IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 CRL.A.No. 888 of 2003(B) -------------------------------- CRA.33/2000 of ADDL. SESSIONS COURT (ADHOC I), THODUPUZHA .......................................... APPELLANT(S): COMPLAINANT ---------------------------------------------- R.SREELATHA OF LAKSHMI VILASAM, CHANNANICKADU, NOW RESIDING AT KARUVACKAL, NEDUMKUNAM, KOTTAYAM DISTRICT BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT(S): APPELLANT ACCUSED AND STATE ---------------------------------------------------------------------------- 1. RAJAGOPALN NAIR S/O. NARAYANAN NAIR, NARAYANAVILASAM, THEERTHAPADUPURAM P.O., VAZHOOR, KOTTAYAM MURI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.RAJEEV V.KURUP FOR R1 PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 888 OF 2003 = = = = = = = = = = = = = = = Dated this the 3rd day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Addl. Sessions Judge, Adhoc-I, Thodupuzha in Crl.A.33/00. The said appeal was filed against the conviction and sentence passed by the Judicial First Class Magistrate-II, Thodupuzha in C.C.334/97. It was a case filed by the wife against her husband and 5 others u/Ss.201, 419 and 494 IPC. The trial court found the first accused guilty u/s 494 IPC and S.419 IPC and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- u/s 494 IPC and to pay a fine of Rs.1,000/- u/s 419 IPC and in default to undergo simple imprisonment for a period of three months. He was acquitted of the charge u/s 201 IPC. The accused numbers 2 to 6 were acquitted of all the offences. It was against this the first accused preferred the appeal before the Sessions Court which had allowed the appeal and acquitted Crl.A. 888 OF 2003 -2- the accused. It is against that decision the present appeal is filed after obtaining special leave. 2. It is the case of the defacto complainant that the first accused had married her as per the customary law on 10.9.86 and a male child was born to them in the wedlock on 23.9.91. It is averred that the first accused used to ill-treat her and ultimately she had to leave separately. The marriage between the first accused and the defacto complainant is still subsisting. It is case of the defacto complainant that while so on 10.9.94 the first accused had married the 2nd accused at Sreekrishnaswamy Temple, Thodupuzha and other accused have also played active role and thereby the first accused has committed the offence of bigamy and other offences. In the trial court PWs.1 to 3 were examined and Exts.P1 to P4 were marked. The trial court found the accused guilty of the 2nd marriage and convicted him u/s 494. Against that decision he preferred an appeal and the learned Sessions Judge allowed the appeal mainly on two grounds. First was that there is no proper evidence to prove the marriage between the accused and the complainant. The 2nd fact was that the 2nd marriage has not been performed in accordance with the custom. It is Crl.A. 888 OF 2003 -3- also written that Ext.P1 marriage certificate does not prove that the marriage between PW1 and the appellant was solemnized according to Hindu rites including 'Saptapadi'. 3. So far as the first point is concerned there is no dispute for even the first accused that he has not married the first accused as per the customary law. When questioned u/s 313 he had admitted that he is the husband of the complainant. To another question he had admitted that the said marriage was conducted in accordance with the Hindu rites. So it is very clear that there is no dispute for the parties with respect to the validity of the marriage between the defacto complainant and the first accused. So finding of the learned sessions judge that the said marriage has not been properly proved is without basis and it requires to be set aside and I do so. 4. The 2nd point is regarding the marriage alleged to have been performed between the first accused and the 2nd accused from the Sreekrishnaswamy Temple at Thodupuzha. I am not analyzing the evidence in this case for the reason that the appellate court has not done it properly or has not considered it at all. The appellate court held that the Crl.A. 888 OF 2003 -4- customary marriage including the steps of 'Saptapadi' has not been proved and therefore even if there is a marriage there is no valid marriage in the eye of law and so the first accused cannot be proceeded against. As far as the 'Saptapadi' is concerned it is done by a section of Hindu community who follow Hindu Mithakshara Law. Here admittedly the parties belong to the Nair community who are the followers of Marumakkathayam Law. In the Marumakkathayam Law of marriage the question of 'Saptapadi' does not arise at all and there it is always held that it is only a contract and innumerable number of authorities are available to show what all formalities are to be complied with in performing the marriage between two Nairs. I find that the finding recorded by the learned Sessions Judge, since the 'Saptapadi' is not performed the marriage is not valid is totally erroneous which requires correction. Therefore the finding on that point is also set aside. 5. Lastly, the learned counsel would contend, since the appellate court has not considered the matter, i.e, evidence in the proper perspective a direction be given to the appellate court to appreciate the evidence in the proper form to arrive at Crl.A. 888 OF 2003 -5- a decision. I feel that an opportunity can be given in that regard. Therefore the order of acquittal passed by the learned Sessions Judge is set aside and the matter is remitted back to the Sessions Judge for fresh hearing of the matter in accordance with law after hearing the parties concerned. I make it clear the question of marriage between the first accused and the defacto complainant is proved beyond doubt and it does not require any further consideration. Similarly, the Court shall not entertain the hearing on the point that 'Saptapadi' to be performed for a Nair marriage. Other materials may be considered and acceptability or otherwise of the evidence of PWs.1 to 3 be considered independently and a decision is arrived at. The parties are directed to appear before the Court below on 17.9.2009 for further hearing. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 888 OF 2003 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 888 OF 2003 = = = = = = = = = = = J U D G M E N T 3rd August, 2009