Urmila vs The State of Uttar Pradesh and Others

S.K. Verma, J.—Opposite Parties Nos. 2,3 and 4 along with others were charged u/s 494, I.P.C. read with Sections 120B/109, I.P.C. by the Munsif Magistrate III, Bareilly and convicted on the ground that opposite party No. 2 Brij Mohan Lal Katiyar had contracted a valid marriage with opposite party No. 3 Smt. Nisha Devi while the revisionist Smt. Urmila Devi, the first wife of Brij Mohan Lal was living. Criminal Appeal No. 132 of 1991 was decided by Sessions Judge, Bareilly vide judgment dated 25-4-1992 through which the appeal was allowed and the opposite parties Nos. 2 to 4 were acquitted.

Whereas the Magistrate had found that the so-called marriage between Smt. Nisha Devi and Brij Mohan Lal was valid, the Sessions Judge, Bareilly found that the alleged second marriage could not be proved because necessary ceremonies had not been performed. The only point to be determined in this revision is as to whether the alleged marriage of Brij Mohan Lal and Smt. Nisha Devi was valid. Learned Sessions Judge found that there was no evidence of ''Saptapdi'' or other ceremonies of marriage because there was evidence of only three and a half ''parikrama'' of the sacred fire according to Arya Samaj customs.

Learned counsel for the revisionist Sri S.K. Srivastava, Advocate has argued that according to Arya Samaj custom three and a half rounds of sacred fire were enough to complete the marriage. In reply Sri A.K. Awasthi, learned counsel opposite parties has argued that unless seven rounds of sacred fire are taken by the bride or the bride-room the ceremonies of marriage are not complete and, therefore, the revision has no force. He also argued that because there is no evidence of the ceremony of Saptpadi having been performed, the marriage cannot be termed as a valid marriage.

Since it was alleged that the marriage was performed according to Arya Samaj customs the Sanskar Vidhi published by Vaidik Press, Ram Kumar Rakshit Lane, Bada Bazar, Calcutta which is an authoritative book on the subject may be considered. According to this book after the ''Parikrama'' of the sacred fire the bride and the bridegroom have to take seven steps, each step being taken after the pronouncement of a specific ''Mantra'' by the bride-groom. It is, therefore, clear that taking rounds of the sacred fire and ''Saptapadi'' are two different things. It appears that there is a confusion in the mind of the people that Saptapadi and seven rounds of the sacred fire are the same thing. In fact, these two are different stages of the ceremonies performed during marriage after the completion of the seventh round of sacred fire or even during the 7th round the ritual of Saptapadi is performed by taking seven steps while pronouncing the Mantras for that purpose.

The Hindu Law as it then was before the advent of the Hindu Marriage Act, 1955 has been discussed in Section 437 of the Hindu Law by D.F. Mulla 12th Edition at page 615 as follows:

(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, namely:

(1) Invocation before the sacred fire; and,

(2) Saptapadi, that is, the taking of seven steps by the bride-groom and the bride jointly before the sacred fire.

The marriage becomes completed when the seventh step is taken; till then it is imperfect and revocable.

(2) A marriage, may be completed by the performance of ceremonies other than those referred to in Sub-section (1), where it is allowed by custom of the caste to which the parties belong.

The legal position after the enforcement of the Hindu Marriage Act is enumerated in Section 7 as follows:

7(1). A Hindu marriage may be solemnised 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 complete and binding when the seventh step is taken.

It would, therefore, be evident that even according to the Hindu Marriage Act, 1955 either the party concerned has to plead customary rites and ceremonies or the two essentials of the ceremonies of marriage have to be completed, namely, (1) invocation before the sacred fire and (2) Saptapadi. In the present case there is no pleading about any customary rites and ceremonies regarding the marriage which has been pleaded as a valid marriage by the revisionist. Naturally, since according to the evidence led by the revisionist the marriage was performed according to Arya Samaj, the essential requirements of such a marriage remain the same, namely, invocation before the sacred fire and the Saptapadi. As already discussed there is only evidence of three and a half rounds before the sacred fire by the bride and the bride-groom but there is no evidence of the ritual of Saptapadi having been performed by the bride and the bride-groom. Unless Saptapadi is performed, the marriage is not complete. The offence u/s 494, I.P.C. is complete only when there is proof of a valid second marriage. Hence the learned Sessions Judge was right when he allowed the appeal because of lack of a valid marriage for want of evidence to the effect that Saptapadi was performed.

In the decision of the Supreme Court in Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh, the apex Court after considering the relevant law on the question came to the conclusion that even an admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery and any 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.

For the reasons stated above, there is no force in this revision. It is dismissed.