S. Murtaza Fazl Ali, J.@mdashThe Petitioner Phankari has been convicted u/s 494, R. P.C. and the other Petitioners u/s 494/109, R. P. C. and
sentenced to simple imprisonment for 5 months and a fine of Rs. 25 each; in default of payment of fine to further undergo simple imprisonment for
one month.
2. Mst. Sansaroo complainant who is the first wife of the Petitioner No. 1 filed a complaint against the accused on 11-8-1960 alleging that the
accused Phankari had contracted a second marriage with Mst. Surmun while his first marriage with the complainant was subsisting. The other
accused are the relations of Mst. Surmun who had participated and assisted in the second marriage of Mst. Surmun with Petitioner No. 1.
3. Briefly put the case for the prosecution is as follows:
The complainant Mst. Sansaroo was the legally wedded wife of the Petitioner No. 1 having been married to him as for back as Phagan 2014 and
thereafter she lived with the Petitioner No. 1 in his house. It is further alleged that the Petitioner No 1 wanted to remarry. He treated the
complainant with cruelty as a result of which he gave beating to the complainant in the month of Poh 2016 and turned her out of the house. Soon
thereafter on 18th Sawan 20l7 the Petitioner No. 1 contracted a second marriage with Surmun with the abetment of the other Petitioners. It is
further alleged that all the Petitioners knew that the applicant was his wife while his second marriage with Mst. burmun was performed.
4. The defenee of the accused was that there was no marriage with Mst. Surmun and that lie did not know that the Petitioner Phankari was married
to Mst. Sansaroo.
5. Both the Courts below on a consideration of the evidence found that the marriage of the complainant with Petitioner No. 1 was proved and that
in spite of there being a subsisting marriage the Petitioner Phankari contracted a second marriage with Mst. Surmun and the other Petitioners
abetted this marriage. The second marriage with Mst. Surmun is alleged to have taken place in the village Dundal.
6. Appearing for the Petitioners Mr. Prakash raised a short point before us. He submitted that there is no legal evidence to prove that there was
any lawful marriage between the Petitioner No. f and Mst. burmun and hence the charge u/s 494 of the Ranbir Penal Code could not be allowed to
stand.
7. The case was heard in the first instance by a single Judge who had referred the case to a larger bench in view of the substantial question of law
involved therein.
8. We have heard the learned Counsel for both the parties at length. The Advocate General appearing for the State submitted that though there is
nolegal evidence on the record to prove that the ceremonies essential for the existence of a valid marriage under the Hindu Law had been
performed, yet all that is necessary for the prosecution to prove was that the Petitioner had undergone some soft of a form of marriage with Mst.
Surmun. In other words, the argument of the learned Advocate General is that the illegality of the second marriage is no bar to the conviction of the
accused u/s 494, R. P. C. and 494/ 109, R. P. C.
9. The specific point which arises in this ease is not free from difficulty and there appears to be some divergence of judicial opinion on the subject.
It is, therefore, necessary for us to consider the point in all its comprehensive aspects. In the first instance, we would like to indicate that the
offence of bigamy u/s 494, R. P. C. has arisen in the present case because of the provisions of the Hindu Marriage Act of 1956 which has for the
first time abolished poly-gamy and has declared that any second marriage contracted by a person to whom the Act is applicable while the first
marriage is subsisting and the first wife is alive, is void.
10. In this connection, Section 7(1)(2) and of the Hindu Marriage Act, runs thus:
(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 bridge groom and the bride jointly before the
sacred fire) the marriage becomes complete and binding when the seventh step is taken.
11. Thus a perusal of this section would show that a marriage contemplated by this Act in order to be a valid marriage must be one which is
solemnized in accordance with the customary rites and ceremonies of either party thereto and; and that such a marriage is complete and binding
only when the ceremonies including Saptapadi (that is, the taking of seven steps by the bridge groom. and the bride jointly before the sacred fire)
are performed. It will, therefore, be noticed that in order to attract the provisions of Section 494, R. P. C. it must be established that there has
been a marriage as contemplated by the Hindu Marriage Act, particularly Section 7, of the said Act, because it is only because of the provisions of
the Hindu Marriage Act that the second marriage of the person to whom the Act has been made applicable has been prohibited. Section 494,
R.P.C. 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 and 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.
12. The argument of the learned Counsel for the parties turned on the interpretation of the word ""marries"" appearing in this section. The learned
Counsel for the Petitioners submitted that the word ""marries"" has been used in the same verse as in the other sections of the Ranbir Penal Code
like 497, 496 and 498. According to the Advocate General the word ""marries"" merely connotes that the accused must have undergone some form
of marriage, whether it is legal or not. In the instant case, there is no evidence to prove that any ceremonies were performed during the alleged
marriage of Phankari with Mst. Surmun. The evidence only indicates that the parties had assembled at the village and P. W. Shib Ram officiated as
a priest of the marriage.
13. This witness does not state in his evidence that he performed any ceremonies. The Advocate General, however, wants us to raise a
presumption that since this witness had officiated as a priest, he must have performed all the necessary ceremonies essential for a Hindu marriage.
We are, however, unable to agree with this broad proposition propounded by the Advocate General. The word ""marries"" appearing in Section
494 of the Ranbir Penal Code undoubtedly denotes that the accused must have undergone some form of marriage but the form of marriage which
this section contemplates is a form which is recognized by law; otherwise there would be hardly any difference between concubine and a lawful
marriage. The Legislature has not made any provision for punishing a person who keeps merely a concubine even when his first spouse is still living.
Furthermore the words appearing in Section 494, R. P. C. ""In any case in which such marriage is void by reason of its taking place during the life
of such husband or wife"" clearly denote two essential conditions:
(i) That the second marriage must be void.
(ii) That it must be void by reason of its taking place during the life of such husband or wife.
14. In the present case, the alleged marriage of the Petitioner Phankari with Mt. Surmun is said to be void because it has taken place contrary to
the provisions of the Hindu Marriage Act. In these circum-stances, therefore, there is no escape from the conclusion that the marriage which has
become void must be one which should be performed in accordance with the provisions of the Hindu Marriage Act and the only provision
regarding the ceremonies is found in Section 7 of the Act which clearly stipulates that the marriage becomes complete and binding when the
ceremonies of Saptapadi nave been actually performed. There is no evidence in the present case that the parties are governed by any custom by
which ceremonies for a particular marriage are not essential. It is common case of the parties that they are governed by Hindu law and under the
Hindu law one of the essential ceremonies necessary for the completion of a marriage is Saptapadi. Thus for an offence u/s 494, R. P. C. where
the second marriage is void by virtue of the provisions of the Hindu Marriage Act, it becomes incumbent on the prosecution to prove at least those
ceremonies which have been recognized by the Statute as being necessary to make the marriage complete and binding. If this is not done, any
marriage that is performed would not fall within the purview of Hindu Marriage Act and hence one of the essential ingredients of Section 494, R. P.
C. would be wanting.
Apart from this, proviso to Section 50 of the Evidence Act, clearly provides that in cases where marriage is an essential ingredient of a criminal
offence, no presumption regarding the performance of marriage can be drawn at all. In other words, the provisions of Section 50 of the Evidence
Act call for a strict proof of the marriage where marriage is an essential ingredient of a criminal offence. In view of this proviso a number of
authorities have laid down that for prosecution Under Sections 494; 497 and 498, R. P. G. marriage must strictly be proved as a fact and no
presumption on this score can be drawn by the Courts. It is not, therefore, possible for us to accede to the argument of the Advocate General that
merely from the presence of the priest at the alleged marriage of Phankari with Mt. Surnmn it should be presumed that the ceremonies had in fact
been performed. Such a course would be against the provisions of Section 50 of the Evidence Act. In support of his argument, the learned
Advocate General has strongly relied on some decisions which we shall now examine. In the first place, reliance was placed by him on a decision
of the Andhra Pradesh High Court reported in Mutyala Paradeshi v. Subbalakshmi, A I R 1962 AP 311, and particularly on the following
observations:
The absence of cross-examination of the wit-nesses for the prosecution who depose as to the factum is a material consideration which goes to
establish that the evidence as to the fact of marriage is undisputed; so also it is not possible to question the validity of a marriage without disputing
or impugning that fact in some way or other in the cross-examination. When there is celebration or solemnization of a marriage which has been
intended by the parties to be binding on each oilier and the form of it has not been wholly opposed or against the custom of the community or the
caste to which the parties belong, the presumption that the ceremonies were complete and the marriage is legal arises as on the supposition that it is
possible that alter a consideration of the matters before it the Court can believe that the marriage tie exists and has therefore been proved. The
reason of this rule is not far to seek."" With very great respect to the learned Judges, we find ourselves unable to agree with the observations made
by them in the aforesaid case, for the reasons that we shall give hereafter.
15. While their Lordships in the aforesaid judgment have clearly held that a marriage cannot be proved merely by the admission made by the
parties, their Lordships seem to think that since the performance of the ceremonies indicated in Section 7 of the Hindu Marriage Act would not
make the marriage ipso facto void, hence once it is proved that some sort of marriage took place, it could be presumed that the necessary
ceremonies were performed. We have already pointed out that the provisions of Section 7 of the Hindu Marriage Act, quoted above, give the
essential conditions which are necessary to make a marriage complete and binding. If these conditions are not satisfied then there is no marriage
under the provisions of Hindu Marriage Act which alone attracts the provisions of Section 494 of the Ranbir Penal Code in case a person
governed by the Hindu Marriage Act contracts a second marriage.
It is true that there is a remedy open to the parties to the marriage to get it either dissolved or to get a declaration that the marriage is a nullity, on
the ground that it has not been performed in accordance with the provisions of the Hindu Marriage Act but that does not mean that unless such
proceedings have been taken the marriage is a valid marriage for the purpose of Section 494, Ranbir Penal Code. It is obvious that if a marriage is
performed contrary to the provisions of the Hindu Marriage Act, it is not a marriage under the Hindu Marriage Act not only when a declaration to
this effect has been granted in proceedings under this Act but even from its very inception. Once this position is conceded, it is manifest that the
second marriage which is contrary to the provisions of Hindu law is not a marriage as contemplated by the Hindu Marriage Act and hence the-
question of the second marriage being void as contemplated by Section 494, Ranbir Penal Code would not possibly arise. It seems to us that this
distinction has-been completely lost sight of by their Lordships of the Andhra Pradesh High Court in the decision cited before us. In order to prove
an offence u/s 494, Ranbir Penal Code prosecution has got to show that a second marriage is void under a particular law. This can only be shown
if it is found that the second marriage was contracted under certain provisions of law and was void because of those provisions. It is in this context
that the answer to the question must be given Furthermore, their Lordships have quoted Halsbury's Laws of England Volume 10 at page 664,
describing the conditions of invalid second marriage, which runs thus:
A person already married who, having the intention of appearing to contract a second marriage, goes through a form known to and recognized by
the law as capable of producing a valid marriage, is guilty of bigamy, although the second marriage even it were not bigamous, would to otherwise
invalid.
A perusal of this statement of law would show that the person who is already married having the intention of contracting a second marriage goes
through a form known and recognized by law as capable of producing a valid marriage. Thus, the essential condition is that the form of marriage
gone through must be one which is known and recognized by law.
In the instant case, both under the Hindu law and u/s 7 of the Hindu Marriage Act, ""saptapadi"" has been regarded as one of the essential
ceremonies to be performed in order to make the marriage valid and binding. Thus, the word ""marries"" appearing in Section 494, R. P. C.
indicates not only that there should be a form of marriage but that the form of such marriage must to one which is known and recognized by law. If
this was not the intention of the Legislature, then any adulterous union or concubine could also have been brought within the purview of Section
494, R. P. C which could never be the intention of the Legislature. A distinction, however, should be drawn between the validity of marriage itself
on grounds personal to the parties and the formal ceremonies that are required to be performed to make a marriage complete. Where the
necessary ceremonies have been performed, the marriage is compel to though it may not be legal where certain other conditions imposed are not
fulfilled. In order to attract the provisions of Section 494 R. P. C. it may not be necessary for the prosecution to prove that the second marriage
was a valid one; nevertheless the prosecution has got to prove that the form of marriage was a legal one. For instance, A contracts second
marriage with B after performing necessary care, monies, but B happens to be within prohibited degrees.
In this case, the second marriage may not he valid under Law, but it is a complete marriage as contemplated by Section 494 R. P. C. In this view,
therefore, the correct approach should be that the prosecution must prove that the second marriage contracted by the accused was one which is
complete and binding though not necessarily valid. This can only be proved if the necessary ceremonies required by Law or by custom have been
actually performed. In Mt. Kalan v. Emperor, AIR 1938 Sind 127, a Division Bench the Sind Chief Court has taken specifically the same view as
we have taken in the present ease. In that case, their Lordships of that Court have made the following observations:
We think it is necessary for the prosecution to prove that the form of marriage was a form recognized by or known to the law, otherwise it would
be open to the prosecution by mere assertion to constitute any mutual act on the part of the man and woman a form of marriage. For instance,
taking an absurd example and the error in a proposition is often most easily and clearly shown by an absurd example, if the complainant chose to
come forward and say that the man and woman held hands while the man crowed like a cock and the woman clucked like a on, that was a ""form
of marriage"", would the learned Judge have accepted that assertion as sufficient Clearly when the word ""marries"" is used in Section 494, R. P. C, it
means marries by some form. of marriage known to or recognized by the law. Section 494, when it uses the word ""marries"" does not of course
refer to a valid marriage. A bigamous marriage cannot be a valid marriage and apart from the bar of the first marriage it may be that there may be
some other legal impediment to the validity of the marriage of the man or woman, some legal impediment personal to the man or woman such as
consanguinity, yet if the second marriage be a form recognized by or known to law, that would we think, be sufficient to satisfy this particular
provision of the section.
We respectfully agree with these observations which are supported by a long course of judicial decisions. In Empress v. Pitambur Singh, ILR 5
Cal 566, which is a Full Bench decision, their Lordships made the following observations:
The marriage of the woman, as observed by the learned Judges who referred the case, is as essential. an element of the crime charged as the fact
of the illicit intercourse, and the provisions of the Evidence Act (S. 50) seem to point out very plainly, that where the marriage is an ingredient in the
offence, as in bigamy, adultery, and the enticing of married woman, the fact of the marriage must be strictly proved in the regular way.
To the same effect is a decision of the Calcutta High Court, Akshay Kumar Maiti and Others Vs. Emperor, , ""where their Lordships observed as
follows:
Mere presumption that the accused must have known that the woman was married without proof of knowledge is not enough: Batiram Keot v.
lihanda-ram Keot, (A I R 1920 Cal 979). The evidence about marriage was proof only of the factum. There was no proof that the marriages had
been celebrated strictly in accordance with the requirements of custom and law applicable to the parties. This is not sufficient in cases under
Sections 497 and 498, where the validity of the marriage is questioned.
16. It will be noticed, therefore, that in this decision also stress was laid on the fact that the prosecution must prove that the marriage had been
performed strictly in accordance with the requirements of law, applicable to the parties. In the instant case, there being no evidence at all of the
ceremony of ""Saptapadi"" which is an essential ingredient for a valid form of marriage both under Hindu Law and the Hindu Marriage Act,
conviction u/s 494 R. P. C. cannot be upheld.
17. In Malan and Others Vs. State of Bombay and Another, ,. Miabhoy J., clearly held that in order that an offence u/s 494 may be committed it is
necessary, at least, that all the ceremonies which are necessary to be performed in order that a valid marriage may take place ought to be
performed and, ordinarily all these ceremonies would amount to a valid marriage but for the fact that the marriage becomes void on account of the
existence of a previous wife. The same view has been taken in the following cases.
Dalip Singh Vs. Rex, ; Ganga Patra Vs. Emperor, ; Empress of India v. Kallu, ILR 5 All 233; Badal Aurat v. Queen Empress, ILR 19 Cal 79 and
Sivarama Suppu v. State, ILR (l962) Ker 89.
18. In Swapna Mukherjee Vs. Basanta Ranjan Mukherjee and Others, , their Lordships have made the following observations:
On a plain reading of the section it would appear that in order that a person may be convicted of an, offence of bigamy, the second marriage must
be a form of marriage recognized by law, otherwise it would be simply an adulterous union and it would not be hit by the provisions of Section
494, I. P. C.
19. On a consideration of these authorities, therefore, it is clear to us that in order to prove that an offence u/s 494 R. P. C. has been made out, it
is 'accessory for the prosecution to prove strictly that the ceremonies required by the law for the second marriage have been actually performed.
20. As we have said already that it may not be necessary for the marriage to be valid where the in-validity arises from some grounds personal to
the parties i.e. consanguinity etc. but the marriage must be complete and binding by virtue of the fact that necessary ceremonies which are required
to be performed have been performed.
21. The Advocate General further relied on a decision of the Bombay High Court, reported as Emperor v. Manju Hanmant, AIR 1948 Bom 374.
This case, in our view, does not appear to be of much assistance to the Advocate-General. In the first place, it would appear that in that case, their
Lordships came to a clear finding that the evidence had established that essential ceremonies required for a valid marriage were actually performed
and in this connection their Lordships made the following observations:
As we have already pointed out, by itself that might not establish any thing, but read in conjunction with other evidence, that evidence clearly goes
to show that those ceremonies were performed and the bandmen were employed not in connection with any puja but in connection with the
marriage which had taken place about that time.
The argument in that case centered round the question as to whether the marriage was a valid marriage under law and their Lordships held that
once a form of marriage is proved, the mere fact that the marriage was invalid would not be sufficient to hold that the accused did not commit the
offence of bigamy. It is obvious, therefore, that their Lordships did not lay down that even if there was no form of marriage as recognized by law
still the second marriage would constitute bigamy as contemplated by Section 494 R. P. C.
22. The Advocate General next relied on a decision of the Nagpur High Court reported as Emperor v. Mt. Soni, AIR 1936 Nag 13. In this case
also, Pollock A. J. G. came to the conclusion that there was sufficient evidence to prove a form of the marriage and held that once the accused had
gone through a form of marriage, whether the marriage should prove in fact legal and valid or illegal and invalid, would not be germane for a
prosecution of bigamy. His Lordship clearly held that the evidence on the form of marriage was very clear 'and that some ceremonies were
performed by Kastur Chand who had officiated as a priest.
23. In the instant case,' however, there is no evidence of any ceremony having been performed by Shiv Ram who is alleged to have acted as a
priest to the marriage of the Petitioner Phankari with Mst. Surmun. Similarly in Jogu Bibi v. Mosel Shaikh, I L R 63 Cal 415, which was a case
relating to a Muslim marriage, a Division Bench of that High Court laid down that where the proposal and acceptance by the parties to the
marriage, was not expressed at the same meeting, the marriage was not valid and hence prosecution for an offence u/s 494 R. P. G. could not
succeed. We might indicate that whereas under the Hindu law marriage is a sacrament under the Mohammadan Law marriage is a pure contract;
and thus the formal proposal and acceptance which has to be made at one meeting, the essential condition to constitute a valid and complete
marriage under the Mohammadan Law must be proved by the prosecution.
24. After a consideration of these authorities and the law on the subject we are clearly of the opinion that before an offence u/s 494, R. P. C. is
proved, the following conditions must be proved affirmatively by the prosecution:
(a) That the accused had gone through a form of second marriage which is recognized by law. In other words, the marriage must be complete and
binding in so far as the essential ceremonies have been performed. It may not be necessary for the prosecution to prove further that the marriage
was in fact legal.
(b) That the accused must know that at the time when he contracted the second marriage, the first spouse was still living and the first marriage was
subsisting.
(c) Both the marriages must be proved as a fact.
(d) That the marriage of the husband or the wife or the admission made by the parties or any presumption u/s 50 of the Evidence Act will not be
sufficient to prove the existence of marriage contemplated by Section 494, R.P.C.
(e) Where a person is prosecuted for 'having contracted a second marriage which is void under the provisions of Hindu Marriage Act, it must
prove at least that the necessary ceremonies mentioned in Section 7 of the Hindu Marriage Act have been actually performed.
25. Applying these tests to the facts of the pre-sent case, we find that there is no evidence to prove that any ceremonies essential to the marriage of
the Petitioner No. 1 Phankari with Mt. Surmun were actually performed. In this view of the matter, the marriage was not a complete marriage
much less a valid marriage.
26. It was, however, contended by the Advocate General on the basis of certain observations in AIR 1962 Andh Pra 311, that once in this east, it
is proved from the evidence of Shiv Ram that he acted as a priest the Court should presume that the ceremonies were in fact performed. Our
attention was drawn by the Advocate General particularly to the following observations of their Lordships in that case:
The absence of cross-examination of: the witnesses for the prosecution who depose as to the factum is a material consideration which goes to
establish that the cadence as to the factum of marriage is un-disputed.
When there is celebration or solemnization of a marriage which has been intended by the parties to be binding on each other.
The presumption that the ceremonies were complete and the marriage is legal arises.
Furthermore the argument that the presumption in regard to the performance of the ceremonies would arise only when the witnesses speak at least
to the adoption of some or part of the ceremonies at the-marriage is not supported by authority.
Since we have already held that for a prosecution, for an offence u/s 494, R.P.C. the prosecution must strictly prove the existence of a complete
and binding marriage, it follows that the ceremonies essential to the-marriage under the personal law of the party concerned must be proved as a
fact. Since the proof of a-marriage is an essential ingredient of an offence u/s 494, R. P. C. the onus lies on the prosecution to Provo the form of
marriage alleged by it. u/s 3 Sub-clause 2 of the Evidence Act, a fact is said to be proved when, after considering the matters before it, the Court
either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it exists. It is, therefore, clear that the prosecution in order to prove the fact that the accused had been married to a
person must prove the actual existence of the fact and no question of presumption can arise under these circumstances. More-over, the marriage of
the Petitioner in the instant case with Mr. Surmun is not an official act which would admit of any presumption under the Evidence Act. In a criminal
case where the onus is on the prosecution to prove its case affirmatively, no question of presumption would naturally arise in respect of facts which
the prosecution has to prove by evidence; nor can it be said that the prosecution has proved a fact merely because the accused has chosen not to
cross-examine a particular witness or because the accused remains silent or gives no defence. It is not for the accused to fill up lacuna left in the
prosecution evidence, by cross-examination. Indeed, if such a presumption is allowed to be drawn by the Courts, it would amount to asking the
accused to prove the prosecution case-a principle which is against the fundamental tenets of criminal jurisprudence. Presumption can certainly be
drawn when existence of certain facts has actually been proved, but existence of the facts themselves cannot be presumed unless the case comes
within the purview of Section 114 of the Evidence Act. We might mention here that it is well settled that matters which are required to be proved
by law cannot be left to time or chance or to cross-examination to be proved.
While dealing with the provisions of Section 32, Clause (5) of the Evidence Act, under which special knowledge-could be presumed under certain
circumstances, their Lordships of the Privy Council pointed out, in AIR 1937 201 (Privy Council) , that before such a presumption could be
drawn, the witnesses must be asked to indicate their source of knowledge and the source of knowledge cannot be left to be disclosed to time,
chance or cross-examination. In this connection their Lordships observed as follows:
The learned trial Judge added to the difficulty of estimating the evidence by permitting witnesses to give their testimony as the matters which could
not be within their own knowledge without first stating the source of their information. Time, trouble and expense would have been saved had
Clause 5, Section 32, Evidence Act, been probably applied and witnesses required to prove the statements relied upon with proper particularity
and with due attention to the requirement that the person making the statement had special means of knowledge.
It cannot rightly be left to time, or chance, or cross-examination to disclose whether a statement has any basis which could give it value or
admissibility. In his judgment the learned trial Judge was at times duly scornful of such evidence and it would have been fairer and less troublesome
to have taken the evidence in accordance with the Act.
In our opinion, the principle enunciated by their Lordships of the Privy Council apply with full force is the question for consideration in the present
case so far as the proof of the performance of essential ceremor as to a marriage are concerned. For these reasons, wherefore, with very great
respect to their Lordships of the Andhra ""Pradesh High Court we are unable to agree with their observations quoted above.
27. We would, therefore, allow this application, set aside the conviction and sentence passed on the Petitioners and acquit them of the charges
framed against them.
28. The rule is accordingly made absolute.
J.N. Bhat, J.
29. I agree.
