1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2382/2010 Sow. Kushawrata w/o Prasant Kadam ...Applicant. V E R S U S Prashant s/o Madanrao Kadam and others. ...Respondents. ------ Shri A.V. Patil (Indrale) Advocate for the applicant. ------- CORAM : SHRIHARI P. DAVARE, J. DATE : 27 th JULY, 2010 PER COURT : 1. This is an application preferred by the applicant seeking leave to file appeal against the judgment and order of acquittal dated 23rd April 2010, passed by learned Judicial Magistrate First Class, Tuljapur in SCC No. 55/1999, acquitting the respondent/original accused for the offence punishable under section 494 r/w Section 109 of Indian Penal Code. 2. I have perused the impugned judgment and order of acquittal dated 23.4.2010 with the assistance of learned counsel for the applicant. 2 3. Complainant’s case, in short, is that, he filed private complaint against accused persons for the offence punishable under section 494 r/w section 109 of Indian Penal Code and it is the case of the complainant that she is legally wedded wife of the respondent/accused No.1 Prashant and her marriage was solemnized with the respondent No.1 on 22.5.1994 as per Hindu rites and religion at Tuljabhavani Temple, Tuljapur. However, their relations were strained. Hence, accused No.1, filed divorce petition against the complainant. It is also alleged that, accused No.1-Prashant performed second marriage with Seema Prashant Kadam on 7.3.1999 during the existence of first marriage. Hence, the complainant filed complaint against accused. 4. Accused faced trial for the afore stated charges in SCC No. 55/1999 and to substantiate the charges levelled against the accused the complainant has examined in as much as four witnesses namely PW 1 Kushawarta Prashant Kadam i.e. complainant herself, PW 2 Rajabai Shinde complainant’s mother, PW 3 Deepak Ingle eye witness to the alleged second marriage and PW 4 Keshav Nivratti Nagare, head master of the school in which children of accused No.1 from his second wife are taking education. 5. After scrutinizing evidence on record, learned trial judge observed in the impugned judgment that as per Hindu Law, for valid marriage, there must be “Saptapadi” ceremony. However, there is no single 3 evidence on record to show that there was “Saptapadi” ceremony at the time of alleged second marriage of accused No.1 with Seema. Consequently, learned trial judge observed in the said judgment that, after perusal of the complaint and entire evidence placed on record, it has no where come on record that at the time of alleged second marriage of the accused No.1 with Seema, “Saptapadi” ceremony was performed. Nowhere, it has come on record that “Saptapadi” ceremony was not required in the religion of the accused to perform marriage. As stated supra, in this case, nothing has come on record to show that “Saptapadi” ceremony was performed at the time of second marriage of accused with Seema. As a result, even though the complainant has produced evidence regarding second marriage of accused No.1 with Seema Kadam, the complainant has not proved that the second marriage of accused No.1 with Seema Kadam was performed by complying all legal requirements of the marriage. In the circumstances, marriage of accused No.1 with Seema Kadam cannot be said to be a legal marriage. 6. In the said context, learned counsel for the applicant canvassed that it was incumbent upon the accused to show that “Saptapadi” ceremony was required for the legal marriage and he relied upon the observations made in the case of S. Nagalingam-appellant V/s Sivagami-respondent reported at AIR 2001 Supreme Court 3576, wherein it is observed that :- “Saptapadi” was held to be an essential ceremony for a valid marriage only in cases 4 where it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had no such case that “Saptapadi” was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section7-A are applicable to the parties. In any view of the matter, there was a valid marriage on 18.6.1984 between the appellant and the second accused, Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6.9.1970.” 7. Considering the submissions advanced by the learned counsel for the applicant and observations made in the afore cited case, it is apparent that facts and circumstances in the present case and facts and circumstances in the case cited by the learned counsel for the applicant differ from each other since in the cited case, amended provisions of section 7-A of Hindu Marriage Act was applicable in the State of Tamilnadu, whereas so is not the position in the instant case. Apart from that, “Saptapadi” is a legal requirement for the valid and legal marriage under the provisions of Hindu Law and therefore, argument canvassed by the learned counsel for the applicant bears no substance. 8. In the circumstances, after analyzing and appreciating the evidence on record, the view adopted by learned trial judge is a possible view to be adopted and reasoning given therefor is valid, legal and logical and same cannot be faulted with and no perversity is found therein. Therefore, 5 no interference therein is warranted in the appellate jurisdiction. Hence, present application deserves to be rejected. 9. In the result, present application stands dismissed and leave to file appeal stands refused. ( SHRIHARI P. DAVARE ) JUDGE ..... aaa/2382.10