be his wife or her husband or each party exchanges the garlands or puts the ring upon any finger of the other or by tying of the thali. No doubt, there must be evidence for these particulars also. It was argued by Mr. Rajkumar Roberts, counsel for the Respondents 4 to 7, that it is not the evidence of the witnesses examined on the complainant''s side that the marriage between the accused 1 and 2 was celebrated as Suyamariyathai marriage but P.W.3 would say that the marriage was performed as per the Hindu Law and in the light of the evidence of P.W.3, Section 7(A) of the amended Hindu Marriage Act, cannot be invoked in this case. Section 7(A) of the said amendment to Hindu Marriage Act reads specifically that,

When the marriage was between two Hindus whether called suyamariyathai or seerthirutha marriage or by any other name, is valid marriage....

(emphasis supplied)

The parties to this marriage, if they call it as a marriage, it is sufficient to constitute a valid marriage. But as said first, the formalities laid down u/s 7(A) of the amended Act also are required in this case. It can be argued that when in a Kalyana Mandapam, namely R.C.C. Marriage Hall at Thiruttani, the marriage was celebrated and a purohit also, viz., P.W.3. was engaged by the first accused to solemnise the marriage, it could not have been solemnised even without the garlands to the couple and therefore, the requirements of Section 7(A) of the amended Act are fulfilled in this case. But, we cannot presume things in the absence of evidence. But one thing is certain and that is, the marriage was solemnised by P.W.3 purohit and he also would say that the marriage was performed according to Hindu form and Hindu Law

This evidence of P.W.3 was not even challenged by the accused by putting any question to him that what he said is incorrect or that no marriage was solemnised between the accused 1 and 2. As referred to above, the accused 4 and 6, who attended this marriage between accused 1 and 2, have admitted in their statements that the marriage between accused 1 and 2 is true and they also attended the marriage but without knowing that this is a second marriage for the first accused. When these persons would admit the marriage and P.W.3, the purohit, employed in Tiruttani Devasthanam, who performed the marriage, also admits the marriage, for the reason that the first accused had remitted the charges payable to Devasthanam for celebrating marriage in the temple premises, it cannot be stated that no marriage was performed between the accused 1 and 2. But, at the same time, as the Apex Court held that there should be a valid marriage between two Hindus, the evidence is required on the complainant''s side that either the requirements of Section 7(1) of the Hindu Marriage Act or Section 7(A) of the Tamil Nadu Act 21 of 1967, were satisfied for the marriage between the accused 1 and 2. Unfortunately, the priest P.W.3 would simply say that as per the Hindu form and Hindu law, he solemnised the marriage. The Hindu form, which he has mentioned, has different forms according to the traditions of the caste and community and the Hindu Marriage Act also prescribes different forms, which I mentioned above, u/s 7(1) Hindu Marriage Act, 1955 and Section 7(A) of the amended Act. The omission on the part of P.W.3 to speak about the form in which the marriage was performed has created a doubt in favour of the first accused herein.

If the first accused had suggested to P.W.3 that no marriage was solemnised by him, in the cross examination the matter would have been different. But as no question was put to P.W.3, it has to be taken that the version spoken by P.W.3 is perfectly true and that he solemnised the marriage between the accused 1 and 2. If the first accused has married the second accused when his first marriage was subsisting, he cannot easily escape for the reason that the priest, who performed the marriage, has not mentioned the ceremony - or the manner in which die marriage was solemnised. Therefore, I feel that further enquiry is required in this case as to the manner in which this marriage was solemnised. P.W. 1 represented before me that P.W.3 is still available. Therefore, I feel that either through P.W.3 or by anyone, the manner in which the marriage was celebrated, has to be proved by the Appellant/complainant. It cannot be stated that this step taken by this Court is to fill up the lacuna in the prosecution case and going against the interest of the accused person, who has been given the benefit of doubt. But the Court has to render justice to the person who has knocked at the doors of the temple of justice, when a person violates the law by marrying a second wife, when the first marriage is in substance, being unfaithful to the legally wedded life, and the affected party comes to the Court for justice, she cannot be denied the justice on the ground of technicalities, namely that the form of marriage is not proved, to hold it''s validity, though the second marriage between the accused 1 and 2 is proved. Therefore, I feel that in the interest of justice, the matter has to be remitted back to the trial court for further enquiry as to the manner in which the marriage was solemnised. As I have already found that offence against the accused 2 to 7 is not proved, they are entitled for acquittal.

In the result, the appeal against the Respondent/accused 2 to 7 is dismissed. But in so far as the first accused/first Respondent is concerned, the order of acquittal is set aside and the matter is remanded to the trial court for further enquiry u/s 386(a) Code of Criminal Procedure, relating to the manner of the second marriage and the trial court is directed to dispose of this case in the light of the further evidence to be adduced by the complainant. The parties are directed to appear before the trial court on 29.11.96.