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PETITIONER: LINGARI OBULAMMA

       Vs.

RESPONDENT: L. VENKATA REDDY & ORS.

DATE OF JUDGMENT19/01/1979

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

CITATION:  1979 AIR  848            1979 SCR  (2)1019  1979 SCC  (3)  80

ACT:      Penal Code-S.  494-Scope of-Essential  conditions to be satisfied for application of the section.

HEADNOTE:      The appellant  was the  husband of  respondent  No.  1. Relations between  the husband and wife having been strained for some  years they  lived  separately.  On  the  husband’s complaint that  his wife  had married  another person during the subsistence  of their  marriage, she  and accused  no. 4 were convicted under s. 494 IPC.      Allowing the  wife’s revision  petition the  High Court held the marriage to be void on the ground that there was no evidence to  prove that the essential ceremonies required to be performed  in a  Hindu marriage,  namely Dutta  Homa  and Saptapadi had been performed.      In appeal  to this  Court the  husband  contended  that under the  custom followed  by the  community to  which  the parties belonged  Saptapadi was not an essential requirement to constitute  a valid marriage but that tying a yarn thread round  the   bride’s  neck  at  the  time  of  marriage  was sufficient to  make a  valid marriage  and this  having been done, the  second marriage was valid and the wife was guilty of the offence under s. 494 IPC.      Dismissing the appeal. ^      HELD: The  prosecution failed  to prove that the second marriage was a valid marriage and, therefore, the High Court was justified in acquitting the respondents. [1022 F]      Before a  conviction can  be recorded  under s. 494 IPC the following ingredients must be sartisfied :-           (1)   that the complainant had been married to the                accused;           (2)  that the accused contracted a second marriage                while   the    first   marriage   was   still                subsisting; and           (3)  that  both   the  marriages  were  valid  and                strictly  according   to  law  governing  the                parties. [1022 B] In the instant case there was no evidence to show that there was any  custom among  the parties  out weighing the written text of law. Secondly, the husband had not clearly mentioned

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that the  parties were  governed by  custom in derogation of Hindu Law.  The priest  who performed the marriage had shown complete ignorance  as to  whether or  not the  parties were governed   by    custom.   The   witness   was,   therefore, incompetent,to depose  about the  existence of any custom in the family  of the  parties. When the priest said that there was no custom of sacred fire and Saptapadi what he meant was that in  the second  marriage these  two ceremonies  had not been performed. [1022 C-D & 1021 G-H] 1020 In re: Dolgonti Raghava Reddy & Anr., AIR 1968 (AP) 117 held inapplicable.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 339 of 1975.      Appeal by  Special Leave  from the  Judgment and  Order dated 19-3-1975 of the Andhra Pradesh High Court in Criminal Revision Case  No. 16/74  (Criminal  Revision  Petition  No. 12/74).      P.  Parmeshwara   Rao,  T.   V.  S.  N.  Chari  and  R. Nagarathnam for the Appellant.      A. V. V. Nair for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This  appeal by  special leave  has been filed by  the complainant  against the  order of  the Andhra Pradesh High  Court acquitting the respondents, who had been convicted by  the trial  court Magistrate  and the  Sessions Judge under Section 494 I. P. C. and sentenced to six months rigorous imprisonment and a fine of Rs. 100/- as modified by the Sessions Judge.      The  appellant   had  filed  a  complaint  against  the respondent No.  1 on  the ground that he was her husband and while the  first marriage was subsisting he had contracted a second marriage and was, therefore, guilty of the offence of bigamy as  enshrined in Section 494 of I. P. C. According to the prosecution  the first marriage of respondent No. 1 with appellant took  place on 22-4-68. After about 3 years of the first marriage  the relations  between the  husband and wife became  strained  and  they  separated,  but  there  was  no divorce. On  1-4-1972 the  respondent No.  1 married accused No. 4  and the  other accused  who  were  relations  of  the respondent participated  in the  marriage. On  knowing  this fact the  appellant filed  a complaint  on 26-4-1972  on the basis  of   which  the   respondents  were   prosecuted  and ultimately convicted  under Section 494 of I. P. C. The case went up  in revision  to the  High Court  which accepted the revision and  acquitted the accused on the ground that there was no  proof of  a valid  marriage having  been  contracted between accused  No. 4 and accused No. 1. Against this order the appellant  filed a  petition for special leave and after obtaining special  leave, the  appeal has been placed before us for hearing.      The short  point involved  in  this  appeal  is  as  to whether or  not the second marriage contracted by respondent No. 1(A-1)  with respondent  No. 4(A-4)  was a legally valid marriage. The  High Court  pointed out  that under the Hindu Law, two essential ceremonies of 1021 a valid  marriage are  Datta Homa  and Saptapadi i.e. taking seven steps  around the  sacred fire.  The High  Court found that there  was absolutely  no evidence to prove that any of these two  essential ceremonies  had  been  performed,  and,

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therefore, the  marriage was void in the eye of law. In this view of  the matter  the High Court held that the conviction under Section 494 I. P. C. could not be sustained.      In support of the appeal Mr. Rao has submitted that the High Court  has taken a wrong view of law and has overlooked the fact  that in  the instant case, the parties belonged to the Reddy  Community and  were therefore  governed by custom and under  the custom  the two  ceremonies mentioned  by the High Court  were not  necessary at all to constitute a valid marriage. The  other ceremonies  which were  necessary under the custom  had been performed according to Purohit (P.W.1). Unfortunately, however,  in the  state of  evidence  in  the present case it is impossible for us to hold that the second marriage was a valid one. In the first place it has not been clearly mentioned in the complaint as to whether the parties were  governed   by  custom  in  derogation  of  Hindu  Law. Secondly, P.W. 1 stated thus:-           "Among Kapus,  according  to  their  customs  each      community will  perform the  marriage. Some  Kapus have      only ’Yarn  Thread’ instead of Mangala Sutram. I do not      know what is the custom (Acharam) of the accused. There      was no  custom of  putting sacred  fire. There  was  no      ’Agni Gundam’  (Sacred fire  and no going round 7 times      by the  bride and  bridegroom). I  do not  know whether      that is true of a secret marriage".      It would  appear from the aforesaid statement of P.W. 1 that he had clearly stated that he does not know what is the custom of  the accused.  Having shown  complete ignorance of the fact  as to  whether or  not the accused was governed by custom the witness goes on to state that there was no custom of sacred  fire and Saptapadi. What the witness really means is that  in the  second marriage  which  was  contracted  by respondent No. 1, these two ceremonies were not performed by him.  Mr.  Rao,  however,  vehemently  contended  that  this witness proves  that in  the Reddy  Community the  custom of Saptapadi was not prevalent and it was sufficient to put the ’Yarn Thread’  instead of Mangal Sutra’. In our opinion when witness has  frankly admitted  that he  does  not  know  the custom of the accused he was incompetent to depose about the existence of any custom in the family 1022 of the  accused. It is well settled that before a conviction can be  recorded under section 494 the following ingredients must be proved:-           (1)  That the  complainant had been married to the                accused;           (2)  That the accused contracted a second marriage                while   the    first   marriage   was   still                subsisting;           (3)  That  both   the  marriages  were  valid  and                strictly  according   to  law  governing  the                parties.      In the  instant case there was no evidence to show that there was  any custom  amongst the  Reddys which, outweighed the written  text of  law. The  evidence of P. W. 1, clearly falls short  of the  standard to  prove this  fact. Mr. Rao, however, strongly relied on a decision of the Andhra Pradesh High Court  in some  other case to show that among the Reddy Community of  Telangana area  the two  ceremonies  mentioned above were  not necessary.  In the  first place the decision referred to  above in the case of re: Dolgonti Raghava Reddy and Another(1) clearly shows that the Court in that case was concerned only  with the Reddy Community of Telangana alone. The trial  court has pointed out in its judgment that so far as accused  is concerned  he belongs  to the Reddy Community

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not of  Telangana area,  but that  of Rayalaseema  area.  In these circumstances the Judgment of the High Court cannot be of any avail to the appellant. Moreover, as the existence of the custom was neither mentioned in the complaint nor proved in the evidence it would be difficult for this Court to rely on the  decision of  the High  Court which  was based on the evidence, facts  and circumstances of the case before it. In these circumstances  we agree  with the  High Court that the prosecution had  failed to  prove that  the second  marriage contracted by  respondent No.  1 with respondent No. 4 was a valid marriage  and, therefore,  the High  Court  was  fully justified in  acquitting  the  respondents.  The  appeal  is without any substance and is accordingly dismissed.      P.B.R.                                Appeal dismissed. 1023