Smt. Kerabai vs Ramrao and Others

T.V. Nalawade, J.—The appeal is filed against judgment and order of R.C.C. No. 39/1992, which was pending in the Court of Judicial Magistrate, First Class, Mukhed. In a private complaint filed by appellant for offence punishable u/s 494 r/w. 109 of Indian Penal Code, respondents are acquitted. Both the sides are heard. This Court has gone through original papers.

In short, the facts leading to the institution of the appeal, can be stated as follows:-

The original complainant is the first wife of accused No. 1. Accused No. 2 is second wife of accused No. 1. Other accused are either relatives of the accused No. 1 or accused No. 2. There are allegations against them that they had actively participated in the second marriage of accused No. 1 and accused No. 2, when they knew that accused No. 1 had first wife alive. The role played by each of the accused in the second marriage of accused No. 1 is described in the complaint at the relevant time, the complainant was not cohabiting with the accused No. 1, though their marriage had taken place 16 years prior to the second marriage of accused No. 1.

Parties belong to Gai Gavali community of Hindu religion. It is the case of complainant that as per the customs of their community, the marriage becomes complete, when the customary rites and ceremonies like Shevanti, singing of Mangalashtaka, throwing of Akshata, putting of Mangalsutra by husband on the person of wife, gifting of ornament Jodve by husband to wife and gifting of Sari take place. It is the case of complainant that the second marriage was solemnized on 22.2.1992 and this marriage was attended by brother of complainant Ananda and uncles of complainant Kerba and Jaiwantrao.

If the complaint is read carefully, it can be said that vague contentions with regard to the customary rites and ceremonies, which were followed during first marriage, are made. It is only contended that the marriage was solemnized as per the customs of community. In respect of second marriage, allegations are made that marriage was solemnized in the presence of witnesses examined by the prosecution and the incident was informed by the witnesses to the complainant. At para 10, there is contention about the customary rites and ceremonies for solemnization of marriage, but in the complaint, there is no specific contention (in para No. 9) that all these customary rites and ceremonies were followed during the second marriage.

The evidence of Keraba (PW 1) shows that in the second marriage, Bashings were tied on the heads of accused Nos. 1 and 2, customary gifts were given to relatives of accused No. 2 and the gifts are known as "Aher" and the function is known as "Shevanti Poojan". He has given evidence that from the head of accused No. 2, one Bashing was removed and it was given to accused No. 18, sister of accused Nos. 2 and this sister tied Bashing on the head of accused No. 1. He has given evidence about using of Haldi, Patal (Sari). According to him, after the aforesaid ceremonies, Antarpath was held between accused Nos. 1 and 2 and then there was singing of Mangalashtaka. He has deposed that after throwing Akshatas on the persons of accused Nos. 1 and 2, they put garlands on the neck of each other and then ornament like Mangalsutra and Jodve were handed over by accused No. 1 to accused No. 12. These ornaments were put on the person of accused No. 2 by accused No. 1. As against these ceremonies, Anandrao (PW 2) has given evidence that Aher function was performed first and then Bashing function was performed and then the bride and bridegroom were made to stand on the stools. The curtain like Antarpath was held between them. Akshatas were thrown. There was singing of Mangalashtaka and this way marriage ceremonies were celebrated and there was offering of Mangalsutra. This evidence is very vague. The trial Court has rightly observed that there is no consistency in the evidence of these two witnesses.

The evidence of complainant shows that she has not uttered word about the ceremonies which were followed during her marriage with accused No. 1. The witnesses are interested witnesses and the aforesaid evidence is not sufficient and probable to prove any custom and ceremonies followed in their community. Advocate for appellant placed reliance on the case reported as S. Nagalingam Vs. Sivagami, . It is observed by the Apex Court that if as per the community customs, Saptapadi is not essential, the marriage does not became invalid, if other customs and rites followed in the community are followed for solemnization of the marriage. There cannot be any dispute over this proposition. Advocate for respondent placed reliance on the case reported as Santi Deb Berma Vs. Smt. Kanchan Prava Devi, . In this case, the Apex Court has laid down that to prove the offence punishable u/s 494 of I.P.C., it is necessary to prove that as per the customs of community Saptapadi was not necessary for solemnization of the marriage. In the case reported as D. Vijayalakshmi Vs. D. Sanjeeva Reddy, , the Apex Court has laid down that first and second marriage must be proved in accordance with the legal requirements, caste, customs of particular caste. It is further held that absence of proof of solemnization of any one of the marriage would defeat charge u/s 494 of I.P.C. Reliance was placed on two other cases reported as Dr. Surajmani Stella Kujur Vs. Durga Charan Hansdah and Another, and Snehalata Kailash Ingale and Others Vs. Kailash Rajaramji Ingale, . The observations made by the Apex Court and the High Court in the aforesaid cases show that the evidence given by the complainant and her witnesses is short for proving the offence of bigamy. Thus, interference is not possible in the judgment delivered by the Trial Court and the appeal stands dismissed.