Mrs. Alphonsa v. Paul Sankar and others — 1977 DIGILAW 34 (MAD)

Judgment.- This is an appeal preferred by the appellant-complainant for setting aside the orders of acquittal of the four respondents who are accused Nos. 1 to 4, passed by the learned Sub-Divisional Judicial Magistrate, Nagapattinam in C. C. No. 54 of 1975. The appellant herein has filed a private complaint against seven persons including respondents Nos. 1 to 4 herein stating that they had committed the offence punishable under section 494, Indian Penal Code read with section 17 of the Hindu Marriage Act and section 494, Indian Penal Code, read with section 109, Indian Penal Code. 2. The facts briefly stated are is follows: The appellant Mrs. Alphonsa is a Christian by birth. She and the first respondent Sankaranarayanan who was a Hindu by birth, got married under the provisions of the Special Marriage Act on 26th August, 1970 before the Registrar of Marriages at Chidambaram as evidenced by Exhibit P-1, the certificate of marriage. After the registration of the marriage, according to the appellant, the first respondent her husband voluntarily expressed his inclination to become a Christian on his own conviction prompted by interest of their family life, and accordingly he was baptized in the Cuddalore Church and thereby he became a convert to Christianity assuming name Paul Sanker. He had been observing all the customs and regulations of the Christian religion thereafter and that on the expressed desire and consent of the first respondent, the marital tie of the appellant and the first respondent was solemnized as per Christian religion, rites and customs on 28th September, 1973 at Velanganni Church by the holy priest. The first respondent had also signed the marriage register maintained in the said Church on that date in token of the said solemnization. While so the first respondent contracted a second marriage with one Kayalvizhi, the second respondent in the Kalyanamandapam of Swamimalai temple on 7th October, 1973 according to the Hindu rites and ceremonies and the regulations of the said temple. Hence the appellant laid the complaint for the offence of bigamy against the four respondents and three others who were since discharged. 3. The appellant examined 5 witnesses including herself and marked Exs. P-1 to P-9 on her side. On the side of the respondents two witnesses were examined and Exs. D-1 to D-4 were marked. Hence the appellant laid the complaint for the offence of bigamy against the four respondents and three others who were since discharged. 3. The appellant examined 5 witnesses including herself and marked Exs. P-1 to P-9 on her side. On the side of the respondents two witnesses were examined and Exs. D-1 to D-4 were marked. The appellant herself as P.W. 1 has spoken to the averments made in the complaint and stated that her husband, the first respondent was a Christian by conversion and their m?rriage which took place on 26th August, 1970 before the Registrar of Marriages at Chidambaram, was solemnized subsequently on 7th October, 1973 at Velanganni as per Christian rites and customs and while that marriage between herself and the first respondent is still subsisting, the first respondent has contracted the second marriage with the second respondent and thereby he has committed the offence punishable under section 494, Indian Penal Code. P.W. 2, namely Dr. Sarojini Giri, has deposed that she and her husband attended the marriage of P.W. 1 along with the first respondent on 26th August, 1970 and that she ha 1 signed in the register the original of Exhibit P-1 as a witness. P.W. 3, who is the father of the appellant (P.W. 1) corroborates the evidence of the appellant and states that the first accused (the first respondent) converted to Christianity after the marriage with his daughter P.W. 1 and the said marriage was subsequently solemnized on 28th September, 1973. P.W. 4 is a clerk of the Swamimalai Devasthanam. P.W. 5 is the Purohit of the said temple. Exhibit. P-9, the carbon copy of the marriage form, maintained at the said Devasthanam Office was marked through P.W. 4. He has stated that on 7th October, 1973 between 6-00 a.m. and 7-30 a.m. P.W. 5 performed the marriage of one P. Sankaranarayanan with Kayalvizhi. He also marked Exhibit P-2, a true copy of the marriage form No. 1588. He has sworn to the fact that he performed the marriage between the first and the second respondents in the Kalyanamandapam of the temple on 7th October, 1973 in accordance with the Hindu rites and the temple regulations observing all Hindu religious ceremonies. He identified both the respondents before the trial Court. 4. He has sworn to the fact that he performed the marriage between the first and the second respondents in the Kalyanamandapam of the temple on 7th October, 1973 in accordance with the Hindu rites and the temple regulations observing all Hindu religious ceremonies. He identified both the respondents before the trial Court. 4. The first respondent when questioned with reference to the incriminating circumstances appearing against him in the evidence, has stated that he married the appellant on complusion,but would deny the second marriage with the second respondent. Of the witnesses examined, on the side of the respondents, D.W. 1 who was then working as a Head clerk in Veeranam Project at Tindivanam has stated that the first respondent was working in his office as a Junior Engineer, that he and the first respondent worked on 7th October, 1973 from 8-30 a.m. and that the first respondent prepared the plan Exhibit D-5 on that date. D.W. 2, Gunasekaran who was then the Junior Assistant in the office of the Veeranam Project at Maduranthagam has stated that all the records including Exhibit D-5 were received by his office at Maduranthagam from Tindivanam and that Exhibit D-5 contains the signature of the first respondent and one Durairaj. The second and third respondents had denied any knowledge of the marriage of the first respondent with P.W. 1 and would further say that no such marriage between the second and the first respondent took place as spoken to by P.W. 4. The 4th respondent could not give any answer to the question about the marriage of P.W. 1 with the first respondent and the solemnization of the marriage in the temple. 5. The learned Magistrate after scanning the evidence and scrutinising the documents filed, has come to the conclusion that the first respondent had married the appellant lawfully under the provisions of the Special Marriage Act on 26th August, 1970 and that the marriage between the first and the second respondent in Swamimalai temple was celebrated on the 7th October, 1973. But the said marriage is not a Valid one, according to the law applicable to both parties and the said contract of the second marriage will not be void by reason of its taking place during the life time of P.W. 1 so as to attract section 494, Indian, Penal Code and consequently acquitted the accused under section 248(1), Criminal Procedure Code. Hence this appeal. 6. Mr.V.A.F. Coelho, learned Counsel for the appellant challenges the judgment of the lower Court contending that the respondents have committed the offence as charged since the first respondent while his marriage with his first wife namely the appellant herein is still subsisting in law, has married the second respondent as per the Hindu rites and customs ably aided by respondents 3 and 4. He would further submit that the first respondent by entering into the Swamimalai Devasthanam, has re-converted to Hinduism and has married the second respondent according to the Hindu rites, and therefore the provisions of the Hindu Marriage Act are attracted and the offence under section 494, Indian Penal Code, read with section 17 of the Hindu Marriage Act is satisfactorily established by the appellant-complainant and the judgment of the lower Court that the marriage of the first respondent with the 2nd respondent is not a valid one according to the law applicable to both parties, suffers from a manifest illegality. 7. Before going into the question of law involved in this case,I shall now deal with the aspect as to whether the first respondent was a Christian before he contracted the alleged second marriage. It is not in dispute that the first respondent was a Hindu by birth till he was baptized in the Cuddalore Church and converted to Christianity. P.Ws. 1 to 3 have categorically testified to the above fact and asserted that after the first respondent converted to Christianity, the marriage which took place under the Special Marriage Act, was solemnized by a holy priest of the Velanganni Church on 28th September, 1973 and the first respondent had signed the register maintained at the Church in token of the solemnization of the marriage. This fact has not been repudiated by the first respondent in his 313, Criminal Procedure Code. He did not put any suggestions to P.Ws. 1 to 3 in the course of their cross-examination. It is seen from the Exhibits marked that the first respondent has now filed a petition for divorce under section 27(b) of the Special Marriage Act of 1954 against the appellant herein before the District Judge, South Arcot at Cuddalore in O.P. No. 149 of 1973, the copy of which is marked as Exhibit P-6 in this case. It is seen from the Exhibits marked that the first respondent has now filed a petition for divorce under section 27(b) of the Special Marriage Act of 1954 against the appellant herein before the District Judge, South Arcot at Cuddalore in O.P. No. 149 of 1973, the copy of which is marked as Exhibit P-6 in this case. Exhibit P-7 is the counter filed by the appellant herein in which the appellant in unequivocal terms has stated that the first respondent was baptized and converted to Christianity and he has also beep observing all the customs and regulations of the Christian religion thereafter and that their marriage was solemnized at the Church. The first respondeat by his conversion has assumed the name Paul Sankar, though he was having the name Sankaranarayanan while he was a Hindu. This piece of evidence also has not been challenged by the first respondent. On the other hand, I find from the address given in the statement recorded under section 313, Criminal Procedure Code, the name of the first respondent as Paul Sanker alias Sankaranarayanan. From the above stated facts, it is clear to one’s mind that the first respondent who was a Hindu by birth has embraced Christianity subsequent to the marriage with the appellant who is a Christian lady and convened himself to that religion, thus becoming a Christian by conversion and lived in that religion. 8. The learned Counsel for the first respondent Mr.T.S. Arunachalam, does not in fact dispute that the first respondent was living with the appellant-complainant as a Christian by conversion. 9. In support of the conclusion of the lower Court, Mr.T.S. Arunachalam, submitted that even assuming, but not-conceding that the first respondent married the second respondent in Swamimalai Temple there is nothing to show that the first respondent was actually re-converted to Hinduism and had abandoned Christianity and that by no stretch of imagination it can be said that he fad relapsed into Hinduism after having given up Christianity at the moment when he entered the temple or at the time when he preformed the Hindu rites at the time of the second marriage. Mr.V.A.F. Coelho, resisted the argument of the learned Counsel for the first respondent and relying on a decision reported in Emperor v. Lazar 1 , wherein a Division Bench of this Court consisting of Mr. Justice Benson and Mr. Mr.V.A.F. Coelho, resisted the argument of the learned Counsel for the first respondent and relying on a decision reported in Emperor v. Lazar 1 , wherein a Division Bench of this Court consisting of Mr. Justice Benson and Mr. Justice Wallis, held that a native Christian, who having a Christian wife living, marries a Hindu woman according to the Hindu rites without renouncing his religion, is guilty of an offence under section 494, Indian Penal Code, would submit firstly that even if the first respondent has not apostated Christianity he must be found guilty of the offence under section 494, Indian Penal Code, since there is no recognized form of re-conversion into Hinduism and secondly in the instant case inasmuch as the first respondent had entered the Hindu Temple, namely Swamimalai Temple and performed his second marriage by observing all Hindu rituals and accepting the performance of the marriage by a Hindu purohit he must be construed that he had relapsed into Hinduism by giving up Christianity and therefore the second marriage is one performed as contemplated under section 7 of the Hindu Marriage Act of 1955 so as to attract the requirements of section 494, Indian Penal Code. 10. A person contracting a second marriage during the lifetime of the husband or wife who were already lawfully married and whose marriage was then subsisting is liable to be punished for bigamy under section 494, Indian Penal Code, if the following three essential ingredients, (a) the lawfulness of the first marriage; (b) its subsistence; and (c) prohibition of the second marriage during the subsistence of the first marriage, which is void by reason of its taking place and upon which depends the criminality of the accused under this section, are fulfilled. In other words, the section requires the existence of the first wife or the husband when the second marriage is celebrated which marriage is being void by reason of the subsistence of the first marriage according to the law applicable to the person violating the provisions of the section. 11. This Court once held in Michael’s case1, and in another case reported in (1866)3 M.H. C.R. App. VII that a Hindu, converting to Christianity and then re-converting to Hinduism and marrying a Hindu woman, cannot be convicted on the ground that he has another wife living with whom he married while he was a converted Christian. 11. This Court once held in Michael’s case1, and in another case reported in (1866)3 M.H. C.R. App. VII that a Hindu, converting to Christianity and then re-converting to Hinduism and marrying a Hindu woman, cannot be convicted on the ground that he has another wife living with whom he married while he was a converted Christian. This was so held on the ground that the Hindu Law as it stood then, allowed polygamy on the part of a husband. 12. In Emperor v. Lazar2, which was relied on by the learned Counsel for the appellant, a Division Bench of this Court without accepting the ruling in (1866) 3 M.H.C.R. App. VII held that the accused was guilty of an offence punishable under section 494, Indian Penal Code. But subsequently in Emperor v. Antony3, dissented from the observation in Lazar’ case2, and followed the principle laid down in (1866)3 M.H.C.R. App. VII and observed that a Hindu convert marrying a Christian woman and then during the lifetime of his Christian wife reverting to Hinduism and marrying a Hindu woman in accordance with the rites of the class to which the parries belong, cannot be said to have committed the offence of bigamy. 13. Panchapakesa Iyer, J., in Marthamma v. Munuswamy4, has agreed with the view taken by this Court in Empero v. Antony3. 14. Now, the system of polygamy is completely given a go-by by the introduction of the Hindu Marriage Act, (hereinafter will be referred to as the Act). Clause (1) of section 5 of this Act introduces monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion of all others. It may be noted that in the State of Tamil Nadu, by the enactment of the Madras Hindu (Bigamy Prevention and Divorce) Act of 1949, the system of monogamy was introduced by making the bigamous marriage punishable. 15. Section 4 of the Act reads as follows: 4. Save as otherwise expressly provided in this Act- (a) any text, Rule or interpretation of Hindu Law or any custom or usage as part of that law inforce immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. Save as otherwise expressly provided in this Act- (a) any text, Rule or interpretation of Hindu Law or any custom or usage as part of that law inforce immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. This section repeals in effect all existing laws, whether in the shape of enactments or otherwise,which are inconsistent with this Act. The Act practically supersedes the Rules of the Law relating to marriage contained in any Central or State Enactment and any other law in force immediately before it came into operation by enacting that all such law shall cease to have effect in so far as they are inconsistent with any provisions contained in this Act. 16. Section 17 of this Act which is a penal section, says: “Any marriage between two Hindus solemnized after the commencement of this Act is Void if at the d ate of such marriage either party had a husband or wife living; and the provisions of sections 494 and 496 of the Indian Penal Code (XLV of 1860) shall apply accordingly.” Therefore in view of the change of legislation by the introduction of the Hindu Marriage Act, the decision of this Court in Lazar’s case1, cannot be said to be applicable to the facts of the present case. Hence the first contention of the learned Counsel for the appellant fails. 17. The second contention of the learned Counsel for the appellant is that inasmuch as the first respondent has entered into a Hindu temple, viz., Swamimalai Temple and performed his second marriage by observing all Hindu rituals and accepting the performance of the marriage by a Hindu purohit, it must be construed that he had relapsed into Hinduism by giving up Christianity, and therefore, the second marriage is one performed as contemplated under section 7 of the Hindu Marriage Act of 1955 so as to attract section 494, Indian Penal Code. 18. Section 7 of the Act reads thus: 7.(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. 18. Section 7 of the Act reads thus: 7.(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 Saptapati (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. In order that an offence under section 494, Indian Penal Code may be committed, it is necessary at least that all theceremonies which are necessary to be performed in order that a valid marriage might take place, ought to be performed and ordinarily all the ceremonies would amount to a valid marriage, but for the fact that the marriage becomes void on account of the existence of a previous marriage. 19. The word ‘marriage’ used in section 494, Indian Penal Code means some form of marriage known to or recognized by personal law of the parties concerned. Since the system of monogamy is enjoined by the personal law of Christians and by the Hindus after the commencement of the Hindu Marriage Act, the persons professing such religions are not at liberty to go through the second marriage during the life of the legally wedded first wife or the husband without committing the offeree under section 494, Indian Penal Code. 20. Before the enactment of the Hindu Marriage Act, there was a sharp conflict of opinion with regard to the form and validity of the second marriage so as to attract the provisions of section 494, Indian Penal Code. A Division Bench of the Calcutta High Court in Swapna Mukherjee v. Basanta Ranjan,1 was of the view that in order that a person may be convicted of an offence of bigamy, under section 494, Indian Penal Code the second marriage must be a form of marriage recognized by law otherwise it would be simply an adulterous union and it will not be hit by the provisions of section 494, Indian Penal Code. On the facts of that case, the Court further held that "where A, a born Christian and having a Christian wife living, marries once again a Hindu woman, the marriage being celebrated according to Hindu rites, the subsequent marriage between A and the Hindu woman is a void marriage not because of the existence of the Christian wife of A but because of the fact that there cannot be a valid form of marriage between an Indian Christian and a Hindu woman celebrated according to the Hindu rites." 21. Mr. Gour, in his Penal Law of India 9th Edition, Volume No. 4, page 3959 submitted his opinion stating that the conclusion of the Calcutta High Court in the above said case is not warranted by the language of the section itself. According to him, the expression ‘marries’ in any case in which such marriage is void by reason of its taking place during the life of such husband or wife "merely means that the person who marries a second time during the life of his or her first spouse, would be punished under section 494, Indian Penal Code, only if such second marriage is not recognized by the personal law by which she or he is governed." 22. A Division Bench of the Punjab High Court in Mst. Payari v. Fakir Chand2, while disagreeing with the view taken by the Calcutta High Court in Swapna Mukherjee’s case1, held that some defect in form or invalidity on the ground of consanguinity, religion, etc. does not defeat the purpose for which section 494, Indian Penal Code intended, and that the section does not require that the second marriage with the person concerned must otherwise be valid according to law. 23. Now, I shall deal with the meaning of the word ‘marries’ occurring in section 494, Indian Penal Code. "Whoever............marries" must necessarily mean "whoever.. .. marries validly" In other words, the word ‘marries’ appearing in section 494, Indian 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 the personal law of the parties; otherwise, there would hardly be any difference between concubinage and a lawful marriage. But the form of marriage which this section contemplates is a form which is recognized by the personal law of the parties; otherwise, there would hardly be any difference between concubinage 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 except that it is made a ground for seeking maintenance by the wife on the ground as contemplated in Explanation of sub-section (3) of section 26, Criminal Procedure Code, 1973, which Explanation says that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered a just ground for his wife’s refusal to live with him or as a ground seeking a decree for divorce under section 13(i) of the Hindu Marriage Act, after the substitution of this sub-section by Act LXVIII of 1976 or for judicial separation under section 10 of the said Act. 24. Now, it is well-settled by the decision of the Supreme Court reported in Bhaurao Shankar Loknande v. The State of Maharashtra3, which reads as follows: "Prima facie, the expression ‘whoever . . marries’ in section 494, must mean ‘whoever......marries validly’ or ‘whoever......marries and whose marriage is a valid one’. If the marriage is not a valid one according to the law applicable to the parties, noquestion of its being void by reason of its taking place during the life of the husband of wife of the person marrying arises. If the marriage is not a Valid marriage it is no marriage, in the eye of law. The bare fact of a man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife" In Kanwal Ram v. H.P. Administration1, also the above said principle has been reaffirmed. 25. 25. Accepting the above said rulings, the Supreme Court once again came to the same conclusion in Priya Bala v. Suresh Chandra2 that,- "the effect of the decision, in our opinion, is that the prosecution has to prove that the alleged second marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through by the parties and the said marriage must be a valid one according to law applicable to the parties " Further in the same decision, their Lordships have stated- "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 section 494, Indian Penal Code, and that in order to hold that the second marriage has been solemnized so as to attract section 17 of the Hindu Marriage Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form." 26. Thus the position is now set at rest that the second marriage should be proved to have been duly performed in accordance with the personal law applicable to the parties and that merely going through some form of marriage without regard to the personal law will not make that ‘marriage’ a valid marriage within the meaning of the word ‘marries’ occurring in section 494, Indian Penal Code. 27. To constitute a valid marriage as per section 5 of the Hindu Marriage Act, it must be shown that the marriage took place between two Hindus subject to the conditions enumerated therein. 28. Then coming to the question that the first respondent has apostated Christianity and relapsed into Hinduism by entering the temple and accepting the ceremonies of the Hindus at the time of the second marriage, we have to see whether he could be construed as a Hindu by his above conduct. 29. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith, does not convert him into a Hindu. Nor is a bare declaration that he is a Hindu sufficient to convert him into Hinduism. 29. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith, does not convert him into a Hindu. Nor is a bare declaration that he is a Hindu sufficient to convert him into Hinduism. If there is a bona fide intention to convert him into Hindu faith accompanied by conduct, that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effect conversion. Vide: Perumal v. Ponnuswami3. 30. A Hindu by birth who has renounced Hinduism can revert back to it either after performing the religious rites of expiation and repentence as observed in Kuzum Kumari Roy v. Satya Ranjan Das4 or even without a formal ritual or reconversion when he is recognized as a Hindu by his community, Vide: Durga Prasada Rao v. Sudarsanaswami5, which view has been subsequently reiterated in Rajagopal v. Arumugam6. 31. Section 2 of the Hindu Marriage Act, which deals with the person to be covered by the Act by its explanation (c) to sub-section (i)(c) reads: "Any person who is a convert or re-convert to the Hindu, Buddist, Jain, Sikh religion......" Therefore, it is now made clear by the statutory enactment that one may be a Hindu either by birth of by conversion or re-conversion. 32. Varadachariar, J., in a case reported in Guruswamy Nadar v. Irulappa Konor1, has pointed that no particular expiatory ceremony is required for a person to convert to that faith. It is enough if the community is prepared to receive back the convert into its fold. 33. A similar question arose before a Division Bench of this Court in Durga Prasada Rao v. Sudarsanaswami2, regarding the test to be applied about the conversion of a Indian Christian to Hinduism. Mockett, J., agreeing with the view of Varadachariar, J., had stated: "I entirely agree that no gesture or declaration can change a man’s religion. 33. A similar question arose before a Division Bench of this Court in Durga Prasada Rao v. Sudarsanaswami2, regarding the test to be applied about the conversion of a Indian Christian to Hinduism. Mockett, J., agreeing with the view of Varadachariar, J., had stated: "I entirely agree that no gesture or declaration can change a man’s religion. But equally, I cannot see why, when on the facts it appears that a man who changed his religion and was accepted by his co-religionists as having changed his religion and lived, died and was cremated into that religion, the absence of mere formality should negative what is the actual fact." Krishnaswami Ayyangar J., in the same case in his separate judgment has pointed on that where on the evidence it is shown that in fact the Hindu Christian returned to Hinduism after contracting a second marriage during the life-time of his first wife and remained as a Hindu and was accepted as such by his community and co-religionists without demur and no evidence is let in to show that the caste insisted or many rituals in such matters, the Court cannot treat him as having continued to remain Christian and his second marriage is invalid on account of the absence of a ceremony or re-conversion or any other expiatory ceremony and that the society might get into a state of flux and confusion if expiatory ceremonies are not insisted upon, is sc?rcely a sound reason. 34. A Division Bench of this Court in Seethalakshmi Ammal v. Ponnuswamy Nadar3 following the dictum laid down in Morarji v. Administrator-General4, and Guruswami Nadar v. Irulappa Konar1, and Durga Prasada Rao’s case2, has made the following observation: "Thus, on a review of the entire case law, it seems to us that Hindu law would apply even to converts to Hinduism and it is not necessary for its application that a person should be a Hindu by birth. Hindu law applied not only to a person who is Hindu both by birth and religion but also to a person who is Hindu only by religion. Hindu law applied not only to a person who is Hindu both by birth and religion but also to a person who is Hindu only by religion. But as Venkatasubba Rao, J., said, the mere fact that a non-Hindu professes a theoretical allegiance to the Hindu faith or is an ardent admirer and advocate of Hinduism does not make him a Hindu, Long residence in India, abdication of the original religion by a clear act of renunciation adopting the Hindu religion by a formal conversion thereto, assuming a Hindu name, marrying a Hindu according to Hindu rules and taking to the Hindu mode of life are proofs that a non-Hindu has become a Hindu. But it is not necessary that every one of these tests should be fulfilled. It is also not necessary that there should be established a formal conversion to Hinduism. Since there are no ceremonies prescribed in the Smritis for conversion to the Hindu religion, one has to look to the sense of the community into which the convert is alleged to have been left in and if the members of that community are prepared to receive him has one of themselves, the fact that there has been no purificatory or expiatory ceremonies does not militate against that person being treated in law as a member who has been admitted into the Hindu fold“. This decision was challenged before the Supreme Court which in turn confirmed the view expressed by this Court and dismissed the appeal. Vide: Perumal v. Ponnuswami1. 35. The Supreme Court in Rajagopal v. Arumugam2, took the view that in order to recognize one as a Hindu that person must start professing the Hindu religion and then explained the word ‘profess’. Their Lordships approved the ruling made in Punjab Rao v. D.P. Meshram3, which ruling reads thus: “It seems to us that the meaning ‘to declare one’s belief in, as to process Christ’ is one which we have to bear in mind while construing the aforesaid order, because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of one’s belief, must necessarily mean a declaration in such a way that it would be known to those whom it may interest. It would thus follow that a declaration of one’s belief, must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion, he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word ‘profess’ in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu or Sikh religion.” Further, their Lordships in Rajagopal’s case2, approving the principle laid down in Durga Prasada Rao’s case4 and the view expressed by Varadachari, J., in Guruswamy Nadar’s case5 have observed: “a re-convert to Hinduism can become a member of the caste if the caste itself as a Supreme Judge, accepted him as a full member of it.” 36. In unabridged edition of Webster’s Third New International Dictionary of the English language, the term ‘Hinduism” has beer defined as meaning “a complex body of social, cultural, and religious beliefs and practices evolved in and largely confined to the Indian sub-continent and marked by a caste system, an outlook tending to view all forms and theories as aspects of one eternal being and truth, a belief in ahimsa, karma, dharma, samsara, and moksha, and the practice of the way of works, the way of knowledge, or the way of devotion as the means of release from the round of rebirths: the way of life and form of thought of a Hindu.” 37. In Encyclopaedia Britannica (15th edition), the term “Hinduism” has been defined as meaning “the civilization of Hindus”. 38. In a recent decision reported in Commissioner of Wealth-tax v. R. Sridharan6 the Supreme Court has deeply gone into the question and finally decided on the issue raised before it that “Legitimate children of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu Law.” 39. 38. In a recent decision reported in Commissioner of Wealth-tax v. R. Sridharan6 the Supreme Court has deeply gone into the question and finally decided on the issue raised before it that “Legitimate children of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu Law.” 39. The sum and substance of the above discussion in the light of the decisions cited above are that a person may be a Hindu by birth, by conversion or by reconversion and that in case of conversion or reconversion, there must be a bonafide intention to convert into Hindu faith accompanied by conduct. That is to say that he must embrace Hinduism and profess the same by following the cultural and spiritual traditions of Hinduism and taking to the Hindu modes of life. These are the proofs to say that a non-Hindu has become a Hindu. No formal ceremony of purification or expiation is necessary to effect conversion, because ultimately it is only the sense of the community of a particular religion which receives him into its fold and accepts him as a co-religionist without any demur that predominantly determines the issue. 40. The case of the complainant appellant is that the alleged second marriage took place in the Kalyanamandapam of Swamimalai temple and that the said marriage was performed by a purohit of the temple. P.W. 5, the purohit, says that the said marriage was solemnized as per the Hindu rites by performing yagnam The complaint has been filed for the offence under section 494, Indian Penal Code, read with section 17 of the Hindu Marriage Act. Therefore when the complainant comes forward with a definite case that the alleged second marriage was performed according to the Hindu rites and ceremonies it is for the complainant to prove that the said marriage was solemnized by performing the necessary ceremonies and in due form. Section 5 of the Hindu Marriage Act deals with the condition for solemnization of a valid. Hindu marriage whilst section 7 of the Act, deals with the ceremonies that are to be performed in such marriage. 41. To constitute a valid marriage under section 7 of the Act, the marriage must be shown to have been celebrated or performed with proper ceremonies and in due form. Hindu marriage whilst section 7 of the Act, deals with the ceremonies that are to be performed in such marriage. 41. To constitute a valid marriage under section 7 of the Act, the marriage must be shown to have been celebrated or performed with proper ceremonies and in due form. Mereby going through certain ceremonies with the intention that the parties to be taken to be married will not make the ceremonies prescribed by or approved by any established custom: Bhaurao Shankar Lokhande v. The State of Maharashtra1 and Priya Bala v. Suresh Chandra2. The principle laid down in Bhaurao’s case1 has been reiterated in the decision in Kanwal Ram v. H.P. Administration3 wherein their Lordships stated that the marriage is not proved unless the essential ceremonies required for its solemnization are proved to have been performed. I think I need not swell my judgment by citing all the decisions on this point. 42. Now I shall discuss the evidence in the light of the observations made above. Regarding the fulfilment of the first condition that the marriage should be solemnized between two Hindus, we have to see whether the first accused should be construed as a Hindu by reconversion. There is absolutely no evidence on the side of the complainant that the first accused had apostated Christianity and professed Hinduism by embracing the same even before the second marriage was thought of. On the other hard, it is the specific case of the complainant that till 6th October, 1973 he was professing only Christianity and on the next day, namely 7th October, 1973, he married the second accused in the Kalyanamandapam of Swamimalai Temple. Thus there is no time lag for reconversion to Hinduism by the first appellant. Similarly, there is no evidence that the first accused has ever observed any Hindu ceremony or followed any spiritual ideas before he entered the temple. In the absence of such unequivocal intention in clear and express term, the first accused, on the evidence available on record in the instant case, cannot be said to have abandoned Christianity and reconverted to Hinduism. 43. It transpires from Exhibit D-1 dated 15th September, 1970, marked on the side of the respondents, which is an inland letter purported to have been written by one Shanthi to the first accused that there was exchange of love between the first accused and the said Shanthi. 43. It transpires from Exhibit D-1 dated 15th September, 1970, marked on the side of the respondents, which is an inland letter purported to have been written by one Shanthi to the first accused that there was exchange of love between the first accused and the said Shanthi. In that letter she has written that she was longing for a marriage to be celebrated between them. The case of the first accused is that this letter, though denied by P.W. 1 was written by P.W. 1 herself. However, it is evident that the first accused was having affairs with one lady by name Shanthi. 44. Admittedly, the marriage between P.W. 1 and the first accused was solemnized under the Special Marriage Act, even on 26th August, 1979, i.e., much earlier to 15th September, 1970, the date of the letter Exhibit D-1 If P.W. 1 had written this letter after the solemnization of the marriage before the Registrar on 26th August, 1970, she would not have stated in that letter that she was very eager to go on with the marriage in the common form. Be that as it may, the fact remains that the first accused who was 27 years of age at the time of the marriage in 1970, seems to have been more infatuated with love and married P.W. 1 before the Registrar of Marriages and then converted himself to Christianity and lived in Christian society. But within a period of three years, he once again changed his mind and went with the alleged second marriage with the second accused, namely Kayalvizhi who was aged about 18 at that time. Therefore, the reason for the reconversion is not to profess the lofty ideologies of Hinduism, but with some motive-to use the language of Panchapakesa Ayyar, J., in Maruthamma’s case1: “Of course the religious motive did not operate either for the conversion or for the reconversion and only the woman motive operates.” In the light of the above discussion, I hold that the alleged second marriage between the first accused and the second accused is not a marriage solemnized between two Hindus. 45. 45. When coming to the next element whether the marriage was celebrated in accordance with the Hindu rites, Mr.T.S. Arunachalam, learned Counsel for the first respondent would urge that even if such a marriage is permissible on reconversion, there is nothing to show that all the religious ceremonies which are essential for the performance of a Hindu marriage have been followed. He would say that Sapthapathi is an essential rite to be performed for solemnization of the marriage among Hindus when the marriage is solemnized as per Hindu rites, and that in the instant case as there is no evidence that this essential rite has been performed, the marriage cannot be construed as one performed with in the meaning of section 5 of the Hindu Marriage Act. 46. P.W. 5 is a purohit who testified that he has officiated at the marriage of the first accused and the second accused. But he it not specific regarding the form or mode of the marriage and about the ceremonies performed by him except saying that there was homam and that the marriage was celebrated according to the Hindu rites. The other evidence adduced is also not much useful to show that ceremonies, according to Hindu rites, were performed. Similarly, there is lack of evidence as to whether the rites and ceremonies included Sapthapathi or what are the customary rites and ceremonies of the parties thereto. It has not been proved that there is a custom prevalent among the parties to the second marriage that the essential ceremonies do not include Sapthapathi for the completion of the solemnization of the marriage. I have no hesitation to hold that the firs i accused and the second accused entered into a form of marriage on 7th October, 1973 in the Kalyanamandapam of Swamimalai Temple. But as I have indicated above, the evidence adduced on the side of the complainant is no enough to warrant a conclusion that the said marriage was celebrated as per the Hindu rites and also as per the Hindu Marriage Act observing all essential formalities necessary for a valid marriage. So on this point also, the case of the prosecution fails. Therefore, the quintessence of my above discussion is that the alleged second marriage between the first accused and the second accused is not one performed between two Hindus and. So on this point also, the case of the prosecution fails. Therefore, the quintessence of my above discussion is that the alleged second marriage between the first accused and the second accused is not one performed between two Hindus and. that the said marriage was not solemnized as per section 5 of the Hindu Marriage Act so as to attract section 17 of the Act. 47. Mr.V.A.F. Coelho, appearing for the appellant would submit that there is evidence regarding the use of garlands. The bride and bridegroom might have exchanged garlands. On this piece of evidence, it was contended by the learned Counsel that the marriage could be construed as a valid marriage as per section 7-A of the Act which has been inserted by the Tamil Nadu Amended Act XXI of 1967, known as Hindu Marriage (Madras Amendment) Act, 1967. This section 7-A of the Tamil Nadu Amended Act, deals with the special provision regarding Suyamariyathai and Seerthirutha marriages. As per this section, the marriage can be solemnized in the presence of relatives, friends or other persons, (a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or (b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or (c) by the tying of the tali, and that notwithstanding anything contained in section 7 of the Act (Central), but subject to the other provisions of this Act, all marriages to which this section 7-A applies solemnized after the Amended Act, shall be good and valid in law. 43. It is pertinent to note that this section 7-A shall apply to any marriage between any two Hindus. Therefore, if the marriage is celebrated under this Amended Act, it could be solemnized only between two Hindus which is in conformity with section 5 of the Central Act. 43. It is pertinent to note that this section 7-A shall apply to any marriage between any two Hindus. Therefore, if the marriage is celebrated under this Amended Act, it could be solemnized only between two Hindus which is in conformity with section 5 of the Central Act. Krishnaswamy Reddy, J., in a Criminal Revision case reported in Lakshmanan v. Palaniappa Chetiar1, while dealing with this Amended Act, has stated thus: “When the law says that a valid marriage can be performed by exchange of garlands or by tying a thali around the neck of the bride by the bridegroom and if these things were done, it would constitute a marriage under the law, it is for the parties who performed the marriage to say whether the marriage was performed under the custom prevailing in the community or under any other law. A third party will not be in a position to say whether a particular marriage has been intended to be performed according to the custom or under the law as there is always a possibility for the parties performing marriage to change over from one to another at any time.” When once a complaint is made setting up a case that the marriage was solemnized as per the Hindu rites and ceremonies applicable to the parties, it is for the complainant to prove all (including the pre-requisite condition that the parties to the marriage are Hindus) that are necessary to constitute a valid marriage. But in the instant case, since I have already held that the first respondent was not a Hindu when he contracted the alleged second marriage, the marriage between the first respondent and the second respondent cannot be said as a valid one even under section 7-A of the Amended Act. Therefore, the submission of the learned Counsel for appellant that the marriage could be held valid as per the Amended Act, cannot be accepted. 49. Finally, Mr. Coelho would advance an ad misere cordium argument that P.W. 1, the complainant has been left in a miserable predicament by the act of the first accused in deserting her and marrying the second accused. No doubt this hardship exists. 49. Finally, Mr. Coelho would advance an ad misere cordium argument that P.W. 1, the complainant has been left in a miserable predicament by the act of the first accused in deserting her and marrying the second accused. No doubt this hardship exists. It is very unfortunate that such hardships go unpunished sometimes when such acts as the one in the instant case, are committed, once again to borrow the words of Panchayakesa Ayyar, J., in Maruthamma’s case2 “by lusty fellows preferring younger women and is nothing to go by in criminal cases”. In the light of the above discussion, the order of the lower Court acquitting the first accused and others cannot be said to be incorrect. 50. In the result, the Criminal Appeal is dismissed.