PETITIONER: PRIYA BALA GHOSH Vs. RESPONDENT: SURESH CHANDRA GHOSH DATE OF JUDGMENT04/03/1971 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAY, A.N. CITATION: 1971 AIR 1153 1971 SCR (3) 961 1971 SCC (1) 864 CITATOR INFO : R 1979 SC 713 (6) ACT: Penal Code (Act 45 of 1860), s. 494-Proof of second marriage-Admission of second marriage-Relevancy. HEADNOTE: The appellant filed a complaint against her husband the respondent, stating that he took a second wife during the subsistence of the appellant's marriage and that the respondent was therefore guilty of an offence 'under s. 494 I.P.C. The trial court convicted the respondent. In appeal, the Sessions Court found, that in relation to the second marriage, there was no evidence of the performance of Homo and Saptapadi, which were essential rites to be performed for solemn-isation of a marriage according to the law prevailing among the parties; and the respondent was acquitted. In the High Court, in order to prove the second marriage, the appellant sought to rely upon a statement made by the respondent in answer to an earlier complaint under s. 494 I.P.C., filed by-the appellant, wherein the respondent had admitted that he had married a second wife because of the misconduct of the appellant. The High Court, however, held that the statement could not be relied upon for proving that the essential ceremonies had been performed and confirmed the,acquittal of the respondent. In appeal to this Court, HELD (1) The prosecution has. to prove that the alleged second marriage, was a valid marriage, duly performed in accordance with the essential religious rites applicable according to the law and custom of the parties. [967 E] (2) The statement in the earlier proceedings in relation to the complaint under s. 494 I.P.C., could not be relied upon because : (although strictly it was not a confession never theless, if acted upon it would tend to incriminate the respondent (who was in the position of an accused) and therefore he was entitled to be given an opportunity of offering his explanation, if any, in respect of such incriminating statement; (b) such opportunity was not given to the respondent and it was not put to him when he was examined under s. 342 Cr.P.C. and (c) such an admission cannot in law be treated as evidence of the 'second marriage having taken place in a bigamy case. [969 D-H] (3) In the present case, both the Sessions Judge and the High Court have found that there was no evidence that Homo and Saptapadi, which are essential rites for a marriage according to law governing the parties, had been performed when the respondent is said to have married a second wife, and hence the respondent was not guilty. [964 C; 970 B-C] Bhaurao Shankar Lokhande v. State Of Maharashtra, [1965] 2 S.C.R. 837 and Kanwal Ram v, Himachal Pradesh Admn, [1966] 1 S.C.R. 539, followed. 962 JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 275 of
1968.
Appeal by special leave from the judgment and order dated
January 19, 1968 of the Calcutta High Court in Criminal
Appeal No. 393 of 1966.
S. C. Majumdarand R. K. Jain, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Vaidialing, J. In this appeal, by special leave, the
appellant challenges the judgment and order of the, Calcutta
High Court dated January 19, 1968 in Criminal Appeal No. 393
of 1966.
The appellant filed a complaint dated April 11, 1963 against
the respondent, her husband, in the Court of the Magistrate,
1st Class, Alipurduar, alleging that he has committed an
offence under S. 494 of the Indian Penal Code. Briefly
her case was as follows :
The respondent had married the appellant in or about 1948
according to Hindu rites and both of them had lived as
husband and wife, together. But some time before the date
of the complaint the respondent began to ill treat her, with
the result that she had to reside with her mother and
brother. The respondent illegally married one Sandhya Rani
as his second wife on May 3 1, 1962 and they have been
living together as husband and wife. As the second marriage
has taken place during the subsistence of the appellant’s
marriage with the respondent, the second marriage is invalid
in law and the respondent is guilty of an offence under
S.494 of the Indian Penal Code.
The respondent pleaded not guilty of the’ offence alleged
against him. He further pleaded that he has never married
the appellant and that the entire prosecution case is false.
The trial Magistrate after considering the evidence adduced
both regarding the marriage between the appellant and the
respondent as well as the alleged second marriage between-
the respondent and Sandhya Rani, held that the marriage of
the appellant with the respondent was established.
Notwithstanding the scantiness of the evidence regarding the
second marriage, the Trial Magistrate, however, found that
the respondent had admitted the second marriage in his
objections filed to a claim made by the appellant for
maintenance under S. 488 of the Code of Crimi-
963
nal Procedure. In this view the Magistrate held that there
cannot be any doubt that the respondent has married Sandhya
Rani while his first wife, the appellant, was still alive.
the Magistrate further held that as the marriage with the
appellant was subsisting, the second marriage is void under
s. 17 of the Hindu Marria Act, 1955 (Act 25 of 1955),
(hereinafter to be referred as the Act) and, therefore, the
respondent was guilty of the offence under s. 494 of the
Indian. Penal Code. The respondent was sentenced for the
said offence to undergo rigorous imprisonment for one year
and also to pay a fine of Rs. 5001- and in default to suffer
rigorous imprisonment for a further period of three months.
A further direction was given that half the fine, if
realised, was to be paid to the complaint, the appellant.
On appeal by the respondent, the learned Sessions Judge,
Jalpaiguri, by his judgment dated April 30 1966 held that
the evidence does not establish that the essential
ceremonies to constitute a valid marriage have been
performed either in the case of the marriage claimed to have
taken place between the appellant and the- respondent or in
respect of the alleged second marriage with Sandhya Rani.
In this view the learned Sessions Judge set aside the order
of the magistrate convicting the respondent and sentencing
him as mentioned above. The respondent was acquitted of the
offence under s. 494 I.P.C.
On appeal by the appellant, the Calcutta High Court, how-
ever,, differed from the finding of the, learned Sessions
Judge regarding the invalidity of the marriage between the
appellant and the respondent. On the other hand, the High
Court held that the evidence establishes that a valid
marriage, according to Hindu law, by which the parties were
governed, has taken place between the appellant and the
respondent. But regarding the second marriage, the High
Court agreed with the finding of the learned Sessions Judge
that the essential ceremonies’ to constitute a valid
marriage have not been proved to have taken place. In this
view the High Court confirmed the order of acquittal passed
in favour of the respondent and dismissed, the appellant’s
appeal.
Mr. S. C. Majumdar, learned counsel for the appellant, has
raised two contentions before us I that the view of the
High Court that the essential ceremonies to constitute a
valid marriage have not been proved to have taken place
regarding the second. marriage of the respondent with
Sandhya Rani, is erroneous and contrary to the evidence
adduced in the case and (2) In any event in view of the
specific admission made by the respondent in Ex. 2 about the
second marriage and having due regard to the other
surrounding circumstances, it must be held that the respon-
dent is guilty of the offence, under s. 494 I.P.C. The
respondent
964
has not appeared before us and we have to proceed on the
basis of the finding of the learned Sessions Judge, accepted
by the High Court, that the appellant was married to the
respondent and that the marriage was subsisting on the date
of the allied second marriage.
Both the contentions of the learned counsel for the
appellant can be dealt with together. It has been pointed
out by the learned Sessions Judge that both sides agreed
that according to the law prevalent amongst the parties Homo
and Saptapadi were, essential rites to be performed to
constitute a valid marriage. Both sides also agreed before
the Court that there was no specific evidence as to the
performance of Saptapadi and Homo in the case of the alleged
marriage of the respondent with Sandhya Rani. Therefore,
the main question that has to. be considered is, whether the
performance of the above ceremonies and rites have to be
established by evidence specifically before the respondent
could be convicted under s. 494 I.P.C. The findings of the
High Court are that the Priest, P.W. 6, who claims to have
officiated at the marriage of the respondent and Sandhya
Rani has given evidence to the effect that the marriage was
solemnised according to Hindu rites. He has not said
anything more than this. The other evidence adduced has not
been considered to be of any use in this regard. The
further finding of the High Court is that no evidence was
adduced that the Homo and Saptapadi were performed in the
case of the marriage between Sandhya Rani and the respondent
and that it has also not been proved that there was any
custom prevalent amongst the parties that those essential
ceremonies are not necessary for the purpose of
solemnization of the marriage.
According to Mr. Majunidar, when once the priest has given
evidence to the effect that the marriage between the
respondent and Sandhya Rani has been performed, it follows
that all the essential ceremonies that are necessary to
constitute a valid marriage must be presumed to have been
performed. In any event, when there is evidence to show
that the marriage as a fact has taken place, the presumption
is that it has taken place according to law. In this
connection Mr. Majumdar referred us to various English
decisions when on the basis of certain evidence regarding
the taking place of marriage between the, parties a
presumption has been drawn that the marriage must have been
solemnized according to law. In our opinion, it is
unnecessary to refer to those cases cited by the learned
counsel as the position is concluded against the appellant
by the decisions of this Court on both points. Section 5 of
the Act lays down conditions for a Hindu marriage’ It will
be seen that one of the conditions is that referred to in
clause (i), namely, that neither of the parties
96 5
has a spouse living at the time of the marriage., Section 7
dealing with the ceremonies for Hindu marriage is as follows
:
“Section 7-Ceremonies for a Hindu marriage.
(1) A Hindu marriage may be solemnized 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 as red fire), the marriage becomes
a complete and binding when the seventh step
is taken.”
We have ponited out that in the case before us both sides
were agreed that according to the law prevalent amongst them
Homo and saptapadi were essential rites to be performed for
solemnities of the marriage and there is no specific
evidence regarding the performance of these essential rites.
The parties have also not proved that they are governed by
any custom under which these essential ceremonies need not
be performed.
Section 1 1 of the Act deals with void marriages. One of
the conditions, if contravened, which makes a marriage
solemnized after the commencement of the Act, null and void
is if any party thereto have a spouse living at the time of
the marriage.
Section 17 relating to punishment of bigamy is as follows
“Section 17 Punishment of bigamy
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 Indian Penal
Code shall apply accordingly.”
Again in the case before us there is no controversy that the
second marriage is stated to have taken place after the com-
mencement of the Act during the subsistence of the first
marriage. If the second marriage has taken place, it will
be void under the circumstances and s. 494 of the Indian
Penal Code will be attracted. Section 494 of the Indian
Penal Code is as follows
“Section 494-Marrying again during lifetime of husband or
wife
Whoever, having a husband or wife living,
marries in any case in which such marriage is
void by reason of its taking place during the
lift.- of such husband or wife, shall be
punished with imprisonment of either descrip-
966
tion for a term which may extend to seven
years, and shall also be liable to fine.”
In Bhaurao Shankar Lokhande and another v. Slate of Maha-
rashtra and another,(1) the question arose whether in a
prosecution for bigamy under S. 494 I.P.C. it was necessary
to establish that the second marriage had been duly
performed in accordance with the essential religious rites
applicable to the form of marriage gone through. The first
appellant therein had been convicted for an offence under s.
494 I.P.C. for going through a marriage which was void by
reason of its taking place during the life time of the
previous wife. The said appellant contended that it was
‘necessary for the prosecution to establish that the alleged
second marriage had been duly performed in accordance with
the essential religious rites. The State, on the other
hand, contended that for the commission- of the offence
under s. 494 I.P.C. it was not necessary that the second
marriage should be a valid one and a person going through
any form of marriage during the life time of the first wife
would be guilty of the offence. This Court rejected the
contention of the State and observed as follows :
“Prima facie the expression ‘whoever…..
marries’ must mean ‘whoever …. marries
validly’ or whover ….. marries and whose
marriage is a valid one.’ If the marriage is
not a valid one, according to, the law.
applicable to the parties, no question of its
being void by reason of its taking place
during the life time of the husband or wife of
the person marrying arises. If the marriage
is not a valid marriage, it is no marriage in
the eye of law.”
Again in interpreting the word “solemnize” in
S. 17 of the Act, it was stated :
“The word ‘solemnize’ 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 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 Droper ceremonies
and in due form. Merely going through certain
ceremonies with the intention that the parties
be taken to be married. will not make them
ceremonies precribed by law or approved by any
established custom.”
(1) [1965] 2 S.C.R. 837.
96 7
From the above quotations it is clear that if the alleged
second marriage is not a valid one according to 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 attract s. 494 I.P.C. Again
in order to hold that the second marriage has been
solemnized so as to attract s. 17 of the Act, it is
essential that the second marriage should have been
celebrated with proper ceremonies and-in due form.
In the said decision this Court further considered the
question whether it has been established that with respect
to the alleged second marriage the essential ceremonies for
valid marriage have been performed. After referring to the
passage in Mulla’s Hindu Law, 12th Edn. at page 615 dealing
with the essential ceremonies which have to be performed for
a valid marriage, this Court, on the evidence held that the
prosecution had neither established that the essential
ceremonies had been performed nor that the performance of
the essential cermon is had been abrogated by the custom
goveming the community to which the parties belonged In
this view it was held that the prosecution in that case had
failed to establish that the alleged second marriage had
been performed in accordance with the requirement of s. 7 of
the Act. The effect of the decision, in our opinion, is
that the prosecution has to prove tbat the alleged second
marriage had been duly performed in accordance with the
essential religious rites aplicable to the form of marriage
gone through by the parties and that the said marriage must
be a valid one according to law applicable to the parties.
In Kanwwl Ram and others v. The Himachal Pradesh Admn. (1)
ibis Court reiterated the principles, laid down is the
earlier decision referred to above that in aprosecution 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. Another Proposition laid down by this decision,
which answers the second contention of the learned counsel
for the appellant, is that admission of marriage by an
accused is no evidence of marriage for the purrpose of
proving, an offence of bieamv or adulterv. On the evidence
it was held in the said decision that the witnesses have not
Proved that the essential ceremonies had been performed.
It was contended that an admission made by the accused
regarding the second mamaee. is conclusive of the fact of a
second marriage having taken place and that without any
other evidence a conviction could be based on such
admission. This Court rejected the said contention stating
“………………it is clear that in law
such admission is not evidence of the fact
of the second marriage having
968
taken place. In a bigamy case, the second
marriage as a fact, that is to say, the
ceremonies constituting it must be proved :
Empress v. Pitambur Singh(1), Empress v. Kallu
( 2) , Archbold Criminal Pleading Evidence and
Practice (35th ed.) Art. 3796. In Kallu’s case
and in Morries v. Miller(3) it has been held
that admission of marriage by the accused is
not evidence of it for the purpose of proving
marriage in an adultery or bigamy case……..
The decision in R. V. Robinson(4) was relied on in the above
decision on behalf of the prosecution in support of the
proposition that it was not necessary to prove that all the
ceremonies required for the particular form of marriage had
been observed. After a consideration of the facts in the
English decision, quoted above, this Court has expressed the
view that the said decision does not support the said
proposition enunciated on behalf of the prosecution. We are
only adverting to this fact, because the English decision
was again referred lo us by Mr. Majumdar; and it is not
necessary for us to refer to the same over again excepting
to say that the said decision does not advance the case of
the appellant.
As pointed out earlier, this Court in Kanwal Ram’s case has
laid down that an admission is not evidence of the fact that
the second marriage has taken place after the ceremonies
constituting the same have been gone through. As the High
Court has dealt with the question regarding the
admissibility of admission contained in Ex. 2, we will
briefly refer to the nature of the admission that was sought
to be relied on against the respondent by the complainant.
But we make it clear that the discussion regarding this
aspect is only to deal with the contention advanced on
behalf of the appellant and to reject the same. The trial
Magistrate whose- decision was in favour of the appellant
has himself expressed the view that the evidence on the side
of the appellant regarding the alleged second marriage is
very scanty. But that, court held that the respondent has
admitted the second marriage in Ex. 4, which was an
objection filed by the respondent in an application filed by
the appellant for maintenance under S. 488 Cr. P.C. We have
gone through the said objection petition. The respondent
has alleged various acts of misconduct against the appellant
and be has merely stated that he was compelled to marry
again. But no other narticulars have been given in the
said objection mention. We are of the view that no
admission of the second marriage by the respnondent with
Sandhva Rani can be culled out from Ex. 4. In fact the trial
court has based its find ing
1. [1880] I.L.R,. 5 Cal.566.
3. 4 Burr. 2057, 98 E.R. 73,
2. [1882] I.L.R.5 All. 233.
4. [1938] 1 All. E.R. 301,
969
regarding the second marriage almost exclusively on what
it considered to be an admission contained in Ex., 4. As
there, is no such admission, the finding of the magistrate
was clearly erroneous.
Before the High Court, however, we find that the appellant
did not place any reliance on Ex. 4. On the other hand she
relied on an admission stated to have been contained in Ex.
2. The appellant filed a complaint under s. 494 I.P.C.
against the respondent on an earlier occasion on the ground
that the latter had contracted a second marriage with
Sandhya Rani. That complaint was, however, withdrawn as the
particular court had no jurisdiction. In that proceeding
the appellant wanted the said Sandhya Rani to be summoned as
a witness. To that application, the respondent filed an
objection Ex. 2 ‘wherein no doubt, he has admitted that
Sandhya Rani is his wife and that he married her because of
the misconduct of the appellant. The High Court considered
the question whether this Statement of the respondent in Ex.
2 that he has married Sandhya Rani can be treated as an
admission of the fact of the second arriage. The High Court
was of the view that the statement contained in Ex. 2 would
really be a confession statement and declined to act on the
same for two reasons : firstly, that the statement, in Ex. 2
had no,,- been put to the respondent when he was examined
under s. 342 Cr. P.C. so as to give him an opportunity to
explain the statements contained therein; secondly, that
even if the statement contained in Ex. 2 can be taken into
account by themselves they will not be proof of the fact
that all the essential ceremonies necessary for a marriage
have been performed. In our view the reasons given by the
High Court are substantially correct. Though strictly the
statements contained in Ex. 2 may not be a confession,
nevertheless, these statements, if acted upon, tend to
incriminate he respondent. The respondent being in the
nosition of an accused was entitled to be given an
opportunity of offering his explanatiun if any, in resdect
of the incriminating statement contained in Ex. 2. Such an
opportunity has not been admittedly given to the respondent.
His statement in Ex. 2 has not been put to his when be was
examined under s. 342 Cr. P.C:
Further as pointed out by this Court in Kawal Ram’s case,
the admission in Ex. 2 cannot in law be treated as evidence
of the second marriage having taken place in an adultery or
begamy case: and that in such cases it must be proved by the
prosecution that the second marriage as a fact has taken
place after the performance of the essential ceremonies.
Mr. Majumdar relied on the decision of this Court in Bharat
Singh and another vs. Bhagirathi(1) to the effect that the
admis-
1. [1966] 1 S.C.R. 606.
970
sions made by a party are substantive evidence by themselves
in view of ss. 17 and 21 of the Indian Evidence Act, and
that if those admissions have been duly proved they can be
relied on irrespective of the fact whether the party making
them appear in the witness box or not or irrespective of the
fact whether such a party had or had not been confronted
with those admissions. We do not think that the said
decision in any way supports the appellant with regard to
prosecution for bigamy under s. 494 I.P.C.
To conclude, we have already referred to the fact that both
the learned Sessions Judge and the High Court have
categorically found that the Homo and Saptapadi are the
essential rites-for a marriage according to the law
governing the parties and that there is no evidence that
these two essential ceremonies have been performed when the
respondent is stated to have married Sandhya Rani. No
reliance canbe placed on the admissions stated to be
contained in Ex. 2. For all the above reasons the
contentions of Mr. Majumdar have to be rejected.
The appeal fails and is dismissed.
V.P.S. Appedl dismissed. 9 7 1