Vijayakumar Isac Gunaseelan vs Rosalind Jothibai Vimala

M. Karpagavinayagam, J.—Vijayakumar Isac Gunaseelan, the petitioner herein, seeking to set aside the conviction u/s 494 I.P.C. and the

sentence to undergo S.I. for 6 months and to pay a fine of Rs.20,000/-, has filed this revision.

Rosalind Jothibai Vimala, the respondent herein, filed a complaint against the petitioner alleging that she is the first wife of the petitioner and that

the petitioner subsequently converted to Islam and got married one Majil Marifa, a muslim lady, and thereby, he committed the offence of bigamy.

After trial, the trial Court found the petitioner guilty for the offence u/s 494 I.P.C. and sentenced him to undergo S.I. for 6 months and to pay a

fine of Rs.20,000/-. In the appeal filed by the petitioner before the appellate Court, the said conviction and sentence was confirmed. However, the

appellate Court ordered payment of Rs.15,000/- as compensation to the respondent/complainant out of the fine amount of Rs.20,000/-.

The petitioner and the respondent being Christians got married on 4.11.1987 at St.John�s Church, Virdhunagar as per Christian religious rites

and customs. Though they lived cordially in the initial period till 1991, thereafter, they used to have frequent quarrel. Therefore, in October, 1993,

the petitioner chased the respondent from the marital home. Thereafter, lawyer�s notices were exchanged between them. On 15.7.1994, the

petitioner issued a publication in newspaper seeking for a bride for him. On noticing this, the respondent sent her relative to advise the petitioner

not to marry again.

Without heeding to her request, the petitioner got converted to Islam and married one Manjil Marifa, a Muslim lady, on 29.6.1995 as per Muslim

religious rites and customs. Hence, the complaint.

According to the respondent/complainant, the petitioner got converted to Islam for the purpose of second marriage and married a Muslim

woman and thereby, he committed bigamy.

According to the petitioner/accused, he being a Muslim could marry four times and as such, he cannot be convicted for the offence u/s 494

I.P.C.

During trial, on behalf of the respondent/ complainant, P.Ws.1 to 3 were examined and Exs.P-1 to P-7 were marked. On behalf of the

petitioner/accused, D.Ws.1 to 5 were examined and Exs.D-1 to D-4 were marked.

As indicated above, both the Courts below would hold that contracting the second marriage, while the first marriage was in subsistence, would

amount to the offence u/s 494 I.P.C. and therefore, the petitioner was liable for conviction for the said offence.

Challenging the judgments of both the Courts below, the learned counsel for the petitioner/husband would stress very much on a single point,

namely, the failure on the part of the respondent/complainant to prove that the second marriage was held according to the Muslim rites.

On the strength of the decisions in Kanwal Ram and Others Vs. The Himachal Pradesh Admn., and Smt. Sarla Mudgal, President, Kalyani

and others Vs. Union of India and others, , it is strenuously contended that mere admission by the accused that he contracted the second marriage

is not enough and the proof of solemnisation of the second marriage in accordance with the essential religious rites applicable to the parties is a

must for conviction for bigamy.

The learned counsel for the petitioner would also cite the decision in MANJIT KAUR v. STATE OF PUNJAB AND OTHERS 1994 (2)

CRIMES 164 in which it is held that for proving the second marriage, the performance of essential ceremonies of Anand Karaj must be

established.

He would also cite the decision in GHULAM KUBRA BIBI v. MOHAMMAD SHAFI AIR 1940 PESH 2 which gives the details of the

types of ceremonies being performed under the Mohammedan law.

Replying to the above contention, the learned counsel for the respondent would also strenuously contend that the second marriage was held in

accordance with the Muslim rites and that the evidence of the defence witnesses also would prove that the second marriage was validly conducted

and as such, Section 494 I.P.C. is attracted. He would cite number of authorities.

Instead of going into the factual aspects, which are reflected in the oral and documentary evidence, it would be better to straightaway go to the

main question.

The specific contention urged by the learned counsel for the petitioner is that there is no proof to show that the petitioner married Manjil

Marifa, a Muslim lady, as second wife in accordance with the Muslim rites.

On going through the evidence of both the prosecution witnesses and the defence witnesses, this contention does not deserve acceptance.

P.W.2 Abdul Kuthous, who is the Muthavali (Secretary) in Jammath Kalamaruthur, would specifically state that on the request of the

petitioner/accused and on the basis of Ex.P-6 certificate to the effect that he got converted into Islam, he performed the marriage of the petitioner

with Manjil Marifa, a Muslim lady.

It is also the evidence of P.W.2 that the said marriage contracted was registered in the marriage register of the Mosque. About this aspect of

evidence, there is no challenge made in the crossexamination.

That apart, the father of the bride was examined as D.W.4. He would also state that the petitioner/accused approached him for marrying her

daughter Manjil Marifa and after obtaining consent from him, the marriage was arranged in the Mosque and the petitioner married his daughter as

per Islamic rites and the marriage had been registered in the marriage register of the Mosque. Under those circumstances, it cannot be contended

that the second marriage was not proved.

In Mohammedan law, the marriage is a contract having as its object the procreation and legalisation of children. It is settled law that the

marriage must be established by direct evidence. If direct proof is not possible it may established by indirect proof (i.e.,) by presumption drawn

from certain facts.

The marriage contracts under Mohammedan Law are often reduced to writing in the form of a ''Kabinnama'', a marriage register. About this

register, both P.W.2 and P.W.4 have spoken to. In the said fact situation, it cannot be contended that the performance of the ceremonies have not

been established.

As laid down in ABDUL RAHIM v. JULAIGA BEEVI 2001 (3) C.T.C. 71 0, the legal essentials of a valid Mohammedan marriage are that

there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the

other. In the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mohammedans. The proposal

and acceptance must both be expressed at one meeting.

In this case, the evidence of P.W.2 and P.W.4 would clearly prove that the said legal essentials have been established. Therefore, I do not see

any infirmity in the factual findings given by both the Courts below.

In result, the Criminal Revision Case is dismissed confirming the conviction and the sentence imposed upon the petitioner by the Court below.

The trial Court is directed to secure the custody of the petitioner/accused in order to undergo the remaining period of sentence.