Smt. Priya Bala Ghosh vs Suresh Chandra Ghosh

Vaidialingam J.

In this appeal, by special leave the Appellant challenges the judgment and order of the Calcutta High Court dated 19th January 1968 in Criminal

Appeal No. 393 of 1966.

The Appellant filed a complaint dated 11th April 1963 against the Respondent, her husband, in the Court of the Magistrate, 1st Class,

Alipurduar, alleging that he has committed an offence u/s 494 of the Indian Penal Code. Briefly her case was as follows:

The Respondent had married the Appellant in or about 1948 according to Hindu rites and both of them had lived as husband and wife together But

some time before the date of the complaint the Respondent began to ill treat her, with the result that she had to reside with her mother and brother.

The Respondent illegally married one Sandhya Rani as his second wife on 31st May 1962 and they have been living together as husband and wife.

As the second marriage has taken place during the subsistence of the Appellant''s marriage with the Respondent, the second marriage is invalid in

law and the Respondent is guilty of an offence u/s 494 of the Indian Penal Code.

The Respondent pleaded not guilty of the offence alleged against him. He further pleaded that he has never married the Appellant and that the

entire prosecution case is false.

The trial Magistrate after considering the evidence adduced both regarding the marriage between the Appellant and the Respondent, as well as

the alleged second marriage between the Respondent and Sandhya Rani, held that the marriage of the Appellant with the Respondent was

established. Notwithstanding the scantiness of the evidence regarding the second marriage, the Trial Magistrate, however, found that the

Respondent had admitted the second marriage in his objections filed to a claim made by the Appellant for maintenance u/s 488 of the Code of

Criminal Procedure. In this view the Magistrate held that there cannot be any doubt that the Respondent has married Sandhya Rani while his first

wife, the Appellant, was still alive. The Magistrate further held that as the marriage with the Appellant was subsisting, the second marriage is void

u/s 17 of the Hindu Marriage Act, 1955 (Act 25 of 1955), (hereinafter to be referred as the Act) and, therefore, the Respondent was guilty of the

offence u/s 494 of the Indian Penal Code. The Respondent was sentenced for the said offence to undergo rigorous imprisonment for one year and

also to pay a fide of Rs. 500/- and in default to suffer rigorous imprisonment for a further period of three months. A further direction was given that

half the fine, if realised, was to be paid to the complainant, the Appellant.

On appeal by the Respondent, the learned Sessions Judge, Jalpaiguri, by his judgment, dated 30th April 1966 held that the evidence does not

establish that the essential ceremonies to constitute a valid marriage have been performed either in the case of the marriage claimed to have taken

place between the Appellant and the Respondent or in respect of the alleged second marriage with Sandhya Rani. In this view, the learned

Sessions Judge set aside the order of the magistrate convicting the Respondent and sentencing him as mentioned above. The Respondent was

acquitted of the offence u/s 494, I.P.C.

On appeal by the Appellant, the Calcutta High Court, however, differed from the finding of the learned Sessions Judge regarding the invalidity of

the marriage between the Appellant and the Respondent On the other hand, the High Court held that the evidence establishes that a valid marriage,

according to Hindu law, by which the parties were governed, has taken place between the Appellant and the Respondent. But regarding the

second marriage ,the High Court agreed with the finding of the learned Sessions Judge that the essential ceremonies to constitute a valid marriage

have not been proved to have taken place. In this view the High Court confirmed the order of acquittal passed in favour of the Respondent and

dismissed the Appellant''s appeal.

Mr. S.C. Majumdar, learned Counsel for the Appellant, has raised two contentions before us: (1) that the view of the High Court that the

essential ceremonies to constitute a valid marriage have not been proved to have taken place regarding the second marriage of the Respondent

with Sandhya Rani is erroneous and contrary to the evidence adduced in the case; and (2) in any event in view of the specific admission made by

the Respondent in Ex. 2 about the second marriage and having due regard to the other surrounding circumstances, it must be held that the

Respondent is guilty of the offence u/s 494, I.P.C. The Respondent has not appeared before us and we have to proceed on the basis of the finding

of the learned Sessions Judge, accepted by the High Court, that the Appellant was married to the Respondent and that the marriage was subsisting

on the date of the alleged second marriage.

Both the contentions of the learned Counsel for the Appellant can be dealt with together. It has been pointed out by the learned Sessions Judge

that both sides agreed that according to the law prevalent amongst the parties Homan and Saptapadi were essential rites to be performed to

constitute a valid marriage. Both sides also agreed before the Court that there was no specific evidence as to the performance of Saptapadi and

Homo in the case of the alleged marriage of the Respondent with Sandhya Rani. Therefore, the main question that has to be considered is whether

the performance of the above ceremonies and rites have to be established by evidence specifically before the Respondent could be convicted u/s

494 I.P.C. The findings of the High Court are that the Priest, P.W. 6, who claims to have officiated at the marriage of the Respondent and

Sandhya Rani has given evidence to the effect that the marriage was solemnised according to Hindu rites. He has not said anything more than this.

The other evidence adduced has not been considered to be of any use in this regard. The further finding of the High Court is that no evidence was

adduced that the Homan and Saptapadi were performed in the case of the marriage between Sandhya Rani and the Respondent and that it has

also not been proved that there was any custom prevalent amongst the parties that these essential ceremonies are not necessary for the purpose of

solemnisation of the marriage.

According to Mr. Majumdar, when once the priest has given evidence to the effect that the marriage between the Respondent and Sandhya

Rani has been performed it follows that all the essential ceremonies that are necessary to constitute a valid marriage must be presumed to have

been performed. In any event, where there is evidence to show that the marriage as a fact has taken place, the presumption is that it has taken

place according to law. In this connection Mr. Majumdar referred us to various English decisions where on the basis of certain evidence regarding

the taking place of marriage between the parties a presumption has been drawn that the marriage must have been solemnized according to law. In

our opinion, it is unnecessary to refer to those cases cited by the learned Counsel as the position is concluded against the Appellant by the

decisions of this Court on both points. S. 3 of the Act lays down conditions for a Hindu marriage. It will be seen that one of the conditions is that

referred to in Clause (1), namely, that neither of the parties has a spouse living at the time of the marriage. Section 7 dealing with the ceremonies

for Hindu marriage is as follows: ''S. 7-Ceremonies for a Hindu marriage

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

(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the

sacred fire), the marriage becomes a complete and binding when the seventh step is taken.

We have pointed out that in the case before us both sides were agreed that according to the law prevalent amongst them, Homa and

Saptapadi were essential rites to be performed for solemnization of the marriage and there is no specific evidence regarding the performance of

these essential rites. The parties have also not proved that they are governed by any custom under which these essential ceremonies need not be

performed.

S. 11 of the Act deals with void marriages. One of the conditions, if contravened, which makes a marriage solemnized after the

commencement of the Act, null and void, is, if any party thereto has a spouse living at the time of the marriage.

S. 17 relating to punishment of bigamy is as follows:

S. 17 Punishment of bigamy:

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 Indian Penal Code shall apply accordingly.

Again in the case before us there is no controversy that the second marriage is stated to have taken place after the commencement of the Act

during the subsistence of the first marriage. If the second marriage has taken place, it will be void under the circumstances and S. 494 of the Indian

Penal Code will be attracted. S. 494 of the Indian Penal Code is as follows:

Section 494 - Marrying again during lifetime of husband or wife-

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 for a term which may extend to seven years, and shall also be liable to

fine.

In Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra and Another, , the question arose whether in a prosecution for bigamy

u/s 494, I.P.C. it was necessary to establish that the second marriage had been duly performed in accordance with the essential religious rites

applicable to the form of marriage gone through. The first Appellant therein had been convicted for an offence u/s 494,I. P. C. for going through a

marriage which was void by reason of its taking place during the life time of the previous wife. The said Appellant contended that it was necessary

for the prosecution to establish that the alleged second marriage had been duly performed in accordance with the essential religious rites. The

State, on the other hand, contended that for the commission of the offence u/s 494 I. P. C it was not necessary that the second marriage should be

a valid one and a person going through any form of marriage during the life time of the first wife would be guilty of the offence. This Court rejected

the contention of the State and observed as follows.

Prima facie the expression ''whoever.... marries'' must mean ''whoever....marries validly'' or ''whoever....marries and whose marriage is a valid

one.'' If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place

during the life time of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law.

Again in interpreting the word ""solemnize"" in S. 17 of the Act it was stated:

The word ''solemnize'' means in connection with a marriage to celebrate the marriage with proper ceremonies and in due form'', according to the

Shorter Oxford Dictionary. It follows, therefore that unless the marriage is ''celebrated or performed with proper ceremonies and due form'' it

cannot be said to be ''solemnised''. It is therefore essential for the purpose of S. 17 of the Act, that the marriage to which S. 494 I.P.C. applies on

account of the provisions of the Act should have been celebrated with proper ceremonies and in due form. Merely going through certain

ceremonies with the intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any

established custom.

From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties, it will not

be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract S. 494 I.P.C. Again in order

to hold that the second marriage has been solemnised so as to attract S. 17 of the Act, it is essential that the second marriage should have been

celebrated with proper ceremonies and in due form.

In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage

the essential ceremonies for a valid marriage have been performed. After referring to the passage in Mulla''s Hindu Law, 12th Edn. at page 615

dealing with the essential ceremonies which have to be performed for a valid marriage this Court, on the evidence, held that the prosecution had

neither established that the essential ceremonies had been performed nor that the performance of the essential ceremonies had been abrogated by

the custom governing the community to which the patties belonged. In this view it was held that the prosecution in that case had failed to establish

that the alleged second marriage had been performed in accordance with the requirement of S. 7 of the Act. The effect of the decision, in our

opinion, is that the prosecution has to prove that the alleged second marriage had been duly performed in accordance with the essential religious

rites applicable to the form of marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to

the parties.

In Kanwal Ram and Others Vs. The Himachal Pradesh Admn., this Court again reiterated the principles laid down in the earlier decision

referred to above that in a prosecution for bigamy the second marriage has to be proved as a fact and it must also be proved that the necessary

ceremonies had been performed .Another proposition laid down by this decision, which answers the second contention of the learned Counsel for

the Appellant, is, that admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery.

On the evidence it was held in the said decision that witnesses have not proved that the essential ceremonies had been performed .

It was contended that an admission made by the accused regarding the second marriage is conclusive of the fact of a second marriage having

taken place and that without any other evidence a conviction could be based on such admission. The Court rejected the said contention stating.

...it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case the second marriage

as a fact, that it to say, the ceremonies constituting it must be proved: Empress v. Pitambur Singh ILR (1880) 5 Cal. 566, Empress v. Callu ILR

1882 All. 233, Archbold Criminal Pleading, Evidence and Practice (35th ed.) Article 3795. In Kallu''s case and in Moris v. Miller 4 Burr'' 2057

98 E.R. 73 it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or

bigamy case....

The decision in R. v. Robinson (1938) 1 All. E. R. 301 was relied on in the above decision on behalf of the prosecution in support of the

proposition that it was not necessary to prove that all the ceremonies required for the particular form of marriage had been observed. After a

consideration of the facts in the English decision, quoted above, this Court has expressed the view that the said decision does not support the

proposition enunciated on behalf of the prosecution. We are only adverting to this fact because the English decision was again referred to us by

Mr. Majumdar: and it is not necessary for us to refer to the same over again excepting to say that the said decision does not advance the case of

the Appellant.

As pointed out earlier, this Court in Kanwal Ram''s case has laid down that an admission is not evidence of the fact that the second marriage

has taken place after the ceremonies constituting the same have been gone through. As the High Court has dealt with the question regarding the

admissibility of admission contained in Ex. 2 we will briefly refer to the nature of the admission that was sought to be relied on against the

Respondent by the complainant. But we make it clear that the discussion regarding this aspect is only to deal with the contention advanced on

behalf of the appellant and to reject the same. The trial Magistrate whose decision was in favour of the Appellant has himself expressed the view

that the evidence on the Side of the Appellant regarding the alleged second marriage is very scanty. But that court held that the Respondent has

admitted the second marriage in Ex. 4. which was an objection filed by the Respondent in an application filed by the Appellant for maintenance u/s

488, Cr. P. C. We have gone through the said objection petition, The Respondent has alleged various acts of misconduct against the Appellant

and he has merely stated that he was compelled to marry again. But no other particulars have been given in the said objection petition. We are of

the view that no admission of the second marriage by the Respondent with Sandhya Rani can be culled out from Ex 4. In fact the trial court has

based its finding regarding the second marriage almost exclusively on what it considered to be an admission contained in Ex 4. As there is no such

admission, the finding of the magistrate was clearly erroneous.

Before the High Court, however, we find that the Appellant did not place any reliance on Ex. 4. On the other hand she relied on an admission

stated to have contained in Ex. 2. The Appellant filed a complaint u/s 494, I. P. C. against the Respondent on an earlier Occasion on the ground

that the latter had contracted a second marriage with Sandhya Rani. That complaint was however withdrawn as the particular court had no

jurisdiction. In that proceeding the Appellant wanted the laid Sandhya Rani to be summoned as a witness. To that application, the Respondent filed

an objection Ex. 2 wherein no doubt, he has admitted that Sandhya Rani is his wife and that he married her because of the misconduct of the

Appellant. The High Court considered the question whether this statement of the Respondent in Ex. 2 that he has married Sandhya Rani can be

treated as an admission of the fact of the second marriage. The High Court was of the view that the statement Contained in Ex. 2 would really be a

confession statement and declined to act on the same for two reasons: firstly, that the statement in Ex. 2 had not been put to the Respondent when

he was examined under S 342, Cr P. C. so as to give him an opportunity to explain the statements contained therein; secondly that even if the

statement contained in Ex. 2 can be taken into account by themselves they will not be proof of the fact that all the essential ceremonies necessary

for a marriage have been performed. In our view the reasons given by the High Court are substantially correct. Though strictly the statements

contained in Ex. 2 may not be a confession, nevertheless, those statements, if acted upon, tend to incriminate the Respondent. The Respondent

being in the position of an accused was entitled to be given an opportunity of offering his explanation, if any, in respect of the incriminating

statement contained in Ex. 2. Such an opportunity has not been admittedly given to the Respondent. His statement in Ex. 2 has not been put to him

when he was examined under S. 342, Cr. P.C.

Further, as pointed out by this Court in Kanwal Ram''s case, the admission in Ex 2 cannot in law be treated as evidence of the second

marriage having taken place, in an adultery or bigamy case, and that in such cases it must be proved by the prosecution that the second marriage as

a fact has taken place after the performance of the essential ceremonies.

Mr. Majumdar relied on the decision of this Court in Bharat Singh and Another Vs. Bhagirathi, to the effect that the admissions made by a

party are substantive evidence by themselves in view of Sections 17 and 21 of the Indian Evidence Act, and that if those admissions have been

duly proved they can be relied on irrespective of the fact whether the party making them appear in the witness box or not or irrespective of the fact

whether such a party had or had not been confronted with those admissions. We do not think that the said decision in any way supports the

Appellant with regard to prosecution for bigamy u/s 494, I. P. C.

To conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the

Hama and Saptapadi are the essential rites for a marriage according to the law governing the parties and that there is no evidence that these two

essential ceremonies have been performed when the Respondent is stated to have married Sandhya Rani. No reliance can be placed on the

admissions stated to be contained in Ex. 2. For all the above reasons the contentions of Mr. Majumdar have to be rejected.

The appeal fails and is dismissed.