Judgment :- 1. In this case the two petitioners who were accused 1 and 5 in C.C. 45 of 1960 on the file of the District Magistrate of Trivandrum were convicted, the first accused under S.494 I.P.C. and the 5th accused of having abetted the offence under S.494 read with S.114 I.P.C. In appeal, the learned Sessions Judge having confirmed the conviction, they have come in revision. The case was that the first accused married the second accused while his first marriage with the complainant was subsisting. The marriage is amply proved and is not disputed. The plea of the accused was that there was no second marriage as spoken to by the prosecution witnesses. 2. In support of the prosecution case P. Ws. 2, 3, 9 and 10 who were present and who witnessed the marriage and P.Ws. 7 and 8 who officiated at the marriage were examined. The learned District Magistrate was not impressed with the evidence of P.Ws. 2, 3, 9 and 10 and did not place any reliance on their testimony. P. W. 7 is the Sreekariam of the Shankumugham temple where the second marriage is stated to have taken place on 7th September 1960. He has stated that several such marriages are solemnised in the temple for the last so many years and that the ceremony consisted of the first accused tying a Thali around the neck of the second accused and the spouses garlanding each other. It is stated that before the marriage, the Thali and the garland were sanctified by performing pooja by P.W. 8 who is the Santhikaran. P.W. 7's evidence is corroborated by the evidence of P.W. 8 who was also present at the marriage ceremony. Both these witnesses were not questioned whether Saptapadi is an essential prerequisite of a valid marriage and whether that was done in the case of other marriages similarly performed at the temple. 3. There is then the application Ext. P-4 presented by the fifth accused before the Superintendent of the Devaswom for sanction to have the marriage performed. Ext. P-5 is the receipt for the remittance of the required fees. Ext. P-6 is the marriage register and Ext. P-6 (a) is the relevant entry evidencing that the marriage had been duly performed. P.W. 7 has sworn that accused 1 and 2 are known to him before and they subscribed their signatures in Ext. Ext. P-5 is the receipt for the remittance of the required fees. Ext. P-6 is the marriage register and Ext. P-6 (a) is the relevant entry evidencing that the marriage had been duly performed. P.W. 7 has sworn that accused 1 and 2 are known to him before and they subscribed their signatures in Ext. P-6 (a) in his presence. The courts below have believed the evidence of these witnesses. I have also scrutinised their evidence and I find that they are thoroughly disinterested witnesses with no axe to grind against the accused and that their evidence could with safety be accepted. The courts below have therefore rightly held that the marriage between accused 1 and 2 was in fact performed in the temple on 7th September 1960. 4. The next question is whether the marriage so performed would make the accused liable for the offence of bigamy under S.494 I.P.C. S.17 of the Hindu Marriage Act (Central Act XXV of 1955) - hereinafter referred to as the Act - treats the bigamous marriage as void and prescribes the punishment for it. Section 17 reads: "Any marriage between two Hindus solemnised after the commencement of this Act is void if at the date of such marriage either patty had a husband or wife living; and the provisions of S.494 and 495 of the Indian Penal Code (XLV of 1860), shall apply accordingly". 5. Though under S.32(5) of the Indian Evidence Act, the statement of a person who had special means of knowledge is relevant in proof of the existence of any relationship by blood, marriage or adoption and S.50 has rendered that opinion as to relationship admissible, the proviso to S.50 makes such opinion insufficient to prove a marriage in proceedings under the Indian Divorce Act or in prosecutions under S.494, 495, 497 or 498 of Indian Penal Code. That would mean that since the second marriage is an essential ingredient of the offence of bigamy, that marriage has to be clearly proved by the prosecution. The question is as to what amounts to the proof of such marriage and when it could be said that there is no proof of marriage. 6. One of the earliest cases on the subject is the decision in Empress v. Pithambar Singh I.L.R. 5 Cal. The question is as to what amounts to the proof of such marriage and when it could be said that there is no proof of marriage. 6. One of the earliest cases on the subject is the decision in Empress v. Pithambar Singh I.L.R. 5 Cal. 566 F.B. There the question was as to what is meant by strict proof of the marriage which is required in a case where the accused is charged with an offence of adultery. Their Lordships were considering the case where the only evidence of the marriage of the woman was the statement of the prosecutor and that of the woman who admitted the marriage. The Full Bench approved the opinion in the referring judgment. It was stated there: "It appears to us that the framers of the Evidence Act have endeavoured, in dealing with this subject, exactly to follow the English law. And in England, there has never been any doubt that, in an indictment for bigamy, the first marriage, or in proceedings founded on adultery, the marriage must be proved with the same strictness as any other material fact". Garth, C.J., delivering the opinion of the Full Bench said: "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 illicit intercourse, and the provisions of the Evidence Act (section 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 women, the fact of the marriage must be strictly proved in the regular way". Their Lordships held that the available evidence of the marriage on record was not sufficient to justify a conviction for adultery. 7. The danger of convicting a person accused of an offence under S.497 I.P.C., on mere assertions of the spouse has been clearly brought out in Empress of India v. Kallu I.L.R. 5 All. 233. Straight, J., following the ruling of the Full Bench in Empress v. Pitambar Singh I.L.R. 5 Cal. 566, observed: "The Judge (Sessions Judge) who tried the case should have required some satisfactory proof independent of the very vague assertions of Durbi and Parbattia to show that the ceremony of marriage, as recognised among Kachis had taken place between them..." 8. Straight, J., following the ruling of the Full Bench in Empress v. Pitambar Singh I.L.R. 5 Cal. 566, observed: "The Judge (Sessions Judge) who tried the case should have required some satisfactory proof independent of the very vague assertions of Durbi and Parbattia to show that the ceremony of marriage, as recognised among Kachis had taken place between them..." 8. In another case, the Allahabad High Court in Queen Empress v. Dal Singh I.L.R. 20 All. 166 had to consider the question whether the evidence of marriage which consisted in the statements of the woman and of the complainant would be sufficient. The Division Bench consisting of Edge, C.J., and Burkitt, J., observed: "In cases of this kind where a false charge may easily be made of enticing away a woman, said to be a married woman, but possibly only a mistress, the court should require some better evidence of the marriage than the mere statement of the complainant and the woman". 9. I will now refer to the decision in Queen Empress v. Subbarayan I.L.R. 9 Mad. 9. In that case a Division Bench of the Madras High Court consisting of Muthuswami Ayyar and Hutchins, JJ., had to consider a case where an accused charged under S.494 I. P. C., was acquitted in appeal relying on the decision in Empress v. Pitambar Singh I.L.R. 5 Cal. 566. Their Lordships interpreted the Full Bench decision of the Calcutta High Court to mean that the fact of marriage must be proved in the ordinary way, i.e., by other more reliable evidence than that of the mere "opinion expressed by conduct of a person who, as a member of the family or otherwise, has special means of knowledge", and they were definitely of the opinion that neither the Full Bench decision of the Calcutta High Court nor that of the Allahabad High Court meant to lay down that a husband or wife is precluded from proving his or her marriage and in a case where none of the witnesses were cross-examined as to the factum or validity of the marriage, and the accused persons in no way impugned its validity, there should be no doubt that the marriage has been sufficiently established. They relied upon the decision in R. v. Inhabitants of Brampton (1808)10 East 282, which clearly laid down that the onus is thrown on the defendant for impugning the validity of the marriage. They also referred to the passages which occur in Archbold Criminal Pleading, Evidence and Practice (1859 Edition) dealing with bigamy where it is stated: "There must be evidence of celebration, as evidence of acknowledgment, or of cohabitation or repute will not suffice". 10. In a later case in Emperor v. Nazir Khan, I.L.R. 36 All.1 referring to both the Calcutta and Madras cases Ryves, J, approved the view taken in the Madras case and concluded: "There is unrebutted evidence in this case of the woman, the husband and their parents describing the marriage, in detail. I think, therefore, in this case the fact and legality of the marriage have been satisfactorily proved". 11. The same view was taken in another case of the Allahabad High Court reported in Emperor v. Budhu I.L.R. 42 All. 401. 12. An illuminating discussion, on whom lies the onus when a marriage is challenged by a party on the ground of non-performance of rites or ceremonies, is contained in Mt. Titli v. Alfred Robert Jones A.I.R. 1934 All. 273. Sulaiman, C. J., who concurred with the separate judgment delivered by Mukerji, J., adverted to the question whether the marriage in dispute was null and void on account of the omission to observe any rules, rites, ceremonies or customs and stated: "The burden would lie on any party who asserts that any such rules, rites, ceremonies and customs were not observed". No doubt this observation arose in a civil case, but I think it applies with equal force to criminal cases also in making out charges of bigamy. 13. The Judicial Committee of the Privy Council in Kashi Nath v. Bhagwan Das A.I.R. 1947 P.C.168, has also re-stated the law enunciated long ago in Inderun Velungypooly v. Ramaswamy Pandia 13 M.I.A. 141 regarding the presumption that arises when a marriage in fact has been proved to have taken place. The observation in the earlier decision is as follows: "Then, if there was a marriage in fact, was there a marriage in law? When once you get to this, namely, that there was a marriage in fact, there would be a presumption in favour of there being marriage in law". The observation in the earlier decision is as follows: "Then, if there was a marriage in fact, was there a marriage in law? When once you get to this, namely, that there was a marriage in fact, there would be a presumption in favour of there being marriage in law". Applying this principle to the case before Their Lordships, Their Lordships held that where a marriage has been duly solemnised and there is a marriage in fact, there would be a presumption in favour of there being a marriage in law. 14. So far as the Calcutta High Court is concerned, we find that the Judicial Committee of the Privy Council has approved in Mouji Lal v. Chandrabati Kumari I.L.R. 38 Cal. 700 P.C. the principle that the established presumption in favour of a marriage also applied to the forms and ceremonies necessary to constitute it a valid marriage and that the necessary or obligatory forms and ceremonies were properly performed could be a matter of presumption if in fact the marriage had taken place. 15. This question has been elaborately considered in a recent decision of the Andhra Pradesh High Court in Padullaparthi Mutyala Paradesi v. Padullaparthi Subbalakshmi 1962 M.L.J. Criminal 91. The head-note reads as follows: "The proof of the Second marriage does not differ from that of the first marriage and the invalidity of the second marriage for any reason does not deprive it of its bigamous character till it is set aside. There is nothing to show that the validity of marriage for non-compliance with the conditions in S.5 of the Hindu Marriage Act is absolutely non est for all purposes. Even marriages which are declared null and void by the application of S.11 of the Act cannot be considered void ab initio or ipso jure, so as to render a child begotten or conceived before the decree is got, illegitimate. Therefore, a marriage which could be revoked or dissolved because of its imperfectness only at the instance, initiation or impeachment by any party, cannot be considered as invalid or void for all purposes even from the inception. The subsistence of the second marriage between the parties whose intention to have it performed and who go through a form of it and never attempt to question it, could be definitely taken as proof of that marriage. The subsistence of the second marriage between the parties whose intention to have it performed and who go through a form of it and never attempt to question it, could be definitely taken as proof of that marriage. Such a case will come under S.494, Penal Code, as one where the husband or wife married again having already a spouse, although when the position after a decree for dissolution is obtained for proved infraction of the provisions of S.7 may be on a different footing. There is no special responsibility thrown on the prosecution to prove that the second marriage was completed by taking the seventh step when proof of it will be complete with the play of presumption juris which is always rebuttable". 16. The learned counsel for the petitioners referred to S.7 of the Act. It reads: 7. (1) A Hindu marriage may be solemnised 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 sacred fire), the marriage becomes complete and binding when the seventh step is taken." And it was argued that a marriage which has not been proved to be completed by the taking of seven steps is void and not binding on the parties. As far as I could see, the Act does not prescribe the manner or method of solemnising a Hindu marriage and Saptapadi is not seen to be a pre-requisite of a valid marriage. S.7 only says that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies and if such rites and ceremonies include Saptapadi, the marriage becomes complete only when the seventh step is taken. It does not, therefore, render the marriage without Saptapadi void. The marriage may be capable of being dissolved if Saptapadi is necessary and has not been taken. But the burden will be on the person who seeks to get the marriage dissolved on this account. 17. It does not, therefore, render the marriage without Saptapadi void. The marriage may be capable of being dissolved if Saptapadi is necessary and has not been taken. But the burden will be on the person who seeks to get the marriage dissolved on this account. 17. It is also important to notice that S.11 of the Act says that any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of S.5. Likewise S.12 states on what grounds the marriage shall be voidable. In both these cases, a marriage rendered incomplete for the reasons stated in S.7(2) has not been considered as either void or voidable. I am therefore, unable to accede to the contention of the learned counsel that S.7 prescribes a special rule of evidence which enjoins upon the prosecution to establish in all cases by direct evidence the taking of the seventh step by the bridegroom and bride before the sacred fire and that in the absence of such evidence the complainant should be considered to have failed to prove a valid second marriage. 18. In this case the evidence of D.W.1 shows that Saptapadi is an essential rite to be performed for a valid marriage. It was suggested to him that even his relations had been married from the Shankumugam temple in the manner done by accused 1 and 2, but he has neither denied nor admitted it. The courts below have carefully considered his evidence and have not chosen to believe his evidence. I am not tempted to disagree from the conclusions reached by them. When there is celebration or solemnisation of a marriage which has been intended by the parties to be binding on each other and the form of it has not been wholly opposed or against the customs of the community or the caste to which the parties belong, the presumption that the ceremonies were complete and the marriage is legal arises and the presumption of the marriage can be rebutted only by strong, satisfactory and conclusive evidence. No such clinching evidence has been adduced by the defence. The conviction of the accused is, therefore, correct and calls for no interference. 19. No such clinching evidence has been adduced by the defence. The conviction of the accused is, therefore, correct and calls for no interference. 19. Regarding the sentence, the learned counsel for the petitioners submitted that in awarding the sentence, the District Magistrate has been carried away by the fact that the first accused had executed a settlement deed Ext. P-3 prior to the second marriage transferring all his properties to his father and that was with intent to rob P.W.1 and their children of the rights in the property and that the sentence awarded is unduly harsh. While not conceding that the sentence is so grossly excessive as to merit interference, I feel that in the peculiar circumstances of this case, interests of justice would be sufficiently met by reducing the sentence of imprisonment to the period already undergone and confirming the order of fine. In the result, the conviction of accused 1 and 5 is confirmed, but their sentence is reduced to the period of imprisonment already undergone. The sentence of fine of Rs. 200 awarded to the first accused and Rs. 100 awarded to the fifth accused will stand. With this modification, the revision petition is dismissed. Dismissed.