JUDGMENT
Shamsuddin Ahmed, J.
1. This appeal is directed against the judgment and Order of acquittal passed by the Learned Sessions Judge, Birbhum in Criminal Appeal No. 20 of 1977.
2. Malati Dasi, the appellant herein filed a complaint alleging that she was married with accused Japa according to Hindu rites on 4th Baisakh, 1377 B.S. The marriage was subsisting on the date the complaint was filed. On 18th Agrahyan, 1380 B.S. Japa married Parul Bala Dasi and registered their marriage according to the provisions of the Hindu Marriage Act. Other accused persons abetted the commission of the Office committed by Japa, accordingly, she filed the complaint alleging offences under Section 494 I.P.C.
3. The Learned Sub-Divisional Judicial Magistrate, Rampurhat framed charge under Section 494 I.P.C. against Japa and under Section 494/109 I.P.C. against the other accused persons.
4. The Learned Magistrate considering the evidence on record convicted the accused under Section 494 I.P.C. and sentencing to 2 years and six months R.I. and also to pay a fine of Rs. 2,000 in default, R.I. for six months more. Bhakti Pal accused was also found guilty under Section 494/109 I.P.C. and sentenced to R.I. for one year and to pay a fine of Rs. 2,000 in default R.I. for six months. Other accused persons were acquitted. Against this Order of conviction and sentence the Appeal was preferred and the Learned Sessions Judge disposed of the Appeal by setting aside the judgment passed by the Learned Sub-Divisional Judicial Magistrate. The Appeal was allowed and the Order of sentence and conviction was set aside.
5. The Learned Judge came to the finding that the prosecution in a case under Section 494 I.P.C. was to prove that the second marriage was solemnized in accordance to Hindu rites. Considering the evidence on record the Learned Judge found that the prosecution failed to prove that second marriage was duly solemnized. He noted that there was no evidence clearly stating that Saptapadi and Homa was performed. The Learned Judge was of the view that even the admission of the accused in respect of the second marriage is not sufficient to warrant conviction unless the second marriage is proved to have been solemnized according to the customs binding the accused persons. In this view, the Learned Judge allowed the appeal.
6. Mr. Sengupta submitted that it will appear from the evidence that the marriage has been proved. The offence did not state that items of ceremonies and rites that were undergone in solemnizing the marriage. According to Mr. Sengupta this is not necessary, no cross-examination in this regard was also made by the accused persons. Mr. Sengupta submitted in this case, marriage has been duly proved particularly because of Ext. 2, a certificate granted by the Marriage Registrar under Section 8 of the Hindu Marriage Act. Law attaches to such a certificate of marriage granted by the Marriage Registrar under the provisions of law a mode of proving a valid marriage. The Learned Advocate appearing for the State supported the contentions raised by Mr. Sengupta.
7. Section 494 of the I.P.C. runs thus-“Whoever, having a husband or wife living, marriage in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine.” If a marriage is void by reason of its taking place during the life of such husband or wife the provisions of Section 494 is attracted. Admittedly, in the instant case the parties are governed by Hindu Laws. This takes us to the provision of Section 17 of the Hindu Marriage Act. Section 17 lays down that any marriage between 2 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. This Section speaks 6i solemnization of a marriage after the commencement of this Act. If on the date of such marriage either party to the marriage was living it declares such marriage void. The Section was stated of solemnization of a marriage. The word “solemnize” used in. Section 17 means to celebrate the marriage with proper ceremonies and in due form. 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 that the marriage to which Section 494 I.P.C. applies, because of this section, must be celebrated with proper ceremonies and in form. Merely going through certain ceremonies with the intention the parties be taken to be married will not make them ceremonies prescribed by law or approved by the special custom. In a decision reported in AIR 1971 S.C. 1153 Priyabala Ghosh v. Suresh Chandra Ghosh, the Court held that the alleged second marriage if not a valid one according to the law applicable to the parties, it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attracts Section 494 I.P.C. Again in order to hold that. the second marriage has been solemnized so as to attracts Section 17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form. In this decision the Supreme Court further held that even the admission of a second marriage by the accused is not sufficient to warrant a conviction under Section 494 I.P.C. It must be proved by the prosecution that the performance of the essential ceremonies. In a case reported in AIR 1979 SC 712
, the Court held that the word “solemnized” means in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form. The Court held that it, therefore, follows 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 Section 17 of the Act that the marriage to which Section 494 IPC applies on account of the provisions of this Act should have been celebrated with proper ceremonies and in due form. A Special Bench of this Court, while dealing with a case under the Divorce Act, 1869 observed “that to prove a marriage, even though a bigamous one, there must be some evidence on record to show that some sort of recognised formalities of ceremonies requisite for a valid marriage were performed, even though the marriage so performed be otherwise illegal or invalid for being bigamous, notwithstanding such forms or ceremonies. In this decision the Court has quoted with a approval a passage from Halsbury Third Ed. Vol. 10 page 664 that “a person already married who having the intention to contract a second marriage goes through a form known to and recognized by law as capable of producing a valid marriage is guilty of bigamy although the second marriage would be otherwise invalid in law.” A second marriage must be valid at least in form to sustain a charge of bigamy though the said marriage may be invalid in law for being bigamous.
8. It will appear from what has been stated above and also from various other decisions taken into consideration by the Learned Trial Judge that to sustain a charge under Section 494 it is incumbent upon the prosecution to prove that the second marriage was undergone observing all the ceremonies and formalities of a valid marriage under the Hindu Law. We will now examine how far the prosecution has succeeded in proving the second marriage.
9. In this appeal the prosecution has examined P.W.I the complainant herself. It appears from her evidence that she came to know that the accused has married Parul during the subsistence of her marriage with the accused on 18th Agrahyan, 1380 B.S. according to the Hindu rites. She did not herself see the second marriage to take place. P.W.2 is Benoy Kumar Bhandari. He is a witness to the marriage of the complainant Malati with accused Japahari. P.W.3 Rampada Pal is father of Malati. He stated that he went to Chandipur on 17th Agrahyan, 1380 B.S. He along with his maternal uncle Ranjan Pal went to Tarapit temple to pay homage to goddess Kali on the evening on 13th Agrayan, 1380 B.S. He found there one Satyadhan Panda was arranging a second marriage of Japa Hari. He requested the persons present there not to solemnize1 the marriage. They did not pay heed to his words. According to this witness the mrriage was held in Tarapit temple according to the Hindu rites. He further stated that all the formalities of a Hindu marriage were performed at the time of second marriage. It appears from the cross-examination of this witness that he was not cross-examined as to what ceremonies and rites were undergone in solemnizing the alleged second marriage of Japahari P.W.4 is Bodhan Chakraborty. He is also a witness of marriage between the complaintant and the accused. Mr. Sengupta Learned Advocate appearing for the appellant has submitted that it will appear from the evidence of P.W.3 that he has clearly stated that all the ceremonies of Hindu marriage were undergone in the alleged second marriage between accused Japahari and Malati. Since this witness was not cross-examined as to which specific rites for ceremonies were not performed the defence cannot take advantage by saying that there is no specific evidence with all the ceremonies were undergone. Mr. Sengupta has also stated that in the instant case this second marriage was registered under Section 8 of the Hindu Marriage Act. Ext. 2 is a certificate of marriage issued under the aforesaid provisions of the Hindu Marriage Act. Accordingly, he contends that the prosecution has successfully proved the second marriage of the accused with Malati. In this view, the Learned Advocate submitted that the Order of acquittal passed by the Learned Session Judge is not in accordance with law. We have already indicated that the prosecution is required to prove a complete second marriage after observing all the necessary formalities and rites and in this regard positive evidence has to be adduced by the prosecution. As in a criminal case the ingredients of an offence has to be proved as a fact beyond all reasonable doubt, failure or omission on the part of the defence to cross-examine a witness will not enure to the benefit of the prosecution. The Appellate Court has correctly held that the prosecution did not successfully prove the second marriage.
10. Mr. Sengupta’s second contention that since the marriage has been registered under Section 8 of the Hindu Marriage Act the Certificate Ext. 2 has conclusively proved the second marriage in this case. The provision for registration of a Hindu Marriage was made to provide a separate mode of proving the marriage. We have already indicated that even if the accused admits a second marriage that may not be sufficient to warrant, a conviction under Section 494 I.P.C. It has to be established in evidence that the second marriage during the subsistence of the first marriage has been solemnized as contemplated by law. If admission is insufficient to prove the second marriage only a certificate of marriage issued by the Marriage Registrar under Section 8 of the Hindu Marriage Act cannot sufficiently establish the marriage to warrant a conviction under Section 494 I.P.C. Ext. 2 will indicate that the marriage was registered at the instance of the accused. At best it can be construed as his admission or marriage with Malati. But whether it was a marrige solemnized properly would not be proved by that certificate alone. As we have already stated that there is no positive evidence to the effect that the marriage was solemnized after observing all the ceremonies and rites of a valid Hindu marriage ; we are unable to intervene in this matter. Accordingly, this appeal fails and is dismissed.
Pabitra Kumar Banerjee, J.
11. I agree.