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PETITIONER: PRIYA BALA GHOSH

       Vs.

RESPONDENT: SURESH CHANDRA GHOSH

DATE OF JUDGMENT04/03/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAY, A.N.

CITATION:  1971 AIR 1153            1971 SCR  (3) 961  1971 SCC  (1) 864  CITATOR INFO :  R          1979 SC 713  (6)

ACT: Penal  Code  (Act  45  of  1860),  s.  494-Proof  of  second marriage-Admission of second marriage-Relevancy.

HEADNOTE: The  appellant  filed a complaint against  her  husband  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 court 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  solemn-isation  of  a marriage  according  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 under 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  ceremonies  had  been  performed   and confirmed the,acquittal of the respondent. In appeal to this Court, HELD  (1)  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 E] (2)  The statement in the earlier proceedings in relation to the complaint under s. 494 I.P.C., could not be relied  upon because  :  (although  strictly  it  was  not  a  confession never theless,  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  opportunity  of offering  his  explanation,  if  any,  in  respect  of  such 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

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having taken place in a bigamy case. [969 D-H] (3)  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 B-C] Bhaurao  Shankar Lokhande v. State Of Maharashtra, [1965]  2 S.C.R. 837 and Kanwal Ram v, Himachal Pradesh Admn, [1966] 1 S.C.R. 539, followed. 962

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 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. Majumdarand R. K. Jain, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Vaidialing,  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, 1st  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  mother  and brother.  The respondent illegally married one Sandhya  Rani as  his  second  wife on May 3 1, 1962 and  they  have  been living together as husband and wife.  As the second marriage has  taken place during the subsistence of  the  appellant’s marriage with the respondent, the second marriage is invalid in  law  and 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 alleged second marriage  between- the  respondent and Sandhya Rani, held that the marriage  of the   appellant   with  the  respondent   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-                             963 nal Procedure.  In this view the Magistrate held that  there cannot be any doubt that the respondent has married  Sandhya Rani  while his first wife, the appellant, was still  alive. the  Magistrate further held that as the marriage  with  the appellant was subsisting, the second marriage is void  under s.  17  of  the Hindu Marria Act, 1955  (Act  25  of  1955), (hereinafter to be referred as the Act) and, therefore,  the

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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. 5001- 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 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,  how- ever,,  differed from the finding of the,  learned  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 between the  appellant  and  the respondent.   But  regarding the second marriage,  the  High Court agreed with the finding of the learned Sessions  Judge that  the  essential  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  appellant’s appeal. Mr.  S. C. Majumdar, learned counsel for the appellant,  has raised  two  contentions before us I  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 respondent in Ex. 2 about the second   marriage  and  having  due  regard  to  the   other surrounding circumstances, it must be held that the  respon- dent  is  guilty  of the offence, under s.  494  I.P.C.  The respondent 964 has  not  appeared before us and we have to proceed  on  the basis of the finding of the learned Sessions Judge, accepted by  the  High Court, that the appellant was married  to  the respondent and that the marriage was subsisting on the  date of the allied second marriage. Both  the  contentions  of  the  learned  counsel  for   the appellant  can be dealt with together.  It has been  pointed out  by  the learned Sessions Judge that both  sides  agreed that according to the law prevalent amongst the parties Homo 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 alleged marriage  of the respondent with Sandhya  Rani.   Therefore, the main question that has to. be considered is, whether the performance  of  the above ceremonies and rites have  to  be established  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 marriage of the respondent  and  Sandhya

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Rani has given evidence to the effect that the marriage  was solemnised  according  to  Hindu rites.   He  has  not  said anything more than this.  The other evidence adduced has 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 and  that  it has also not been proved that  there  was  any custom  prevalent amongst the parties that  those  essential ceremonies   are   not   necessary  for   the   purpose   of solemnization of the marriage. According  to Mr. Majunidar, when once the priest has  given evidence  to  the  effect  that  the  marriage  between  the respondent  and Sandhya Rani has been performed, it  follows that  all  the essential ceremonies that  are  necessary  to constitute  a valid marriage must be presumed to  have  been performed.   In  any event, when there is evidence  to  show that the marriage as a fact has taken place, the presumption is  that  it  has taken place according  to  law.   In  this connection  Mr.  Majumdar  referred us  to  various  English decisions  when on the basis of certain  evidence  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 those cases cited by  the  learned counsel  as the position is concluded against the  appellant by the decisions of this Court on both points.  Section 5 of the  Act lays down conditions for a Hindu marriage’ It  will be  seen that one of the conditions is that referred  to  in clause (i), namely, that neither of the parties                             96 5 has a spouse living at the time of the marriage., Section  7 dealing with the ceremonies for Hindu marriage is as follows :               "Section 7-Ceremonies for a Hindu marriage.               (1)   A  Hindu marriage may be  solemnized  in               accordance   with  the  customary  rites   and               ceremonies of either party thereto.               (2)   Where such rites and ceremonies  include               the  Saptapadi  that is, the taking  of  seven               steps by the bridegroom and the bride  jointly               before the as red fire), the marriage  becomes               a  complete and binding when the seventh  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 Homo and saptapadi were essential rites to be performed  for solemnities  of  the  marriage  and  there  is  no  specific evidence regarding the performance of these essential rites. The  parties have also not proved that they are governed  by any  custom under which these essential ceremonies need  not be performed. Section  1 1 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 if any party thereto have a spouse living at the time  of the marriage. Section 17 relating to punishment of bigamy is as follows "Section 17 Punishment of bigamy               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."

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Again in the case before us there is no controversy that the second marriage is stated to have taken place after the com- mencement  of the Act during the subsistence of  the  first marriage.   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               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               lift.-  of  such  husband or  wife,  shall  be               punished with imprisonment of either descrip-               966               tion  for  a term which may  extend  to  seven               years, and shall also be liable to fine." In  Bhaurao Shankar Lokhande and another v. Slate  of  Maha- rashtra  and  another,(1) 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 performed  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 I.P.C. it was not necessary that  the  second marriage  should be a valid one and a person  going  through any form of marriage 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               during the life time of the husband or wife of               the  person marrying arises.  If the  marriage               is not a valid marriage, it is no marriage  in               the eye of law."               Again in interpreting 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  ’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  Droper  ceremonies               and in due form.  Merely going through certain               ceremonies with the intention that the parties               be  taken  to be married. will not  make  them               ceremonies precribed by law or approved by any

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             established custom." (1)  [1965] 2 S.C.R. 837.                             96 7 From  the above quotations it is clear that if  the  alleged second  marriage  is  not  a  valid  one  according  to  law applicable to the parties, it will not be void by reason  of its taking place during the life of the husband or the  wife of the person marrying 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  marriage  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 valid marriage have been performed.  After referring to  the passage in Mulla’s Hindu Law, 12th Edn. at page 615  dealing with the essential ceremonies which have to be performed for a valid marriage, this Court, on the evidence held that  the prosecution  had  neither  established  that  the  essential ceremonies  had been performed nor that the  performance  of the  essential  cermon is had been abrogated by  the  custom goveming  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 performed in accordance with the requirement of s. 7 of the  Act.   The effect of the decision, in our  opinion,  is that  the prosecution has to prove tbat the  alleged  second marriage  had  been duly performed in  accordance  with  the essential religious rites aplicable 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. In  Kanwwl Ram and others v. The Himachal Pradesh Admn.  (1) ibis  Court  reiterated  the principles, laid  down  is  the earlier decision referred to above that in aprosecution  for bigamy the second marriage has to be proved as a fact and it must  also be Proved that the necessary ceremonies had  been performed.  Another Proposition laid down by this  decision, which  answers the second contention of the learned  counsel for  the  appellant,  is that admission of  marriage  by  an accused  is  no  evidence of marriage for  the  purrpose  of proving, an offence of bieamv or adulterv.  On the  evidence it was held in the said decision that the witnesses have not Proved that the essential ceremonies had been performed. It  was  contended  that an admission made  by  the  accused regarding the second mamaee. is conclusive of the fact of  a second  marriage  having taken place and  that  without  any other   evidence  a  conviction  could  be  based  on   such admission.  This Court rejected the said contention stating               "..................it  is  clear that  in  law               such admission    is not evidence of the  fact               of the second marriage having               968               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(1), Empress v. Kallu               ( 2) , Archbold Criminal Pleading Evidence and               Practice (35th ed.) Art. 3796. In Kallu’s case               and  in Morries v. Miller(3) it has been  held               that  admission of marriage by the accused  is               not evidence of it for the purpose of  proving               marriage in an adultery or bigamy case........ The decision in R. V. Robinson(4) was relied on in the above decision  on  behalf of the prosecution in  support  of  the

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proposition that it was not necessary to prove that all  the ceremonies required for the particular form of marriage  had been  observed.  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 lo us by Mr. Majumdar; and  it  is  not necessary  for us to refer to the same over again  excepting to  say that the said decision does not advance the case  of the appellant. As pointed out earlier, this Court in Kanwal Ram’s case  has laid down that an admission is not evidence of the fact that the  second  marriage has taken place after  the  ceremonies constituting  the same have been gone through.  As the  High Court   has   dealt   with  the   question   regarding   the admissibility  of  admission  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  only  to deal with the  contention  advanced  on behalf  of the appellant and to reject the same.  The  trial Magistrate  whose- decision was in favour of  the  appellant has himself expressed the view that the evidence on the side of  the appellant regarding the alleged second  marriage  is very  scanty.  But that, court held that the respondent  has admitted  the  second  marriage  in  Ex.  4,  which  was  an objection filed by the respondent in an application filed by the appellant for maintenance under S. 488 Cr.  P.C. We have gone  through the said objection petition.   The  respondent has alleged various acts of misconduct against the appellant and  be  has merely stated that he was  compelled  to  marry again.   But  no other narticulars have been given  in  the said  objection  mention.   We  are  of  the  view  that  no admission  of  the second marriage by the  respnondent  with Sandhva Rani can be culled out from Ex. 4. In fact the trial court has based its find ing 1.   [1880] I.L.R,. 5 Cal.566. 3.   4 Burr. 2057, 98 E.R. 73, 2.   [1882] I.L.R.5 All. 233. 4.   [1938] 1 All.  E.R. 301,                             969 regarding  the  second marriage almost 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 that 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  s.  494  I.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 arriage.  The High Court was of the view that the statement contained in Ex. 2  would really be a confession statement and declined to act on  the same for two reasons : firstly, that the statement, in Ex. 2

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had  no,,- 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  into 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  respondent.  The respondent  being  in  the nosition  of  an  accused  was  entitled  to  be  given   an opportunity  of offering his explanatiun if any, in  resdect of  the incriminating statement contained in Ex. 2. Such  an opportunity has not been admittedly given to the respondent. His  statement in Ex. 2 has not been put to his when be  was examined under s. 342 Cr.  P.C: Further  as pointed out by this Court in Kawal  Ram’s  case, the admission in Ex. 2 cannot in law be treated as  evidence of the second marriage having taken place in an adultery  or begamy case: and that in such cases it must be proved by the prosecution  that  the second marriage as a fact  has  taken place after the performance of the essential ceremonies. Mr. Majumdar relied on the decision of this Court in  Bharat Singh  and another vs. Bhagirathi(1) to the effect that  the admis- 1.   [1966] 1 S.C.R. 606. 970 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  rites-for a  marriage  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  canbe  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.                                Appedl dismissed. 9 7 1