State of Karnataka vs Shivaraj and Another

M.F. Saldanha, J.—The State of Karnataka has assailed the correctness of an order of acquittal recorded by the Principal Sessions Judge, Bidar in Sessions Case No. 36/1991 on.5.7.1996, The two accused before the trial Court were Shivaraj who was the husband of accused No. 2 Bhagamma. This Shivaraj had no children through Bhagamma and it is alleged that in the year 1983 he married deceased Vimlabai at Udgir. Apart from the usual allegations that at the time of the marriage a prescribed sum of money and gold ornaments etc. had passed hands, the prosecution alleged that six months after the marriage the two accused started harassing and torturing Vimlabai in order to force her to secure one thola of gold from her parents as additional dowry. Obviously, the parents were not in a position to comply with this demand and the prosecution case is that these pressures just kept on increasing and as a result of the cruelty that was inflicted on Vimlabai that she finally ended her life by jumping into the well at Madnoor on 20.9.1989. Pursuant to a complaint from her parents, the police registered offences Under Sections 498(A) and 304(B) r/w 34, I.P.C. as also Under Sections 3 and 4 of the Dowry Prohibition Act, arrested the accused, completed their investigation and put them up for trial. The learned trial Judge took note of the various inconsistencies or infirmities that are inevitable in cases of this type considering the status of the parities, the time factor etc. and held that the evidence was not good enough to establish the charges and consequently acquitted the accused. The State has assailed the correctness of the order of acquittal through the present appeal. The earlier Division Bench on 17.3.1997 at the stage of admission of this appeal passed the following order :

"On merits, the judgment does require a review. In the course of the arguments, one of the important aspects of law that has hitherto not been decided by the Criminal Courts in this country was referred to, and we are of the view that the Division Bench should interpret Sections 498(A) and 304(B), I.P.C. and lay down as to whether the offence could cover a situation in which the victim has been for all intents and purposes treated as a wife but does not possess" the legal status of a wife only because of the bar of the pre-existing marriage. We need to record that the learned Addl. SPP who drew a parallel from Section 125, Cr.P.C. pointed out that the law takes cognizance of the need and of the fact that protection is afforded even in situations where a marriage is non-existent or even irregular or void, it is for this reason that illegitimate children are also entitled to claim maintenance rights. Similarly, he submits that if in the rural areas, a girl is taken through a ceremony of marriage and for all intents and purposes treated like a wife reasonably thereafter that she will have to be treated as being on par with a lawfully married wife as far as these two sections are concerned. The matter does require some deeper consideration and the appeal is accordingly admitted."

We have reproduced that order because an important and interesting point of law arises in this appeal which falls for determination.

As regards the aforesaid issue namely the question as to whether Section 498(A), I.P.C. as also the relevant provisions of the Dowry Prohibition Act could not made applicable in a case where the aggrieved party may not legally answer to the definition of wife and consequently, whether the penal provisions could be applied against an accused who may not come within the four corners of the legal definition of husband has been dealt with by the learned Addl. SPP at the forefront of his arguments. His submission is that as far as the present case is concerned, that the accused are stopped from canvassing any such argument or seeking any immunity therefrom because at no stage of the trial was the plea put forward questioning the status of Vimlabai as a wife nor had accused No. 1 ever contended even at the stage of this Section 313, Cr.P.C. statement that he was not husband of Vimlabai. Secondly, what the learned Addl. SPP submits is that there is clear-cut evidence from the parents and relations of Vimlabai that accused No. 1 had not merely taken her as his Mistress or paramour but that pursuant to negotiations a full-fledged and regular marriage ceremony was entered into, that accused No. 1 acknowledged Vimlabai as his wife at all times as the evidence indicates and more importantly, that Vimlabai was residing in the house or the matrimonial house, in the capacity of the wife of accused No. 1. The submission canvassed by the learned Counsel is that in all such situations where a prima facie examination of the evidence indicates that for all intents and purposes the relationship was one of husband and wife, that the Court would have to proceed on that basis unless a decree of a competent Court is produced in support of the plea that at the time of the commission of the offence the parties were not husband and wife. The third argument that has been pressed by the learned Counsel for the appellants is that there is only some passing reference to the fact that accused No. 2 was the first wife of accused No. 1 and that she is only alleged to be the first wife though nothing has come on record as to when, where and under what circumstances they contracted the marriage and whether at all that marriage was a valid marriage. Apart from these specific submissions, the learned Counsel submitted that this Court will have to take a broad view of the relevant provisions namely Section 498(A) and 304(B) both of the I.P.C. and the various provisions of the Dowry Prohibition Act all of which were enacted for purposes of preventing and punishing atrocities against married women and his submission is that the only available test which the Court must adopt is the question as to whether the person has gone through a ceremony of marriage. The larger issues as to whether there was a subsisting marriage, that somebody else or a surviving spouse arising out of a marriage which was not dissolved is alive or the question as to whether the present marriage was valid or similarly whether the earlier marriage was valid are all aspects that need not be examined in these proceedings. Learned Counsel submitted that the only correct way to view a situation of this type is to proceed on the assumption that the marriage that has been pleaded is presumed to be valid and subsisting unless and until the contrary position is established through appropriate evidence.

On behalf of the respondent, the basic submission canvassed is that all these provisions use the legal terminology of husband and wife and what Mr. Chouta who represents the respondent-accused submits is that in the present case where the prosecution itself contends that accused No. 2 was the wife of accused No. 1, that she continued to be his wife even after the so called marriage with the deceased Vimlabai, that we are left with a position whereby the Court will have to ignore the so called marriage of 1983 contracted with Vimlabai as no second marriage is permissible under law as far accused No. 1 is concerned during the subsistence of the earlier marriage. Mr. Chouta submits that this would immediately alter the status of accused No. 1 and deceased Vimlabai insofar as they would neither be husband or wife and consequently, none of the penal provisions could be held to be applicable. He has drawn our attention to the definition of "husband" from the Law Lexicon and the definition of "marriage" also from law Lexicon in support of his contention that the status of husband and, wife could only arise pursuant to a valid marriage contract. He has drawn our attention to the concept of definition of nullity of marriage as emanates from the Law Lexicon and the definition of void in relation to contracts and has proceeded to point out to us by virtue of the provisions of Section 11 of the Hindu Marriage Act and the provisions of Section 5 of the said Act which prescribe the essential ingredients of a valid marriage, that the subsistence of the earlier marriage during the life-time of accused No. 2 who was the first wife would render the marriage between accused No. 1 and Vimlabai the deceased as a void marriage. Learned Counsel drew our attention to the decision of the Supreme Court rendered in V Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, , wherein the Supreme Court had occasion to consider a decree that was void ab initio and was consequently recorded as a legal nullity. Learned Counsel submitted that there was no necessity in the present instance to lead any further evidence because on the facts of the present case that accused No. 2 was the living spouse out of an earlier subsisting marriage and that consequently, the Court will have to totally disregard the marriage with Vimlabai as a void marriage.

Our attention was drawn to a decision of the Supreme Court reported in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, wherein a second wife had claimed maintenance under the provisions of Section 125, Cr.P.C. and the defence pleaded was that under the personal law such a second marriage was permissible. The Supreme Court applied the provisions of the Hindu Marriage Act and pointed out that this was the law which held the field after 1955 when it was enacted and that Section 5 lays down that for a lawful marriage the necessary condition that neither party should have a spouse living at the time of the marriage is essential and that the marriage in contravention of this condition, therefore, is null and void. Though the facts of that case and the contentions were slightly different, Mr. Chouta submitted that the principle enunciated by the Court would apply. He further submitted that this being a criminal proceeding, the provisions of the I.P.C.; and the Dowry Prohibition Act must be very strictly construed and that no liberal interpretation that would go against the accused ought to be applied.

We have carefully considered the various legal contentions which have been reproduced by us above and what we need to first point out is that the legislative intent while enacting these provisions was essentially aimed at punishing not only the spouse but all other persons who were parties to the offences that can be categorised as atrocities against married women. It is for that reason that the relations who are participants in these offences are liable to be punished and convicted and the law makes specific provision for it. It is true that the starting point for all of this is the marriage between the parties and it is equally true as pointed out by Mr. Chouta that it must be a legally valid marriage. We do not for a moment dispute the fact that this position applies if there is material on record to indicate that the marriage was void but we have earlier pointed out that in situations where the marriage is challenged or evidence is led to that effect, none of these provisions could be pressed into operation. The real question arises as to what is the position, as in the present case, where there is nothing before the Court on the basis of which the validity of the marriage between the accused and the deceased can be called into question. We have specifically for this reason indicated that even though there is some reference to the fact that accused No. 2 was the first wife of accused No. 1, there is no material on record to indicate as to where and how they became husband and wife whereas on the other hand there is specific evidence before us with regard to marriage between accused No. 1 and the deceased. In other words, what we need to point out is that the Court will presume the marriage to be valid unless otherwise established and Mr. Chouta is not justified in his submission that because of some stray references from the record that this Court must ipso facto record a finding that the marriage between accused No. (1) and Vimlabai was a void marriage. We need to sound a note of caution here insofar as in the case of matrimonial contracts and what follows from them is something very serious and consequently, Courts should not and will not loosely question the validity of a marriage unless that issue is specifically pleaded, contested and established. A marriage cannot be held to be a void marriage merely on a plea of the parties but will have to be so declared by a competent Court and until that is done a Judicial Forum will proceed on the basis that the marriage is presumed to be valid. We cannot lose sight of the provisions of Section 16 of the Hindu Marriage Act and the parallel provisions in almost all other matrimonial statutes which impart a deeming provision as far as legitimacy of children is concerned that even in situations where a marriage is void ab initio or even declared as void by a competent Court that the children will still be deemed to be legitimate as though that marriage was a valid marriage for this limited purpose. It is important for us to emphasise, therefore, that there are situations in which the deeming provisions will be pressed into operation in order to achieve the ends of justice.

It is the duty of the Court to give effect to the legislative intendment which was directed towards punishing husbands who indulge in atrocities against their spouses and in the absence of evidence to the contrary all these provisions will have to be applied on the footing that the marriage is presumed to be a valid one and the parties are presumed to be husband and wife unless the contrary is established. We take note of the fact that unless this view is enforced that it will lead to an atrocious situation with double injustice being done to the victim women who are led through ceremonies of marriage and imparted the status of a wife in situations where they are not aware of possible impediments and if those impediments are upheld to the benefit of the wrong-doer husband; it would lead to the unthinkable and untenable conclusion of allowing a party to take advantage of his own wrong. That is not the scheme of the law and consequently, we uphold the submissions canvassed by the learned Addl. SPP on the point of law that arises and reject the contentions raised on behalf of the respondent-accused while holding that the provisions both of the I.P.C. and the Dowry Prohibition Act would apply in all cases where there is evidence of a marriage between the parties unless and until it is established that the marriage in question was a void marriage. Even as far as the latter position is concerned drawing a parallel with the provisions relating to legitimacy of children in the case of void or voidable marriages, it would, in the interest of justice, perhaps be permissible to construe that even in cases where a marriage was declared void at a point of time after the commission of the offence that the Court would still treat the parties as having deemed to be husband and wife as on the date of commission of the offence.

Applying the aforesaid conclusions, the learned Addl. SPP submitted that there is clear, cut evidence in this case of money and ornaments having passed hands at the time of Vimlabai''s marriage in 1983 that accused No. 1 will have to be convicted u/s 3 of the Dowry Prohibition Act. Similarly, his submission was that there is evidence to support the view that accused No. 1 and accused No. 2 tortured and ill-treated Vimlabai to such a grave extent that she was driven to suicide and that consequently, the charges Under Sections 498(A) and 304(B), I.P.C. to stand established. In this regard, we have very carefully scrutinised the evidence on record and we find that the marriage had taken place a long time back and that there is no conclusive evidence that would justify a conviction on the ground of having demanded or received dowry. This is essentially a question of fact and the evidence on record is relatively weak and vague and consequently, we extend the benefit of doubt to the accused as far as this provision is concerned.

Even as far as the main charges are concerned, what appears extremely strange to us is that the torture and cruelty is alleged to have commenced in the year 1983 i.e. six months after Vimlabai''s marriage and the prosecution alleges that this went on unabated until the year 1989 when she was driven to suicide. The learned SPP submitted that this was a gradual aggravation and a build up which finally pushed Vimlabai to suicide and that consequently, the accused would be liable for having committed the offences punishable Under Sections 498(A) and 304(B) r/w 34, I.P.C, This position has been seriously disputed by the respondent''s learned Counsel Mr. Chouta who drew out attention to the evidence which indicates that there was no other form of cruelty except the demand for one thola of gold and he submits that it is inconceivable that this petty demand could have gone on for six years and that at the end of this long period of time the pressure suddenly pushed Vimlabai to suicide. He has drawn our attention to the vague references on record that Vimlabai had no children and it is his submission that as has happened in many cases that this was the real reason for her having ended her life. The nature of the demand, that fact that it was not one of great expense or difficulty to comply with, the fact that it was not complied with for six years and that there were no other heads or instances or cruelty cast serious doubt in the mind of the Court as to whether at all this allegation was true and secondly, whether it was responsible for Vimlabai ultimately committing suicide. Where the evidence is inconclusive and where there is a reasonable doubt generated, it would be improper to record a conviction and it is for this reason that we refuse interference in this appeal and confirm the order of acquittal recorded in favour of the respondents though the point of law is answered against them.

The appeal accordingly fails on merits and stands dismissed. The bail bonds of the respondents-accused, if any, to stand cancelled.