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PETITIONER: GOPAL LAL

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT30/01/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1979 AIR  713            1979 SCR  (2)1171  1979 SCC  (2) 170

ACT:      Bigamy, offence  of under  section 494 I.P.C.-Admission and legal  evidence of  actual marriage  by custom  of  nata marriage attracts the provisions of section 494 I.P.C.      Nata marriage  by  customs  and  therefore  void  under section 17  of the Hindu Marriage Act, 1955-Whether voidness of a  marriage  under  section  17  of  the    H.M.A.,  1955 disattracts the  applicability of  the provisions of section 494 I.P.C.

HEADNOTE:      After having  fallen out  and parted  company with  his wife Kanchan  in the  year 1963, the appellant, belonging to Telli  community  contracted  a  second  marriage  prevalent amongst his  community with  Gopi  on  20th  March  1969.  A complaint filed  by his  first wife  ended in his conviction under section  494 I.P.C. and sentence of two years R.I. and a fine  of Rs.  2,000/-, the  conviction and sentence having been upheld by the Rajasthan High Court.      Dismissing the appeal by special leave, the Court, ^      HELD: 1.  The second  marriage  was  a  valid  marriage according to  the custom  of the  nata marriage prevalent in the  Telli   community  which  requires  the  following  two essential ceremonies:-           (a)  that the  husband should  take a pitcher full                of water  from the  head of  the  prospective                wife, and           (b)   that the  wife  should  wear  chura  by  the                husband.      The prosecution  through PWs.  2, 3,  4  and  5  having proved that  these ceremonies have been duly performed, that there was  such a  custom which requires the said ceremonies having been  admitted by  the defence  witnesses 3 and 5 and the validity of the first marriage not having been disputed, Section 494  I.P.C. applies  in terms and the appellant must be  held   to  have  committed  the  offence  of  Bigamy  as contemplated by section 494 I.P.C. [1176A-E]      2. The  combined effect  of section  17  of  the  Hindu Marriage Act  and section  494 I.P.C.  is that when a person contracts a  second marriage  after the coming into force of the said  Act while the first marriage is subsisting, such a

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person commits the offence of bigamy. [1174 E]      Section 17  of the  Hindu Marriage  Act, 1955  makes it absolutely clear  that the  provision  has  to  be  read  in harmony and  conjunction with  the provisions of section 494 I.P.C., the essential ingredients of which are: (i) that the accused spouse  must have contracted the first marriage (ii) that while  the first  marriage was  subsisting  the  spouse concerned must  have contracted a second marriage, and (iii) that both  the marriages must be valid in the sense that the necessary 1172 ceremonies  required  by  the  personal  law  governing  the parties had been duly performed and (iv) the second marriage must have  become void  by virtue  of the  fact that  it had taken place  in the life time of one of the spouses. [1173F- H]      3. Where a spouse contracts a second marriage while the first marriage  is still  subsisting  the  spouse  would  be guilty of  bigamy under  section 494, I.P.C. if it is proved that the  second marriage  was a valid one in the sense that the necessary  ceremonies required  by law or by custom have been actually  performed. The voidness of the marriage under section 17  of the  Hindu Marriage Act is in fact one of the essential ingredients  of section  494  because  the  second marriage will  became void only because of the provisions of section  17  of  the  Hindu  Marriage  Act.  Therefore,  the contention that  the second  marriage being void section 494 I.P.C. will have no application is not correct. [1175F-G]      Bhaurao  Shankar   Lokhande  and   Anr.  v.   State  of Maharashtra and  Ors., [1965]2  S.C.R. 837;  Kanwal Ram  and Ors. v.  The Himachal Pradesh Administration, [1966]1 S.C.R. 539 and  Priya Bala  Ghosh v.  Suresh Chandra Ghosh; [1973]3 S.C.R. 961 applied.      [Bigamy being  a serious  offence for which the maximum punishment is  seven years,  the Court while maintaining the conviction reduced the sentence to one year.]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 255 of 1973.      Appeal by  Special Leave  from the  Judgment and  Order dated 16-7-73 of the Rajasthan High Court in S.B. Crl. Revn. No. 309/73.      A. N. Mulla and B. P. Singh for the Appellant.      Sobhag Mal Jain and S. K. Jain for the Respsondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal by special leave is directed against a  judgment of the Rajasthan High Court by which the conviction of  the appellant  under Section  494 I.P.C.  and sentence of  two years rigorous imprisonment and fine of Rs. 2,000/- have  been upheld.  The facts of this case have been detailed in  the judgments of the courts below and it is not necessary to repeat them. Suffice it to say that the accused Gopal Lal  married the  complainant Kanchan  sometime in the year, 1963  and a  child was  born out of this wedlock. Soon thereafter the  parties appeared  to  have  fallen  out  and parted company.  While the  first  marriage  was  subsisting Gopal Lal  contracted a  second marriage  which according to the custom  prevalent amongst  Tellis is  a  valid  marriage commonly  known   as  nata   marriage.  This   marriage  was contracted on  20th of March, 1969. The complainant Kanchan, the first wife having come to know about this marriage filed a complaint on the 22nd March, 1969, on the basis of

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1173 which appellant  was prosecuted  and ultimately convicted as mentioned above.      Mr. A. N. Mulla, learned counsel for the appellant, had submitted two  points before  us. In  the first place it was contended that  in view  of the  provisions of Section 17 of the Hindu  Marriage Act,  the second  marriage being  a void marriage, the  provisions of  Section  494  I.P.C.  are  not attracted at all. We have given our anxious consideration to this argument but we are of the opinion that the argument is wholly untenable. Section 494 runs thus:      "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 life  of such  husband or      wife, shall  be punished  with imprisonment  of  either      description for a term which may extend to seven years,      and shall also be liable to fine.           Exception-This section  does  not  extend  to  any      person whose  marriage with  such husband  or wife  has      been  declared   void   by   a   court   of   competent      jurisdiction,  nor   to  any  person  who  contracts  a      marriage during  the life  of a former husband or wife,      if such  husband or wife, at the time of the subsequent      marriage, shall  have been continually absent from such      person for the space of seven years, and shall not have      been heard of by such person as being alive within that      time provided  the person  contracting such  subsequent      marriage shall before such marriage takes place, inform      the person with whom such marriage is contracted of the      real state  of facts  so far as the same are within his      or her knowledge".      The essential ingredients of this offence are:           (1)   that the accused spouse must have contracted                the first marriage.           (2)  that while  the first marriage was subsisting                the spouse  concerned must  have contracted a                second marriage and           (3)  that both  the marriages must be valid in the                sense that  the necessary ceremonies required                by the personal law governing the parties had                been duly performed.      It may  also be  noticed that  Section 494 I.P.C. would come into  play only  if the second marriage becomes void by virtue of the fact 1174 that it  had taken  place in  the life  time of  one of  the spouses.  Thus,   it  is  not  possible  to  accede  to  the contention of  Mr. Mulla  that  merely  because  the  second marriage was void under Section 17 of the Hindu Marriage Act hence Section  494 I.P.C. would not be attracted. Section 17 of the Hindu Marriage Act runs thus:      "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".      What  Section   17  contemplates  is  that  the  second marriage must  be according  to the  ceremonies required  by law. If the marriage is void its voidness would only lead to civil consequences  arising from  such marriage.  Section 17 makes it  absolutely clear that the provision has to be read in harmony  and conjunction  with the  provisions of Section 494 of  the Penal  Code  which  has  been  extracted  above. Section 17  clearly provides that provisions of Sections 494 and 495  of the Penal Code shall apply accordingly. In other

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words though  the marriage  may be void under Section 17, by reason of  the fact  that it  was contracted while the first marriage was  subsisting the  case squarely falls within the four corners  of Section  494 and  by contracting the second marriage the  accused incurs the penalty imposed by the said statute. Thus  the combined  effect of  Section 17  of Hindu Marriage Act  and Section  494 I.P.C.  is that when a person contracts a  second marriage  after the coming into force of the said  Act, while  the first  marriage is  subsisting  he commits the  offence of bigamy. (Emphasis ours). This matter no longer  res integra as it concluded by a decision of this Court in  Bhaurao Shankar  Lokhande and  Anr.  v.  State  of Maharashtra &  Anr.(1)  This  Court  while  considering  the question of bigamy qua the provisions of Section 17 observed as follows:      "Section 17  provides that  any  marriage  between  two      Hindus solemnized  after the commencement of the Act is      void if at the date of such marriage either party had a      husband or  wife living, and that the provisions of ss.      494  and   495  I.P.C.  shall  apply  accordingly.  The      marriage between two Hindus is void in view of s. 17 if      two conditions  are  satisfied:  (i)  the  marriage  is      solemnized after the commencement of the Act; 1175      (ii) at  the date  of such marriage, either party had a      spouse living. If the marriage which took place between      the appellant  and Kamlabai  in February 1962 cannot be      said to be ’solemnized’, that marriage will not be void      by virtue  of s.  17 of  the Act and s. 494 I.P.C. will      not apply  to such  parties to  the marriage  as had  a      spouse living".           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  in 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  proper      ceremonies and in due form".      It was  thus pointed  out by this Court that Section 17 of the Hindu Marriage Act requires that the marriage must be properly  solemnized   in  the   sense  that  the  necessary ceremonies required  by  law  or  by  custom  must  be  duly performed. Once  these ceremonies  are proved  to have  been performed the  marriage become  properly solemnized  and  if contracted while  the first marriage is still subsisting the provisions of  Section 494  will apply  automatically. In  a decision of  this Court in Kanwal Ram & Ors. v. The Himachal Pradesh Administration  the earlier  case was noticed by the Court and  relied upon.  The  matter  has  also  been  fully discussed in  Priya Bala  Ghosh v.  Suresh Chandra Ghosh. In view of  the  authorities  of  this  Court,  therefore,  the following position  emerges:  where  a  spouse  contracts  a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved  that the  second marriage  was a valid one in the sense that  the necessary  ceremonies required  by law or by custom have  been actually  performed. The  voidness of  the marriage under  Section 17  of the  Hindu Marriage Act is in fact one of the essential ingredients of Section 494 because the second  marriage will  become void  only because  of the provisions of Section 17 of the Hindu Marriage Act. In these

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circumstances,  therefore,  we  are  unable  to  accept  the contention of  Mr. Mulla that the second marriage being void Section 494  will have no application. It was next contended by Mr.  Mulla that  there is  no legal evidence to show that the second marriage which is said to 1176 be a nata marriage was actually performed. We are afraid, we are unable  to go  into this  question because  three courts have concurrently  found as  a fact  that the  parties  were governed by  custom of  nata marriage  and the two essential ceremonies of this marriage are:           (1)  that the  husband should  take a pitcher full                of water  from the  head of  the  prospective                wife;           (2)  that  the  wife  should  wear  chura  by  the                husband.      There is  evidence of  P.Ws. 2,  3, 4  and 5  who  have proved fact that these ceremonies had been duly performed in their presence.  That there was such a custom which requires these ceremonies  was admitted  by D.Ws.  3 and  5 who  were examined  by   the  appellant.   The  evidence  led  by  the prosecution has  been accepted  by the  High Court  and  the courts below and after perusing the evidence we are not in a position to  hold that  the finding  of facts arrived by the courts below are wrong in law or perverse. From the evidence led by  the prosecution,  therefore,  it  has  been  clearly established that  the second marriage which was performed by the appellant  Gopal Lal  with Gopi  was  a  valid  marriage according to  the custom  of the  nata marriage prevalent in the Telli  community to  which the  appellant belonged. This being so  and the  validity of the first marriage not having been disputed,  Section 494  I.P.C. applies in terms and the appellant must  be held  to have  committed the  offence  of bigamy as  contemplated by  Section 494  I.P.C. Lastly,  Mr. Mulla pressed  this appeal  on  the  question  of  sentence. Bigamy is a serious offence and the maximum punishment under Section 494  is seven years. Therefore, where the offence of bigamy is  proved the Court cannot take a very lenient view. In the instant case the appellant was sentenced to two years and a fine of Rs. 2,000/-. It appears that the appellant has already paid  a fine of Rs. 2,000/-. In these circumstances, therefore, we  feel that  the ends of justice will be met by reducing the  sentence of imprisonment from two years to one year  but  maintaining  the  sentence  of  fine.  With  this modification the appeal is dismissed. The appellant will now surrender  and  serve  out  the  remaining  portion  of  the sentence. S.R.                                       Appeal dismissed. 1177