IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 CRL.A.No. 1374 of 2003(C) ------------------------------------- CC.NO.160/2000 OF JUDL.MAGISTRATE OF FIRST CLASS, ETTUMANUR. .................... APPELLANT/ COMPLAINANT: ------------------------------------------ SHINY, W/O. JOY CYRIAC, KATTIYANKAL HOUSE, KIDANGOOR SOUTH P.O., NOW RESIDING AT ATTUPURATHU HOUSE, CHINGAVANAM. BY ADV. MR.ABRAHAM MATHEW (VETTOOR). RESPONDENTS/ ACCUSED AND STATE: ---------------------------------------------------------- 1. JOY CYRIAC, KATTIYANKAL HOUSE, KIDANGOOR SOUTH. 2. SHILLY JOY, W/O. JOY CYRIAC, KATTIYANKAL HOUSE, KIDANGOOR SOUTH. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. MR.T.I.ABDUL SALAM, R3 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1374 OF 2003 = = = = = = = = = = = = = = = Dated this the 12th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate, Ettumanoor in C.C.160/00. The complaint was preferred u/s 494 and 496 IPC r/w S.34 IPC against respondents 1 and 2 in the appeal. It is the case of the complainant that she was legally married to the first respondent herein on 2.9.93 and a child had been born to them in the wedlock. Thereafter there was misunderstanding between the couple and for the reasons beyond her control, on account of the cruelty meted out, she left the matrimonial home to her house on 11.10.1997. It is the definite case of the complainant that on 31.12.1997 the first accused namely her husband got married with the 2nd respondent at Velankanni Church situated in Tamil Nadu. They have been cohabiting together and children are born to them in the wedlock. Since the first accused had married the 2nd accused during the subsistence of the marriage between the Crl.A. 1374 OF 2003 -2- complainant and the first accused an offence u/s 494 and 496 IPC is committed and therefore had prayed for conviction on the basis of the same. I will first refer to the documentary evidence. 2. Ext.P1 would establish that the complainant had been married by the first respondent on 2.9.1993. Ext.P2 is the order passed by the Family Court, Kottayam in M.C.27/99. In paragraph 3 of the order there is an admission by the first respondent to the effect that he is keeping a mistress, that is, 2nd respondent and that he has got two children in that relationship. Exts.P3 and P4 are the birth certificates of the two children born to R1 in R2 on 11.1.1999. They are twins. 3. Now, I will look into the oral evidence. PW1 is the complainant. She had spoken about her marriage and had also stated that on 31.12.1997 her husband had married one Shilly at Velankanni and they are living together and two children are born in the wedlock. According to her the said marriage was done as per the customary rites in the presence of the relatives and friends. It is also deposed by her that one Anil Mathew who had participated in the marriage had come and told her about the same. In the cross examination she Crl.A. 1374 OF 2003 -3- had stated the customs and formalities to be followed for a Christian marriage, i.e., three times it has to be announced from the Church and a certificate has to be obtained. It will be announced on three Sundays. New cloth by name Manthrakodi will be purchased. Then the Father or the Bishop as the case may be, will bless and the bridegroom will tie Thali on the bride, at that time there will be witnesses also. She had also stated that parties as well as the Bishop or Father has to sign the marriage register. She had not gone to the Church to witness the marriage on 31.12.1997. She does not know who conducted the marriage. She would further answer to a question, ................................................................. ..................................................................................... She had also spoken about the formalities that was followed for her marriage with the first respondent. 4. PW2 is a person, Anil Mathew who is said to have attended the marriage. He would depose that when he had gone for some prayer with his sister he had seen the first respondent marrying the 2nd respondent. He would also state about the following of the customary rites but in the chief examination he does not even speak a solitary sentence about Crl.A. 1374 OF 2003 -4- the customs or ceremonies followed in the marriage. When he was cross examined he admits that after marriage one has to sign the register. He would admit that he had not seen the respondent signing the register. He had not seen the announcement as well as exchange of letters, that is, relating to the churches situated in the native places of the bride and bridegroom. He does not know who will place the Manthrakodi on the bride. He would say that there were no video or photographs. He does not know under which head the Velankanni church comes. Christian marriages can and should be conducted only from the church. Under the Christian law all sanctity is attached to the marriage. They consider it as sacrosanct and unite the couple to live till the end and under former law even divorce was unknown among Christians. So there must be a person to preside over and if a marriage is conducted in church especially in a church like Velankanni which is a very big church there would be documents. The marriage has to be registered. Absolutely no scrap of paper or evidence worth are produced before Court except the mere ipsi dixit of PW2. Even PW2 does not know in the chief examination what are the customs and rites followed. So in Crl.A. 1374 OF 2003 -5- order to put the case into the track the factum of marriage has to be proved. The evidence in this case does not prove the alleged marriage between R1 and R2 at all. It is true that first respondent is living with the 2nd respondent and it is seen from the order passed by the Family Court that he has admitted that he has a mistress and two children are there. Law is to be interpreted only in accordance with terms and procedure and in order to attract an offence u/s 494 IPC unless 2nd marriage is proved husband cannot be convicted. Therefore from the materials available I am also convinced that there is absolutely no evidence to prove the second marriage and when it is so the inevitable result is to acquit the accused which has been done by the Court below. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-