ORDER
1. This criminal miscellaneous petition has been filed under S. 482 of the Code of Criminal Procedure, 1973, by the third accused in C.C. No. 1417 of 1979 on the file on the IV Metropolitan Magistrate, Saidapet, Madras for calling for the records in that case and quashing the proceedings in so far as they relate to the petitioner. According to the private complaint, the petitioner – a Member of the Board of Revenue, Government of Tamil Nadu is the husband of the respondent – second accused. The first respondent in this petition is the complainant. The second respondent is the first accused in the complaint. The fourth respondent is the fourth accused in the complaint. According to the private complaint, the complainant Ranjini Murugan is the lawfully wedded wife of the first accused M. Murugan they having been married on 10th May, 1957, and they have three daughters and a son. The third accused is the husband of the second accused. In view of the wealth and high social status of the first accused and the complainant, accused 2 and 3 and many other couples known to them were in the habit of making social visits to the house of the complainant and the first accused. The second accused became a member of the Hypnotic Circle, Madras, propagating Hypnotism as an Art and Science of which the first accused is the President. In course of time, illicit intimacy developed between accused 1 and 2 with the consent and connivance of the third accused. The first accused used to visit the house of the accused 2 and 3 at No. 3, Thiruveedhi Amman Koil Street, Madras 28 and he was welcomed and encouraged by the accused 2 and 3 to spend his time in their house. In or about January, 1978, accused 1 to 3 entered into a criminal conspiracy for the first accused marrying the second accused. In order to facilitate the same, the first accused began to pressurise the complainant to give him a divorce. But, when she refused to comply with that demand, he began to pressurise her to give her consent to marry the second accused. The complainant understand that in pursuance of the criminal conspiracy entered into by the accused 1 to 3, the first accused married the second accused in Ranganathaswami Temple, Tiruneermalai, Madras-44 on 26th March, 1978. The first accused was spending most of his time in the company of the second accused from October, 1978 and he has been continuously residing in the house of the accused 2 and 3 where the third accused also continues to live. In order to save embarrassment to accused 1 and 2, the third accused consented to the second accused filing a petition for divorce against him on 17th July, 1978 falsely alleging that the third accused had deserted her since 1967. The third accused admitted that allegation in that proceeding even though it was untrue and both the accused 2 and 3 were living together even at the time of filing of that petition for divorce and a decree for divorce was passed on 19th August, 1978. From the aforesaid facts and circumstances it is clear that the accused 1 to 3 entered into a criminal conspiracy to commit the offence of bigamy and they are liable under Sections 120-B and 494 of the I.P.C., and S. 17 of the Hindu Marriage Act, 1955. It is in these terms that the complainant filed a private complaint for the issue of summons to the accused and prosecuting them for the offence of criminal conspiracy and bigamy.
2. In this petition for quashing the proceedings in the criminal case so far as the petitioner third accused is concerned two points have been raised and they are : (1) that the allegations made in the petition do not constitute an offence punishable under S. 494, I.P.C. and therefore, there could be no criminal conspiracy for the commission of that offence and (2) that admittedly the second accused was the legally wedded wife of the third accused at the time of the alleged second marriage of the first accused with the second accused and therefore there was valid marriage between the accused 1 and 2 which would become invalid in view of Section 17 of the Hindu Marriage Act, 1955, and therefore the alleged marriage between the accused 1 and 2 is not a bigamous marriage. In P. V. Raddy v. State . The High Court dismissed an application under Section 484, Cr.P.C. of 1973 holding that the inherent powers possessed by it under that section can be invoked and exercised only when the facts alleged in the complaint if they are accepted to be correct at their face value, do not make out an offence with which the accused is charged. Their Lordships of the Supreme Court have upheld the view of the High Court observing :-
“It is now well settled that the High Court does not ordinarily interfere at an interlocutory stage of a criminal proceedings pending in a Subordinate Court. Bearing in mind the well recognised principles of law governing the matter and taking into consideration the nature of the impugned order, we think the High Court was right in declining to grant relief to the appellants. It is also not a matter in which we may legitimately interfere in exercise of our extraordinary powers under Art. 136 of the Constitution specially when the case is at its threshold and evidence has still to be adduced as to whether the minerals extracted could or could not be used as major mineral for certain purposes. It must be realised that it is not possible to determine the difficult question of the kind involved in the instant case purely in abstract without relevant evidence bearing on the matter in issue. Accordingly, we dismiss the appeal.”
In the light of that decision, it is necessary to see whether the allegations made in the complaint in the present case do not constitute the offence of bigamy. The alleged conspiracy cannot stand by itself and has to stand or fall with the case of the complainant that the offence of bigamy has been committed by the accused 1 and 2 in the case. In the complain clear allegation is made about the alleged conspiracy between all the three accused, for, it is stated in paragraph 5 that in or about January, 1978, the accused 1 to 3 entered into a criminal conspiracy that the first accused should marry the second accused and commit an illegal act, and in paragraph 6 of the complaint it is alleged that in pursuance of that criminal conspiracy, entered into by the accused 1 to 3, the first accused married the second accused at Sri Ranganathaswami Temple, Tiruneermalai, Madras-44 on 26th March, 1978. The complaint contains allegations as to what happened prior to and after the alleged conspiracy between the accused 1 to 3. About what happened prior to the conspiracy, it is alleged into complaint that the accused 2 and 3 who are husband and wife were in the habit of making social visits to the house of the complainant and the first accused, that the second accused became a Member of the Hypnotic Circle, Madras, of which the first accused is the President, that in the course of time illicit intimacy developed between the accused 1 and 2 with the consent and connivance of the third accused, and that the first accused used to visit the house of the accused 2 and 3 at No. 3, Thiruveethiamman Koil Street, Madras-28, where he was welcomed and encourged by the accused 2 and 3 to spend his time. About what happened after the conspiracy and the alleged marriage between the accused 1 and 2 on 26th February, 1978, what is stated in the complaint is that the first accused was spending most of his time in the company of the second accused from October, 1978 by continuously living in the house where the accused 2 and 3 were living, namely, No. 3, Thiruveethiamman Koil Street, Madras-28 that in order to save embarrassment to the first and the second accused, the third accused consented to the second accused filling a petition for divorce against him on 17th July, 1978 falsely alleging that the third accused had deserted her since 1967, that the third accused admitted that allegation even though it is untrue and both the accused 2 and 3 were living together even at the time of the institution of the petition for divorce, and that a decree for divorce has been passed on 19th August, 1978, When these allegations were brought to the notice of Mr. N. T. Vanamamalai, the learned counsel for the petitioner in this case and it was asked whether it will not be difficult to say, in the face of these allegations that the complaint does not contain allegation from which the offence of criminal conspiracy could be inferred if the necessary evidence is adduced, the learned counsel for the petitioner did not seriously submit that the allegations do not constitute a case of conspiracy, and bigamy provided, the alleged marriage between the accused 1 and 2 is valid in law. I find that the allegations in the complaint would constitute the offences of conspiracy and bigamy provided that the alleged marriage between accused 1 and 2 is valid in law but for S. 17 of the Hindu Marriage Act, 1955.
3. The learned counsel for the petitioner submitted that the alleged marriage between the first accused, the husband of the complainant, and the second accused, who, according to the complaint, was the legally wedded wife of the petitioner herein at the time of the alleged marriage is invalid in law and therefore there is no question of that marriage becoming void by reason of S. 17 of the Hindu Marriage Act, 1955. The learned counsel invited my attention to paragraph 431 of Mullah’s Hindu Law where it is stated that “A woman cannot marry another man while her husband is alive, except where her marriage has been dissolved by divorce.” The learned counsel invited my attention also to paragraphs 34 and 66 at pages 33 and 63 of N. R. Raghavachariar’s Hindu Law Seventh Edition. In paragraph 34 it is stated :-
“Though monogamy is recommended by the text a Hindu can marry any number of wives even during the lifetime of one or more wives, the rules of Hindu Law laying down the conditions for taking a second wife being held as not mandatory but only as directory. But single-husbandedness is the lot prescribed for a woman under Hindu Law which does not countenance polyandry, and hence a second marriage for the woman during the lifetime of her first husband is invalid unless there has previously been a valid divorce in accordance with the custom, if any, of the caste to which the parties belong.”
In paragraph 66 we find the following passage :-
“A review of the authorities on the question of custom sanctioning remarriage of a woman during the lifetime of the first husband leads to the following position, a custom by which a woman can marry again during the lifetime of the first husband without the first marriage being annulled by divorce or in some manner recognised by caste usage as equivalent to divorce, as for instance by abandonment by the first husband, the mere wish of the woman against that of the husband being insufficient for this purpose, is void as an immoral one, because if a wife could leave her husband whenever she pleased and without any forms or justification whatever, the marriage tie to which ordinarily a special sanctity is lent by the Hindu religion and sentiment, will have absolutely no force at all, and the intercourse of the sexes, in a caste in which such a state of society was allowed, would reduce its members to the level of the beasts of the field to the standing disgrace and mortification of a community which had been very justifiably priding itself on its moral civilisation and culture.”
4. The date on which the accused 2 and 3 got married is not mentioned in the complaint, but Mr. N. Natarajan, the learned counsel for the complainant submitted that the marriage was performed on 2nd September, 1960 long after the commencement of the Hindu Marriage Act, 1955. S. 5 of the Hindu Marriage Act lays down that a marriage may be solemnized between any two Hindus, if the conditions mentioned therein are fulfilled one of those conditions is that ‘neither party has spouse living at the time of the marriage.’ S. 11 of that Act lays down that :-
“Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Cls. (i), (iv) and (v) of S. 5.”
The condition specified in Clause (i) of S. 5 of the Act is ‘neither party has a spouse living at the time of the marriage’. S. 17 of the Act lays down that
“any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the I.P.C., shall apply accordingly.”
Section 4 of the Act lays down that :
“Save as otherwise expressly provided in this Act, –
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act :
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.”
But these notions of the General Hindu Law and the provisions of the Hindu Marriage Act with reference to the marriage between two Hindus cannot be made applicable to the facts of the present case so far as the accused 2 and 3 are concerned as there is no allegation in the complaint that they are Hindus and that their marriage was performed in accordance with the Hindu Law and custom. The allegation made in paragraph 9 of the complaint that the accused 1 to 3 are liable under Sections 120-B and 494 of the Indian Penal Code and S. 17 of the Hindu Marriage Act has to be held to relate only to the alleged marriage between the accused 1 and 2 becoming bigamous under the provisions of S. 17 of the Hindu Marriage Act in view of the prior marriage between the complainant and the first accused. Therefore, it is necessary to see whether the allegations made in the complaint with regard to the bigamy do not constitute an offence punishable under S. 494 of the Indian Penal Code which reads :-
“Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of it staking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years., and shall also be liable to fine.”
Exception :- This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within the time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”
5. The learned counsel for the petitioner invited my attention to a number of decisions in support of his contention that in view of the admission in the complaint that on the date of the alleged bigamous marriage of the second accused with the first accused, there was a subsisting marriage between the accused 2 and 3 sand therefore there was no valid marriage at all between the accused 1 and 2 and there is no question of that marriage having become a bigamous marriage in view of S. 17 of the Hindu Marriage Act. The earliest of those decisions is the decision in Reg. v. Karsan Goja, Reg. v. Bai Rupa ((1864) Bom HCR 117 at p. 124) where it has been held that –
“That a custom of the Talapda Koli caste, that a woman should be permitted to leave the husband to whom she has been first married, and to contract a second marriage (natra) with another man in his lifetime and without his consent, was invalid, as being entirely opposed to the spirit of the Hindu Law and that such marriage was “void by reason if its taking place during the life of such husband”, and therefore punishable, as regards the woman, under S. 494 of the Penal Code and that the man with whom the woman so married, having had sexual intercourse with her, was guilty of adultery, under S. 497″.
6. The next decision relied on by the learned counsel for the petitioner is of Walsh, J. in A. Narasimha Ayyangar v. K. Ramayya Chettiar (AIR 1932 Mad 560) where the learned Judge has held :-
“Custom of second marriage during the lifetime of the first husband and without the first marriage being annulled by divorce or in some formal manner recognised by caste usage equivalent to divorce (the mere wish of the woman against that of her husband being insufficient) is an offence under S. 494. Such offence cannot be obliterated by a subsequent divorce from the first husband or by a settlement with him even though such may be the caste usage.”
7. The next decision relied upon by the learned counsel for the petitioner is of a Bench of the Calcutta High Court in Swapna Mukherjee v. Basanta Ranjan where it has been held that :-
“In order that a person may be convicted of an offence of bigamy, under S. 494, the second marriage must be a form of marriage, recognised by law. Otherwise it would be simply an adulterous union and it will not be hit by the provisions of S. 494.”
In that case a person who was a born Christian and who was having a Christian wife living married once again a Hindu woman according to the Hindu rites and it has been held that the second marriage between the Christian and the Hindu woman was a void marriage not because of the existence of the Christian wife of the man but because of the fact that there cannot be a valid form of marriage between an Indian Christian and a Hindu woman celebrated according to the Hindu rites. It has also been held that as namely, that the second marriage must be void by reason of its taking place during the lifetime of the husband or the wife of the first marriage, is not satisfied the Christian husband was entitled to be acquitted of the charge of bigamy under S. 494 of the Indian Penal Code.
8. The next decision relied upon by the learned counsel for the petitioner is that of Sanjeeva Row Nayudu, J. in Satyanarayana v. State of A.P. (1962 Mad LJ Cri 138) : (1962) 27 Cri LJ 644 where the learned Judge has observed that :-
“This object of the person committing bigamy and which is sought to be defeated by S. 494, Penal Code, by declaring it an offence, is not achieved if the second marriage is one which is no marriage at all in the eye of law, or which is otherwise void, in which case it cannot be said that there was a valid marriage, and the meaning of the word ‘marries’ in S. 494 of the Penal Code is not satisfied. There may be many instances where a second marriage may be no marriage at all and in which case there could be no question of bigamy, as, for example, where the parties are so closely related that a marriage between them is void according to their personal laws, or where the person sought to be taken in second marriage is himself or herself not eligible to be taken in marriage; and there may be many other instances, and it is unnecessary to notice all of them in this connection, I am inclined to agree with Mr. Rama Rao when he contends that the second marriage should be something which could be regarded as a marriage in the sense in which marriages are understood and if it is no marriage at all and if it cannot have any validity in law, apart from the fact that by reason of its being a bigamous marriage it would be declared void it cannot be said that the offence of bigamy had been committed.”
“These decisions recognize the principle that a marriage is no marriage at all unless it satisfies the requirements of the law of a valid marriage by which the parties are governed; and if it is not a valid marriage by reason of the fact that the first accused had married the 7th accused who is somebody else’s wife and with whom he could not enter into a lawful marriage, it is no marriage at all, although, as pointed out by the learned Judges of the Calcutta High Court in Swapna Mukherjee v. Basanta Ranjan it may be an adulterous union. Hence, in the instant case, as it is not established that the 7 the accused has been divorced by D.W. 4 and that the marriage between them had been dissolved, any marriage ceremony entered into by the first accused with the 7th accused is no marriage in the eye of law; and it cannot, therefore, be said that the first accused had ‘married’ the 7th accused within the meaning of S. 494, and hence, the offence of bigamy under S. 494, I.P.C., cannot be held to have been committed by reason of the socalled marriage.”
9. The next decision relied upon by the learned counsel for the petitioner is of Ratnavel Pandian, J. in Mrs. Alphonsa v. Paul Sankar (1977 Mad LW (Cri 192) : (1977 Cri LJ NOC 278) (Mad) where the learned Judge after referring to several decisions has observed;
“Now I shall discuss the evidence in the light of the observations made above. Regarding the fulfillment of the first condition that the marriage should be solemnized between two Hindus, we have to see whether the first accused should be construed as a Hindu by reconversion. There is absolutely no evidence on the side of the complainant that the first accused had apostatised Christianity and professed Hinduism by embracing the same even before the second marriage was thought of. On the other hand, it is the specific case of the complainant that till 6th October, 1973 he was professing only Christianity and on the next day, namely 7th October, 1973, he married the second accused in the Kalyanamandapam of Swamimalai Temple. Thus there is no time lag for reconversion to Hiduism, by the first appellant. Similarly, there is no evidence that the first accused has ever observed any Hindu ceremony or followed any spiritual ideas before he entered the temple. In the absence of such unequivocal intention in clear and express term, the first accused, on the evidence available on record in the instant case, cannot be said to have abandoned Christianity and recovered to Hinduism ……
I have no hesitation to hold that the first accused and the second accused entered into form of marriage on 7th October, 1973 in the Kalyanamandapam of Swamimalai Temple. But as I have indicated above, the evidence added on the side of the complainant is not enough to warrant a conclusion that the said marriage was celebrated as per the Hindu rites and also as per the Hindu Marriage Act observing all essential formalities necessary for a valid marriage. So on this point also, the case of the prosecution fails. Therefore, the quitessence of my above discussion is that the alleged second marriage between the first accused and the second accused is not one performed between two Hindus and that the said marriage was not solemnized as per S. 5 of the Hindu Marriage Act as to attract S. 17 of the Act.”
10. The last decision relied upon by the learned counsel for the petitioner is the decision in Gopal Lal v. State of Rajasthan where it has been observed :-
“It may also be noticed that S. 494 second marriage becomes void by virtue of the fact that it had taken place in the lifetime of one of the spouses. Thus, it is, not possible to accede to the contention of Mr. Mulla that merely because the second marriage was void under S. 17 of the Hindu Marriage Act hence S. 494 I.P.C. would not be attracted …. Thus the combined effect of S. 17 of Hindu marriage Act and S. 494 is that when a person contracts a second marriage after the coming into force of the said Act while the first marriage is subsisting he commits the offence of bigamy ….
The word ‘solemnized’ means in connection with a marriage ‘to celebrate the marriage with proper ceremonies and in due form’, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is ‘celebrated or performed with proper ceremonies and in due form’ it cannot be said to be ‘solemnized’. It is therefore essential, for the purpose of S. 17 of the Act that the marriage to which S. 494, I.P.C. applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form.”
11. Mr. N. Natarajan, the learned counsel for the complainant invited my attention to the decision in Gopi Krishna Kasaudhan v. Mt. Jaggo (AIR 1936 PC 198) : 44 Mad LW 84 and some other decisions all of which relate to customary divorce and re-marriage. It is not necessary to refer to those decisions in detail having regard to the fact that no custom has been pleaded in the complaint in this case. It is not the case of the complainant that the marriage between A-2 and A-3 had been dissolved by customary divorce. The complaint makes it clear that the alleged second marriage of the first accused, the legally wedded husband of the complainant with the second accused was during the subsistence of a valid marriage between the second and the third accused. Therefore, there could have been no valid marriage between the second accused on the one hand and the first accused on the other and there is no question of any bigamous marriage between accused 1 and 2, or the third accused entering into any conspiracy with those two accused for the commission of the offence of bigamy. In these circumstances, I agree with the learned counsel for the petitioner and hold that the complaint does not disclose that the third accused has committed any offence and that the proceedings before the learned IV Metropolitan Magistrate in so far as they relate to the third accused-petitioner herein have to be quashed. The criminal miscellaneous petition is accordingly allowed and the criminal proceedings in C.C. No. 1417 of 1979 on the file of the IV Metropolitan Magistrate, Saidapet, Madras, are quashed in so far as they relate to the petitioner-third accused.
12. Petition allowed.