Smt. Surinder Kaur vs Mohinder Singh and others

S.P. Goyal, J.—Manohar Singh, his mother Smt. Kirpal Kaur and his father Rattan Singh were tried u/s 495 read with section 109, Indian Penal Code (hereinafter referred to as the Code) on a complaint by Smt. Surinder Kaur, appellant, wife of Manohar Singh, respondent, and acquitted by the Additional Sessions Judge, Amritsar, vide judgment dated October 9, 1973. The appeal was admitted to hearing by a Division Bench as it involved an important question of law as to whether a bona fide mistake of fact regarding the previous marriage would be a good defence against the charge u/s 494 of the Code.

According to the allegations in the complaint, Smt. Surrinder Kaur, appellant, was married to Manohar Singh, respondent, on February 8, 1963. They lived together for six/seven years and two daughters were born out of their wedlock. In the year 1970, Harinder Singh, brother of Surrinder Kaur, came to know that Manohar Singh, respondent, was previously married to Smt. Kashmir Kaur which fact he conveyed to the appellant, who then filed the present complaint on August 17, 1971 alleging that Manohar Singh contracted a marriage with her according to Anandkaraj rites having concealed from her the fact of the former marriage. Rattan Singh and Smt. Kirpal Kaur, father and mother of Manohar Singh, respondent, were charged with the abatement of the said offence.

At the trail, to prove the marriage of Smt. Surinder Kaur with Manohar Singh and the concealment of the fact of earlier marriage, the prosecution examined Smt. Surinder Kaur P. W. 1, Surat Singh, P. W. 2, Smt. Parkash Kaur, P. W. 3, and Harinder Singh, P. W. 4. They all deposed that when the marriage was negotiated, the three accused were present and none of them disclosed that Manohar Singh, accused was previously married to Smt. Kashmir Kaur, Harbans Singh P. W. 5 and Kartar Singh Bal, P. W. 6 were examined to prove the earlier marriage of the accused Manohar Singh with Kashmir Kaur. Harbans Singh P. W., stated that he was working as sewak of Sawinder Singh Sadh, the father of Smt. Kashmir Kaur and he performed the Anandkaraj, at the time of the marriage of Manohar Singh with Kashmir Kaur some 14 years back in the year 1959. Kartar Singh Bal, P.W. stated that Smt. Kashmir Kaur was the grand daughter of his wife''s grand father''s brother and that she was married to Manohar Singh in the year 1959 and he had seen them living as husband and wife. He however, admitted in cross-examination that the marriage was not performed in his presence. The prosecution also relied on Exhibits PA, PB and PC, the three letters written by Harinder Singh to Surinder Kaur, his sister and Exhibit PE, a copy of the judgment of this Court dated March 13, 1964, allowing revision petition of Smt. Kashmir Kaur.

The accused, when examined u/s 342, Code of Criminal Procedure, 1898, admitted his marriage with Surinder Kaur, complainant but denied that he was ever married to Kashmir Kaur. He further stated that Smt. Kashmir Kaur had filed a petition u/s 488. Code of Criminal Procedure, against him for maintenance which was dismissed by the learned Magistrate Amritsar on July 11, 1962 and the revision petition filed against that order also failed and that he showed both the orders to Smt. Surinder Kaur and her parents. It was after full satisfaction that the marriage of Smt. Surinder Kaur with him was solemnised. He further stated that at the time of his marriage with Smt. Surinder Kaur, he had no knowledge that Smt. Kashmir Kaur and filed any revision petition in the High Court against the order of the learned Magistrate and the learned Magistrate and the learned Additional Sessions Judge dismissing her petition u/s 488, Code of Criminal Procedure.

The learned Sessions Judge after discussing the evidence and the circumstances proved on the record held that it was hard to believe that Smt. Surinder Kaur and her parents were not in the know of the fact of the earlier marriage of Manohar Singh and, therefore, held that no case of concealment of the earlier marriage had been made out against the accused. The factum of earlier marriage of Manohar Singh with Kashmir Kaur was held to have been proved on the basis of the earlier judgment Exhibit PE, of this Court. The complaint was however dismissed on two grounds, that it is only an aggrieved person who can maintain a complaint u/s 494 of the Code and the complainant being in the know of the earlier marriage could not be sad to be an aggrieved person within the meaning of section 198 Code of Criminal Procedure and that the accused Manohar Singh had bona fide belief on the basis of the two judgments of the learned Magistrate and the learned Sessions Judge referred to above that he was not previously married to Smt. Kashmir Kaur which was a good defence to charge u/s 494 of the Code.

To prove the charge of bigamy u/s 494 of the Code the essential ceremony constituting both the marriages have to be proved. As held in Kanwal Ram and Others Vs. The Himachal Pradesh Admn., even admission of marriage by the accused is no evidence for the purpose of proving adultery or bigamy. As the essential ceremonies of the marriage of Smt. Kashmir Kaur with Manohar Singh have not been proved, the appeal is liable to be dismissed on this ground alone.

The learned Additional Sessions Judge held that the judgement Exhibit PE, of this Court in the earlier proceedings u/s 488, Criminal Procedure Code was final so far as the question of marriage of Smt. Kashmir Kaur with Manohar Singh was concerned We are unable to sustain this view. A perusal of that judgment would show that there was no finding that the essential marriage ceremonies had been performed at the time of marriage of Smt. Kashmir Kaur with Manohar Singh. The learned Magistrate and the learned Additional Sessions Judge had held that no marriage had been proved between them but this finding was reversed by R.P. Khosla, J., as he then was with the observation that in cases u/s 488, Criminal Procedure Code, the strict proof of marriage cannot be insisted upon and that the fact that the couple had been living together as man and wife and there had been treatment as such is enough to lead to the conclusion that the couple had been married. Obviously no finding can be recorded on the basis of this judgment that marriage between Manohar Singh and Kashmir Kaur had taken place after the performance of all the essential ceremonies.

Faced with this situation, Mr. H.S. Gujral, the learned counsel for the appellant, urged that the evidence produced in this case was sufficient to record a finding that the essential ceremonies had been performed. The evidence relied upon consist of the statement of PW 5 Har bans Singh and P.W. 6 Kartar Singh Bal. The evidence of Kartar Singh Bal need hardly be noticed because he admitted in the cross examination that the marriage of Smt. Kashmir Kaur was not performed in his presence. As regards Harbans Singh, no doubt, he deposed that he performed the Anandkaraj ceremony at the time Manohar Singh and Smt Kashmir Kaur were married but it is difficult to place implicit reliance on his statement as it is not difficult to get hold of a person to make such statement. Moreover, he admitted in the cross examination that he did not appear as a witness of Smt. Kashmir Kaur in the proceedings u/s 488, Criminal Procedure Code instituted by her. If he had performed the Anandkaraj ceremony there was no reason why he would not have been examined as a witness by Smt. Kashmir Kaur in that litigation which started only two years after that marriage. He further deposed that he left the service of her father six months after the marriage and was now residing at Sonepat. It remains a mystry as to how the complainant came to know of him and found his whereabouts and the fact that it was he who performed that marriage. This witness also admitted that at the time of Anandkaraj ceremony, the Sarpanch and other residents of the village were present but none of them had been examined. We are, therefore, unable to rely on the statement of this witness and hold that the prosecution has failed to prove that the essential marriage ceremonies were performed to bring about marriage between Manohar Singh and Smt. Kashmir Kaur.

The appeal, as observed earlier, has to be dismissed on the finding recorded above but we propose to deal with the law point also as this case was admitted to the Division Bench for the determination of that point and the parties were also heard at length.

As noticed above, one of the pleas raised by the accused was that he had a bona fide belief that no marriage between him and Smt. Kashmir Kaur had taken place at the time of his marriage with Smt. Surinder Kaur and in support of his contention he relied on the judgments. Exhibits DA and DB. In the petition u/s 488, Code of Criminal Procedure, the learned Magistrate held that marriage between Smt. Kashmir Kaur and Manohar Singh was not proved and this finding was upheld by the learned Additional Sessions Judge vide his judgment, Exhibit DB, dated October 5, 1962. The finding of the learned Additional Sessions Judge was however, reversed by this Court and it was held that the performance of marriage u/s 488, Code of Criminal Procedure, between them stands proved. On these facts, it was urged by the learned counsel for the appellant that the defence of a bona fide mistake was not open to the accused for a charge u/s 494. Reliance for this argument was placed on Narantakath Ayullah v. Parakkal Mammu and four others ILR 1922 Mad. 986, Mussammat Nandi alias Zaib v. The Crown ILR (1929) Lah. 440, Reg v. Sambhu Raghu ILR (1876) I Bom. 397 and the King v. Thomas Wheat (1921) 2 KB 119. In Narantakath''s case the woman''s bona fide belief that the fact of her husband becoming an Ahmediyan made him an apostate and severed her marriage tie, was held to be purely a mistake on question of law. In Mussamat Nandi''s case (supra) the bona fide belief pleaded was that on the change of religion her marriage stood dissolved. Similarly, in Thomas Wheat''s case (supra), the defence put up was that the accused at the time of the alleged ceremony of marriage believed in good faith that he had been divorced from the bond of first marriage whereas, in fact, he had not been divorced. In all these cases, no doubt, it was held that the plea of good faith and absence of mens rea was not open as valid defence against a charge u/s 494 but the defence was based not on a mistake of fact but on a mistake of law and it was held that a mistake on a question of law would not constitute a valid defence.

The learned counsel for the respondents on the other hand, relied on Karim Baksh v. Emperor AIR 1918, Lah. 217(2) and Kochu Muhmmad Kunju Ismail Vs. Mohmmad Kadeja Umma, wherein bona fide belief that the earlier marriage had been validly dissolved was upheld as a good defence. We, however, need not resolve this controversy as in the present case, the defence of the accused is based on a mistake of fact and not of law.

Manohar Singh, accused, pleaded in the proceedings u/s 488, Criminal Procedure Code, that he was never married with Kashmir Kaur and this plea was upheld by the learned Magistrate as well as by the learned Additional Sessions Judge. Whether he was married with Smt. Kashmir Kaur or not was a pure question of fact and his bona fide belief that he was not so married would constitute a valid defence u/s 79 of the Code which provides that nothing is an offence which is done by any person who by reason of mistake of fact and not by reason of mistake of law in good faith believes himself to be justified by law in doing it. That bona fide belief based on a mistake of fact would be good defence u/s 79 of the Code was not even disputed in Narantakath''s case (supra). Similarly, in Thomas Wheat''s case (supra) three exceptions were provided in the Statute relating to the offence of bigamy, the first one being that the person would not be guilty of bigamy when the husband or wife has been continually absent for the space of seven years then last past has not been known by the person accused to be living within that time. The remaining two exceptions came into operation if the parties were divorced or the marriage was declared void. Before the Court reliance was placed on Reg v. Tolson 23 Q.B.D. 168. The Bench observed that Tolson''s case related to the defence under the first exception which was a defence based on bona fide mistake of fact. The defence based on bona fide mistake of fact was therefore, approved even in this case. So far as we are concerned the defence based on a bona fide belief based on a mistake of fact has been expressly recognised in section 79 of the Code noticed above and we need not, therefore, resort to the English decisions for upholding this defence. In the present case, the accused on the basis of the two judgments of the learned Magistrate and the learned Additional Sessions Judge had bona fide belief that no marriage took place between Manohar Singh accused and Smt. Kashmir Kaur and the same, therefore, would constitute a valid defence to charge u/s 494 of the Code.

In the result, this appeal fails and the same is hereby dismissed.

Ajit Singh Bains, J.

I agree.