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PETITIONER: KANWAL RAM AND ORS.

       Vs.

RESPONDENT: THE HIMACHAL PRADESH ADMN.

DATE OF JUDGMENT: 19/08/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. DAYAL, RAGHUBAR RAMASWAMI, V.

CITATION:  1966 AIR  614            1966 SCR  (1) 539  CITATOR INFO :  D          1971 SC1153  (17,20,23)  R          1979 SC 713  (6)

ACT: Indian Penal Code (Act 45 of 1860), ss. 494, 109-Bigamy  and abetment  thereof-Admission  of accused  Whether  sufficient proof of second marriage.

HEADNOTE: K,  a  woman, was alleged to have married a second  time  in contravention  of the provisions of the Hindu Marriage  Act. 1955  and  was found guilty, alongwith  the  alleged  second husband,  of  an offence under s. 494 of  the  Indian  Penal Code.   Two of her relatives were convicted for abetment  of the above offence.  The Trial Court as well as the  judicial Commissioner  of Himachal Pradesh held that the evidence  of the  only  witness  who was produced  to  prove  the  second marriage,  fell  short  of proving  it.   But  the  Judicial Commissioner convicted the appellants on certain  admissions of  K  and the alleged second husband.  In  appeal  to  this Court, Held: In a bigamy case the second marriage has to be  proved as a fact.  The necessary ceremonies must be proved to  have been performed.  Admission of marriage by the accused is not evidence  of  it for the purpose of proving  an  offence  of bigamy or adultery. [541 P-G] Bhaurao  Shankar Lokhande v. State of Maharashtra, [1965]  2 S.C.R.  837  relied on  Empress  v.  Pitambur  Singh, (1880)  I.L.R.  5  Cal.  566, Empress  v.  Kallu, (1882) I.L.R. 5 All. 233 and  Marria  v. Miller, 4 Burr 2057-98 E.R. 73, referred to.  R. v. Robinson, (1938) 1 A.E.R. 301, distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 167 of 1963. Appeal  by special leave from the judgment and  order  dated July 31, 1963, of the Judicial Commissioner’s Court Himachal Pradesh, in Criminal Appeal No. 7 of 1963.

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S.C.  Agarwala,  R.  K. Garg and D.  P.  Singh,  for  the appellants. K. L. Hathi and B. R. G. K. Achar, for the respondent. The Judgment of the Court was delivered by Sarkar J. This appeal arises out of a conviction for  bigamy and  for  the abetment of it under ss. 194 and  109  of  the Indian  Penal Code.  The trial Court acquitted  the  accused persons but on appeal the Judicial Commissioner of  Himachal Pradesh convicted them.  Hence this appeal. 540 Originally  four  persons were charged,  namely,  Kubja  the bride, Kanwal Ram the bride-room, Hira Nand and Seesia  both relations  of the bride, the latter two having been  charged under s. 494 read with s. 109 for abetment of the offence of bigamy  committed by the two first mentioned  accused.   The charges  were  framed on the complaint of Sadh Ram  to  whom Kubja  had been earlier married.  The complainant  had  also implicated Hiroo, the mother of Kubja but she was discharged by  the  magistrate.  Hira Nand died pending the  appeal  in this Court. Sadh  Ram  was married to Kubja sometime  in  1940-41.   The marriage between the appellant Kanwal Ram and Kubja is  said to  have  taken place in September 1955.  By this  time  the Hindu  Marriage  Act,  1955  had  come  into  force  and  it prohibited  the marriage of a Hindu during the  lifetime  of his  or  her  spouse.  The parties belong to  a  village  in Himachal  Pradesh  among whom a customary form  of  marriage called  Praina,  is  recognised.  Both  the  marriages  were performed  according  to that form.  The marriage  of  Kubja with Sadh Ram though originally challenged is now  accepted. The  only question is whether the second marriage of  Kubja, that  is  to  say, between Kubja and Kanwal  Ram,  has  been proved. The evidence would show that for a marriage in this form the following  ceremonies  are essential.   First  some  agnatic relation  of  the bridegroom goes to the bride’s  house  and offers  her " suhag".  Thereafter, a relation of  the  bride who  is  called  Prainu,  brings her to  the  house  of  the bridegroom.   There  at  the  door  of  the  house  of   the bridegroom  coins are put in a pot and then Puja  and  Katha (reading  of  holy scriputues) are held.   The,  bride  then nicks  up  the pot and takes that to the family  hearth  and bows  there.  Then she makes obeisance to the  father-in-law and  the  mother-in-law  and other  elders  in  the  family. Lastly,  with  feasting the ceremonies end.   The  complaint Sadh  Ram  himself admitted that puja at  the  entrance  and bowing  at the hearth by the bride after she had  picked  up the  pot were compulsory ceremonies.  He added, "If any  one of  these ceremonies is not performed, then the marriage  is not complete." Now all that the only witness who spoke about the ceremonies observed  at the marriage of Kubja and Kanwal Ram  said  was that  Seesia  had brought the suhag and Hira Nand  acted  as Prainu.  He does not mention any of the other ceremonies  to which we have earlier referred. 541 It  was contended for the appellants that this evidence  was not enough to show that the marriage of Kubja and Kanwal Ram can  be  said  to  have  been  performed.   We  think   this contention is justified.  In Bhaurao Shankar Lokhande v. The State  of Maharashtra(1) this Court held that a marriage  is not proved unless the essential ceremonies required for  its solemnisation  are  proved  to  have  been  performed.   The evidence  of  the  witness  called  to  prove  the  marriage ceremonies,  showed  that the essential ceremonies  had  not

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been performed.  So that evidence cannot justify the convic- tion.  The trial Court also took the same view.  The learned judicial  Commissioner  does  not  seem  to  have  taken   a different view. The  learned  Judicial Commissioner, however,  thought  that apart  from  the  evidence  about  the  marriage  ceremonies earlier mentioned there was other evidence which would prove the  second marriage.  He first referred to a  statement  by the  appellant Kanwal Rain that he had  sexual  relationship with Kubja.  We are entirely unable to agree that this, even if  true, would at all prove his marriage with Kubja.   Then the  learned  Judicial Commissioner relied  on  a  statement filed  by  Kubja,  Hira  Nand and  Hiroo  in  answer  to  an application for restitution of conjugal rights filed by Sadh Ram  against Kubja and others, in which it was  stated  that Kubja  married Kanwal Ram after her marriage with  Sadh  Ram had been dissolved.  Now the statement admitting the  second marriage by these persons is certainly not evidence of  ’the marriage so far as Kanwal Ram and Seesia are concerned; they did  not  make it.  Nor do we think, it is evidence  of  the marriage   even  against  Kubja.   First,  treated   as   an admission, the entire document has to be read as a whole and that  would prove the dissolution of the first  marriage  of Kubja  which  would  make  the  second  marriage   innocent. Secondly,  it  is clear that in law such  admission  is  not evidence  of the fact of the second marriage  having,  taken place.   In  a bigamy case, the second marriage as  a  fact, that  is  to say, the ceremonies constituting  it,  must  be proved : Empress v. Pitambur Singh(2), Empress v.  Kallu(3), Archbold Criminal Pleading Evidence and Practice (35th  ed.) Art. 3796.  In Kallu’s(3) case and in Morris v. Miller(4) it has  been held that admission of marriage by the accused  is not evidence of it for the purpose of proving marriage in an adultry or bigamy case: see also Archbold Criminal  Pleading Evidence and Practice (35th ed.) Art. 3781.  We are unable, (1) [1965] 2 S.C.R. 837.   (2) [1880] I.L.R. 5 Cal. 566. (3) [1882] 1.L.R. 5 All. 233. (4) 4 Burr 2057: 98 E.R. 73.  542 therefore,  to  think that the written  statement  of  Kubja affords  any  assistance towards proving her  marriage  with Kanwal Ram. Learned counsel for the respondent state drew our  attention to R. v. Robinson(1) in support of his contention that it is not necessary to prove that all the ceremonies required  for the  particular form of marriage had been observed.   We  do not  think  the case supports that proposition.   There  the second  marriage had been performed according to a  Scottish custom observing all the necessary formalities.  It appeared however  that in order to be able to contract a marriage  in that form one of the parties to it had to reside in Scotland for twenty-one days which none of the parties to the  second marriage  in  that case had done.  It was,  therefore,  held that  the marriage was not valid and the decision  was  that this invalidity of the marriage did not affect the liability for  bigamy.   It was said that the validity of  the  second marriage did not signify.  The judgment pointed out that the previous  marriage  always  rendered  the  second   marriage invalid.  Reference was made there to R. V. AllEn(2) for the proposition that the contracting of a second marriage in  an offence  of  bigamy meant only going through  the  form  and ceremony  of  marriage with another person.   It  was  there found  that  the  form adopted by the  parties  was  clearly recognised by law as capable of producing a valid  marriage. This  form  having  been  observed,  the  court  upheld  the conviction  for bigamy though the marriage turned out to  be

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invalid by reason of the absence of the necessary  condition precedent  as to residence for twenty-one days in  Scotland. This case does not show that if the formalities required  to create a valid marriage had not been observed, a  conviction would  have  resulted.  Indeed in  Lokhande’s  case(3)  this Court has held to the contrary. We,  therefore,  think that the appeal must be  allowed  and order accordingly.  The conviction of the appellants is  set aside and their bail bonds cancelled. Appeal allowed. (1)  [1938] 1 All.  E.R. 301. (2)  [1872] L.R.1 C.C.R. 367. (3)  [1965] 3 S.C.R. 837. 543