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Judgment
Radhakrishna Rao, J.—A complaint has been lodged by the petitioner in the revision petition with the Station House Officer, Ongole II Town Police Station, against the accused which ultimately resulted in filing a charge-sheet by the Police against the accused-respondent under Sections 493, 494, 496 and 420 IPC before the II Addl. Munsif Magistrate, Ongole. The learned Magistrate after due enquiry and after considering the evidence of the complainant and other witnesses, found that no case has been made out against the accused for the offences with which he was charged.
The case of the complainant who is examined as P.W. 1 is that the accused married her on 24-12-1985 at a Sivalayam, Inamanamellur village, in the presence of P.W. 2, Sunkara Surna Bala, Puripaka Shanmugam and Puripaka Srilakshmi. They were living as husband and wife at the residence of the complainant at Thangalla Khasim Street, Ongole. While so, it is the case of the complainant, that the accused made her to part with her gold on the pretext of obtaining a loan for the purpose of constructing a house. After some time the accused stopped coming to the house and on enquiry she came to know that, the accused was already a married man having wife and children.
The learned Magistrate, on a consideration of the entire evidence on record, came to the conclusion that as the ceremonies for a valid marriage are not said to have been taken place and the wife (P.W.I) failed to make out a case for the offence of bigamy, acquitted the accused.
From the evidence of P.W.I, the following facts have emerged: P.W.I was married to one Alluri Gopalakrishna Murthy. The accused also married another woman long back and got children through her. P.W.I has got knowledge that the accused was a married man even prior to her marriage with him i.e., on 24-12-1985. The marriage between her and Gopalakrishna Murthy was: not dissolved. Similarly the marriage between the accused and his first wife was also not dissolved. Both of them are married persons by the date of the alleged marriage that took place at Sivalayam on 24-12-1985.
Section 11 of the Hindu Marriage Act, 1955 reads as follows:-
"11. Void Marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either parry thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clause (i), (iv) and (v) of Section 5."
Clause (i) of Section 5 imposes a condition that neither party has a spouse living at the time of the marriage. In this case, the marriage that is said to have been taken place on 24-12-1985 is a void marriage since both P.W. 1 and the accused were already married. When the marriage is itself void under Clause (i) of Section 5 of the Hindu Marriage Act, the question of finding about the validity of the marriage and the same is being performed, according to Hindu rites or not is not necessary. In this case, either P.W. 1 or the witnesses examined on her behalf have not stated that the ceremonies required for a valid marriage u/s 7 of the Hindu Marriage Act have been taken place. u/s 7(a) Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and such rites and ceremonies include Saptapadi i.e., the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage becomes complete and binding when the seventh step is taken. In this case, no other custom other than the custom applicable to Hindus, has been proved and on the other hand the witnesses have not spoken to with regard to the rites and ceremonies like Datta Homam and Saptapadi, while performing the marriage on 24-12-1985. The prosecution miserably failed to prove that a valid marriage as per the Hindu custom and ceremonies took place that are required for being considered as a valid marriage. Moreover, it has been proved beyond doubt that the accused was already married by the date of the alleged marriage with P.W. 1. Therefore no offence u/s 494 IPC has been made out because the second marriage itself is a void marriage by virtue of the provisions of Sections 5 and 11 of the Hindu Marriage Act. If the second marriage is proved that it has been validly performed as per the conditions laid down under the Hindu Marriage Act and as per the custom, then only the question of punishing the accused u/s 494 I.P.C. arises. In this case, both P.W.I and the accused are married persons by the time of the alleged marriage on 24-12-1985. Hence, the status of a lady whose marriage was found to be not valid under the provisions of the Hindu Marriage Act can only be treated as ''concubine'' or a ''kept mistress''. Such status cannot give any right for claiming maintenance u/s 125 Cr.P.C. also. In this context Section 125 Cr.P.C. should not be lost sight of by the Court.
It is well settled that the admissions that have been made by the husband in Section 313 Cr.P.C. examination also cannot be taken as a ground for demanding maintenance. But this Court feels that. It is high time to consider for making a provision with regard to the proof of the second marriage. Generally, the second marriages will be performed in secrecy if it is held during the subsistence of the first marriage, without the knowledge of the first wife or her parents or relatives. In such a case, it is difficult for them to prove the second marriage by producing witnesses to speak about the ceremonies that have been taken place at the time of the second marriage. When neither of the parties are prohibited from marrying again as both of them are aware of the first marriage, neither has a right to file a complaint u/s 494 LP.C. as the second marriage itself is void ab initio.
In the result, the criminal appeal and the criminal revision case are dismissed.