' '

PRIYA BALA GHOSH

SURESH CHANDRA GHOSH

March 4, 1971

[C. A. VAIDIALINGAM AND A. N. RAY, JJ.)

Penal Code (Act 45 of 1860), s. 494-Proof of second marriap, e-- ,4.dn1ission of second marriage-Relevancy.

The appellant filed a complaint against her husb, and 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 coun 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 solemnisation of a marriage accdrding 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 unde+ 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 ceremonie..,, had been performed and confirmed the acquittal of the respondent.

In appeal to this Court,

HELD : (I ) 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 BJ

(2) The statement in the earlier proceedings in relation to the com plaint under s. 494 I.P.C., could not be relied upon because : (a) though strictly it was not a confessicn nevertheless, 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 opponunity of offering his expla11ation, if any, in respect of su.ch 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-HJ

(J) 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 BC]

Bhaurao Shankar Lokhande v. State of Maharashtra, (1965] 2 S.C.R. 837 and Kanwal Ram v. Himacha/ Pradesh Admn. [U66] I S.C.R. 539, followed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

A 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. Majumdar and R. K. Jain, for the appellant. ·

The respondent did not appear.

The Judgment of the Court was delivered by

Vaiilialingam, 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, !st 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 motlier and brother. The respondent illegally married one Sandhya Rani as his second wife on May 31, 1962 and they have been living together as husband and wife.

As the second marriage has taken place during the subsistenee of the appellant's marriage with the respondent, the second marriage is invalid in law aµd 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 allt:ged second marriage betwet; n the respondent and Sandhya Rani, held that the marriage of the appellant with the Jespondent 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- ,

:ORIYA KALA I'. s. c. GHOSH ( Vaidialingam, /.) 983

nal Procedure. ln this view the Magistrate held that there cannot be any doubt that the respondent has marned Sandhya Rani whlle hts lirst wite, the appellant, was still alive. The Magistrate further 'held that as the marriage with the appell:yit was subsisting, the second marriage is void under s. 17 of the Hindu Marnages Act, 1955 (Act 2.) of 1955), (heremafter 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. :500/- 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 D 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, however, differed from the finding of the learnetl 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 betwen the appellant and the respondent: But regarding the second marriage, the High Court agreed with the finding of the learned Sessions Judge that the esential 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 apJlellant's appeal.

. Mr. S. C. Majumdar, learned ceunsel for the appellant, has raised two contentions before us : ( 1) 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 respondeni in Ex. 2 about the second marriage and having ilue regard to the other surrounding circumstances, it must be held that the resp:mdent i~ guilty of the offence under s. 494 l.P.C. The respondent

964 SUPREfy!E COURT REPORTS ' [1971]3 S:c.R.

has not appeared before us and we have to proceed on the basis.

A t

of the fuiding of the learned Sessions Judge, accepted by the High Court, that the appellant was married to the respondent arid that the marriage was subsisti~ on the date of the alleged second marriage.

Both the contentions of the learned counsel for the appellant B can be dealt with together. It ha& been poi.rited oufby the learned Sessions Judge that ooth sides ; igreed t!lift according to the law • prevalent amongst the parties Hom/J 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 c alleged marriage of the respondent with Sandhya Rani.

Tl).ere.. fore, the main question that has to be considered is whether the performance of the above ceremonies .and rites have to be e.stablished 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 D marriage of the respondent and Sandhya Rani has given evidence to the effect that the marriage was solemnised accordiri:g to Hindu rites.

He bas not said anything more than. this.

The other evidence adduced' bas 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 F. and that it bas also not been proved thattbere wa5 any custom prevalent I amongst the parties that those essential ceremonies .are not necessary for the purpose of solemnization of the marriage.

According to Mr. Majuindar, when once the priest has given evidence to the effect that the marriage between the respondent .F and Sandhya Rani has been performed, it follows that. an the • essential ceremonies that are necessary to constitute a valid marriage must be presumed to Ji.ave been performed. In any event, when there is evidence, t!J show that the marriage as a fact has taken place, the presumption is that it has taken place according to Jaw.

In this connection oM'r. Majumdar referred us to various G English decisions w!Jere on the basis of certain evideuce 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 J those cases cited by the learned counsel as the position is coneluded against the appellant by the decisions of this Court on H both points. Sei; tion 5 of the Act Jays down conditions for a ..

Hindu marriage.

It will be seen that one of the conditions is that referred to. iii clause ( i), namely, that neither of the parties

l'RlYA BALA v. s. c. Gl~OSH (Vaidia/ingam, J.) 965

i A has a spouse living at the time of the marriage. Section 7 dealing with the ceremonies for Hindu marriage iS as follows :

"Section ?-Ceremonies fOr a Hindu marriage.

(I) A Hindu marriage may bi; sqlemnized in accordance with the customary rites ii!Jd ceremonies of B either party thereto.

(2) Where such rites and ceremofiies include the Saptapadi (that is, the taking of sevn steps by the bridegroom and the bride jointly before the sacred fire), the marriage \JP.comes a complete c and binding when the sventh 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 Hom" and Saptc.padi were essential rites to be porformed for solemnization of the marriage and .there is no specific evidence regarding the performance of these essential rites.

The parties have also D not proved that they are governed by any custom under which these essential ceremonies need not be performed.

Section 11 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 il any party thereto have a spouse living at the time pf the marriage.

E Section 17 relating to punishment of bigamy is as follows :

"Section 17 Punishment of bigamy :

Any marriage ben two Hindlis solemnized after the commencement of i£ 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 lndian Penal Code shall apply accordingly."

 Again in. the ase before us there is no contr\)v.ersy that the second marriage ts stated to have taken place 'after the C!>lllmencement of the Act during the subsistance of the first marriage.

G 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-

H Whoever, having a husband or wife living, marries "

in any case in. which such marriage is void by reason of its taking place durinl( the life of such husband or wife shall be punished with imprisonment of either descrip:

9 ti Ii

SUPREME COURT REPORTS pn!JJ s.c.R

tion for a term which may extend to seven years, and shall also be liable to fine."

In Bhaurao Shankar Lokhande and ano1her v. State of Maharashtra and another,(') 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 perfonned 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 l.P.C. it was not necessary that the second marriage should be a valid one and a person going through any form of marri~ 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 dµring the life time of the husband or wife of the person marrying arises. If the marriage_ is not a valid marriage, it is no marria)?e in the eye of law." Again in interpreti11g 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 'solem- G nized'. It is therefore essential for the ourpose of s. 17 of the Act, that the marri'lge to which s. 494 J.P.C._

applies on account of the provisions of the Act. should have been celebrated with oioner ceremonies and in due form.

Merely going through certain ceremonies th the intention that the oartie~ be taken to be murned.

H will not make them ceremonie' nre•cribed bv law or approved by any established custom."

(!) [1965) 2 S.C.R. 8~7.

PRIYA BALA v. s. c. GHOSH (Vaidiallngam, I.) 967

From the above quotations it is cl~ that if the al.leged second marriage is not a valid one accordmg to. law pphcable to !he parties, it will not be void by reason of its taking plae dunpg the life of the husband or the wife of the person marrytnj! 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 mamage 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 a valid marriage have been performed.

After referring to .the P!'S&age in Mull~'s Hindu Law 12th Bdn. at page ~15 dealmg with the essential ceremonies ihich have to be performed for a valid marriage, this Court, on the . .evidence held that the prosecution hac:J neither established that the essential ceremonies had been performed nor that the performance of the essential cermonis had been abrogated by the custom governing 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 perfrmed in accordance with the requirement of s. 7 of the Act. The effect of the decision, in oµr opinion, is that the prosecution has to prove that the alleged second marriage had &en dlJ}y performed in accordance with the essential reli¢ous rites a, oplicable 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.

· Tn Kanwal Ram and others v.

The Himacha/ Pradesh Admn.(1) this Court reiterated the principles laid down is the . earlier decision referred to above that in a prosecution far bigamy the second marriage has to be proved as a fact and it inust also be proved that the necessary ceremonies had been perfOrmed.

Another prOPOSition laid down bv this decision, which answers the second contention of the learned counsel for the appellant, is that admission of marriage bv an accused is no evidence of marriage for the nuroose of provinir an offence of bie:amv or adulterv. On the evidence it was held in the said decision that the witnesses have not nroved that the essential ceremonies had been uerformed.

It was contended that an admission made by the accused ree:ardine: the second marrial!'e is conclusive of the fact of a second marriae:e havin!! taken nlace and that without anv other evidence

a conviction could be based on such admission.

This Court rejected the said contention statine: :

" .......... it is clear that in law such admission _is not evidence c; if the fact of the second marria!!e-havinl?

1. r!Qi; i 1 ~.r.R. <~Q

taken place. In a bigamy case, the second marriage as A a fact, that is to say, the ceremonies constituting it must be proved : Empress v. Pitambur Singh (1), l!.fr]press v.

Ka~/11(2), Archbold Criminal Pleading "Evidence a11d Practice (35th ed.) Art. 3796. In Kallu's case and in Morrie< v. Mil/er~ 8 ) it has been held 'that admi;; ion of marriage by the accused is not evidence of it for the B purpose of proving marriage in an adultery or bigamy case . ..... " The dedsion in R. V. Robinson(') 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.

C 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 to us by Mr. Majumdar; and it is not necessary for us to refer to the same over again excepting D to say that the said decision does not advance the case of the appellant.

As poinied out earlier, this Court in Kanwal Ram's c<1se has laid down that an admission is not evidence of the fact that the second marriage has taken place after the ceremonies constifuting the same have been gone through.

As the High Court has dealt with the question regarding the admissibility of°llmnission 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 oilly to deal with the contention advanced on behalf of the appellant and to reject the same.

The trial Magistrate whose decision was iri fav<>ur of -tile appellant has himself expressed the view that the evidence on, the side of the aopeilant

regl!rdimr the alleged secorid marria!!:e is very scanty. But that court held that the respondent has admitted the second marriage in Ex. 4, which was ari objection filed by the respondent in an anplication filed by the aopellant for, maintenance under s. 488 Cr. P.C. We have )(one throu!!:h the said objection oetition. The resoondent has alleged various acts of misconduct against the appellant and he has merely_stated that he was coinoe!led to marrv

again.- But no other narticulars have heen given in the said objection oetition. We are of the view that no admission of the second marria!!:e by the reoondent with Sandbva Rarii can be culled out from Ex. 4. Jn.fact the trial court has based.its firding

I. m~01 t. L. R. 5 C•l.566.

3. 4 Jlurr. 2057: 98 E.R. 73.

2. [18~2) I.LIU All. 233.

4. [193811 All. E.R. JOI.

PRJYA BALA v. s. c. GHOS~ (Vaidialingam, 1'.) 9.69

regarding the second marriage alrilost 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 thJt 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>.· 494 1.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 marriage. The High Court was of the viw that the statement contained in Ex. 2 would really be a confession statement and.declined to act on the same for two rea'sOn.s : firstly, that the statement, in Ex. 2 had not 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 intq 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 respo'iident.

The resoondent being in the oosition of an accused was entitled to be given an oooortunity of offering his explanation, if any. in respect of the incriminating statement contained in Ex. 2.

Such an ?PPOrtunitv has not been admittedly given tp the respondent.

H1~ statement in Ex. 2 has not been put to his when he was examined under s. 34'2 Cr. P.(;'.

Further as pointed out by this Court in Kawai Ram's case the admission in Ex. 2 cannot in law be treated as evidence of the second marriae having takn place. in an adultery or begamy case: r:d that m such cases 1t must be proved by the prosecution that the second marriaee as a fact has taken place after the performance of the essntial ceremonies.

Mr. Majumdar relied on the decision of this Court in Bharat Singh and another vs. Bhagirathi(1) to the effect thiit the admis-

1. [1966] I S.C.R. 606. . ... - .

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 riles-for a

mariage 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 can be 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.

Appeal dismissed.