JUDGMENT This is an appeal filed by the complainant Rajeswari against the judgment dated 6.10.1980 in Criminal Appeal Nos.122 and 123 of 1980, on the file of the Court of the Learned Additional Sessions Judge, Madurai, allowing both the appeals and setting aside the conviction and sentence that had been passed against the accused 1 to 5 by the trial Court. 2. A-1 Baluchami, A-3 Sevugan Chettiar preferred C.A.No.122 of 1980 and A-2 Suseela, A-4 Karuppan Chettiar and A-5 Pappammal preferred C.A.No.123 of 1980 before the lower Appellate Court. The complainant Rajeswari preferred a complaint against the accused 1 to 5 alleging that A-1 Baluchami and A-2 Suseela have contracted a second marriage when the marriage between the complainant and A-1 was subsisting, with the connivance of A-3 to A-5, and thus A-1 and A-2 have committed an offence under Section 494 , Indian Penal Code and A-3 to A-5 have committed an offence under Section 494 read with section 109, Indian Penal Code. 3. The learned Judicial First Class Magistrate, No.2, Madurai who tried the case, convicted the accused 1 and 2 under Section 494 , Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for 3 months; and convicted A-3 to A-5 under Section 494 read with section 109, Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for 2 months. Aggrieved by the said decision, the accused (respondents herein) preferred the above said two appeals. The appeals were allowed and hence the complainant has come forward with this present appeal. 4. The case of the complainant Rajeswari is that the marriage between her and A-1 was celebrated of 7.6.1976 in the Arulmigu Kalyana Sundereswarar Kamatchi Amman Thirukovil at Melur as per caste custom. Both of them were leading a happy marital life. On 11.10.1977 a female child was born to them. 5. During the time ofpregnancy, A-1 Baluchami sent the complainant to her mother's house and ho was visiting her very often. On such occasions, he insisted the complainant (wife) to alienate to his favour the 38 cents of land which was gifted to her as ‘Sreedhana’ at the time of her marriage. She refused to do so. In pursuance of this there was a panchayat. On such occasions, he insisted the complainant (wife) to alienate to his favour the 38 cents of land which was gifted to her as ‘Sreedhana’ at the time of her marriage. She refused to do so. In pursuance of this there was a panchayat. It was decided in the said panchayat that the husband (A-1) has no right to make a demand for such alienation, and that he should take his wife and child and lead a family life. A-1 defied the decision of the panchayat. Since then the wife and the child are living only in her mother's house. A-1 is residing in Thattan Karuppan Kovil Street at Melur and he is employed as a clerk in the Agricultural Credit Society at Soorakkundu. 6. On 19.2.1978 at 9.00 a.m., A-1 married A-2 in a Vinayagar Temple near Arulmigu Agasteeswarar Temple situated in Thiruchunai village. During that time, the complainant (wife) was living in her mother's house with her child. For the said marriage, A-3 and A-4 gave the garlands and A-1 and A-2 exchanged them among themselves. A-3 gave the ‘thali’ to A-1 and he tied it around the neck of A-2. Thus the accused have committed the offences stated above. 7. For substantiating the charges, the complainant had examined herself as P.W.1. Further, she has examined one Poosari Chettiar, Ganapathi alias Karuppan Chettiar, Jakiah, Venkatasubramaniam, Thiagaraj and Karuppiah as P.Ws.2 to 7 and marked Exs.P-1 to P-3. P.W.1 and P.W.2 have deposed about the marriage between the complainant and A-1. P.W.3 has stated about A-1 demanding the complainant to alienate her ‘Sreedhana’ property in his favour and about the ‘Panchayat’ held in this regard. P.Ws.5 and 7 have stated about the celebration of the alleged marriage between A-1 and A-2. P.W. 3, the Archaka of the Agastheeswarar Temple at Thiruchunai, has stated in his evidence that the accused came and asked him to perform the marriage between A-1 and A-2 without registering about the same in the relevant Registers, and that since he did not agree, they had gone to the Vinayagar Temple nearby and celebrated the marriage. P.W.2 has stated that he had also seen the celebration of the said marriage. According to the evidence of P.Ws.5 and 7, during the time of the marriage, A-3 took the ‘thali’ and gave it to A-1 and in turn A-1 tied the ‘thali’ around the neck of A-2. P.W.2 has stated that he had also seen the celebration of the said marriage. According to the evidence of P.Ws.5 and 7, during the time of the marriage, A-3 took the ‘thali’ and gave it to A-1 and in turn A-1 tied the ‘thali’ around the neck of A-2. Thereafter, A-1 and A-2 exchanged the garlands among themselves. P.Ws.4 and 6 have stated in their evidence about A-1 and A-2 living as husband and wife at Melur. They are described as husband and wife in the voters list. 8. On the basis of the evidence available on record, the trial Court framed charges against A-1 and A-2 under Section 494 , Indian Penal Code and under Section 494 read with section 109, Indian Penal Code, against A-3 to A-5. The accused denied the charges and also the evidence adduced by the prosecution witnesses. According to the accused, there was no marriage celebrated between A-1 and A-2 and that they did not live as husband and wife. It is further stated by the accused that as the complainant's hand was sought for the younger brother of P.W.1 and as A-1 had married complainant, she had come forward to depose falsely against A-1. A-1 has further stated that in Ex.P-2, he alone had signed on behalf of the accused. One Subramaniam and Gurumoorthi were examined as witnesses on the side of the accused. Exs.D-1 and D-2 were marked on their side. D.Ws.1 and 2 stated that A-2 Suseela was married to one Nachiappan, and that she is not the wife of A-1. 9. On a consideration of the evidence available on record, both oral and documentary, the trial Court held that the charges framed against the accused were proved by the complainant and held A-1 and A-2 guilty under Section 494, Indian Penal Code and sentenced each one of them to undergo R.I. for 3 months. The trial Court found A-3, A-4 and A-5 guilty under Section 494 read with section 109, Indian Penal Code and sentenced each of them to suffer R.I. for 2 months. Aggrieved by this, the accused preferred two appeals and, as mentioned already, the lower appellate Court, allowed both the appeals and set aside both the convictions and the sentences imposed on the accused. As against this, the complainant has come forward with this present appeal. 10. Aggrieved by this, the accused preferred two appeals and, as mentioned already, the lower appellate Court, allowed both the appeals and set aside both the convictions and the sentences imposed on the accused. As against this, the complainant has come forward with this present appeal. 10. It is contended on behalf of the complainant that the lower Appellate Court had not properly appreciated the evidence and as such the acquittal of the accused, respondents herein, is not correct and is not in accordance with law. 11. The point for consideration in this appeal is, whether the complainant has proved her case against the accused, respondents herein, beyond all reasonable doubt. 12. It is relevant to note that the evidence let in on behalf of the complainant, both oral and documentary, does not prove the marriage between A-1 and A-2. Further, the complaint had been laid before the trial Court by the complainant after an inordinate delay. The trial Court has also failed to note that A-2 is the wife of one Nachiappan. To the above effect, argument was advanced on behalf of the respondents herein. On the other hand, the case of the complainant appellant herein is that she had proved her case against the accused beyond all reasonable doubt by letting in satisfactory evidence. 13. It is not denied that there was marriage between A-1 and the complainant and that out of that lawful wedlock a female child was born to them. It is not also disputed that for some reason or other, both the complainant and the 1st accused were living separately. It is also not denied that though they live separately, yet the marital tie is still subsisting. Both sides admit these aspects of the case. According to the complainant, though the marriage between her and A-1 was subsisting, A-1 had married A-2 as his second wife with the connivance of A-3 to A-5. 14. When we carefully examine the contents of Exs. P-2 and P-3, we find that they do not in any way prove the case of the complainant that there was a marriage celebrated between A-1 and A-2. According to P.W.5, the Archaka of the Agastheeswarar Temple, the accused asked him to perform the marriage between A-1 and A-2 and that he replied that he would not perform the marriage without registering the same in the registers kept by the temple authorities. According to P.W.5, the Archaka of the Agastheeswarar Temple, the accused asked him to perform the marriage between A-1 and A-2 and that he replied that he would not perform the marriage without registering the same in the registers kept by the temple authorities. He has further stated that they left the temple after performing an ‘Archana’ and went to a nearby Pillaiyar temple belonging to the Karnam of the Village and at that place A-1 and A-2 exchanged garlands among themselves, that A-3 gave the ‘thali’ to A-1 and he tied the same around the neck of A-2. The lower Appellate Court has disbelieved the evidence of P.W.5 because he had the duty of performing ‘Pooja’ in the temple and so he could not have witnessed the alleged second marriage between A-1 and A-2. It is also not in evidence that he had asked any other person to look after the performance of ‘Pooja’ and then followed the accused to the Pillaiyar temple. It is also in evidence that both the Agastheeswarar temple and the Pillaiyar temple are not adjacent to each other. Agastheeswarar temple is situated on a hill whereas the Pillaiyar temple is situated at the bottom of the hill. The evidence of P.W.5 was disbelieved for the reason that he would not have left the temple at the hill and come to the ‘Adivaram’ and seen the celebration of the alleged marriage between A-1 and A-2. 15. P.W.5 had admitted in his evidence that he is not acquainted with the other accused except A-1 and that he cannot say as to who were all the persons who got their marriages celebrated in the temple. So, it is not possible to believe the evidence of P.W.5 when he stated that A-1 and A-2 wanted that their marriage should be celebrated without registering their names in the Marriage Register kept in the temple. His testimony cannot be given credence especially when there is no documentary evidence to support the same. It is also contended on behalf of the accused (respondents) that usually marriages are not celebrated in Vinayagar temple. 16. It is relevant to note that the evidence of P.W.7 who had been examined for proving the alleged marriage between A-1 and A-2 is still unreliable and unacceptable. It is also contended on behalf of the accused (respondents) that usually marriages are not celebrated in Vinayagar temple. 16. It is relevant to note that the evidence of P.W.7 who had been examined for proving the alleged marriage between A-1 and A-2 is still unreliable and unacceptable. He has stated that he had gone to purchase bull and that on the way near the Vinayagar temple, he witnessed the alleged marriage between A-1 and A-2 and that he had also seen the exchange of garlands among themselves. He is a close relative of the complainant. His younger brother has married the sister of the complainant. P.W.7 has also admitted that he travelled in the same car in which the accused left the temple after the marriage. His evidence cannot be given any credence especially when he had stated that he objected earlier for the alleged marriage between A-1 and A-2 being celebrated. It is also relevant to note that he had admitted in his evidence that only two or three days after the alleged marriage between A-1 and A-2, he had informed the complainant about the same. If really he had witnessed the alleged second marriage as a close relative of the complainant he would have certainly informed the same to the complainant immediately. On the basis of these infirmities, the evidence of P.W.7 cannot be accepted. 17. It is true that Exs. P-2 and P-3 show that A-1 and A-2 are living as husband and wife. A-1 asserts that he did not give details regarding the same. It is not relevant whether A-1 had given the details or not. At the most, the contents of Exs. P-2 and P-3 can only show that A-1 and A-2 are living as husband and wife in the same house. But they do not in any way prove that there was a legal marriage celebrated between them. Unless it is proved that A-1 and A-2 had celebrated their marriage with all legal requirements and that they lived as husband and wife, the ingredients of the provision under Section 494, Indian Penal Code, cannot be said to be attracted. In this case, the complainant has not proved the ingredients of the provisions of Section 494, Indian Penal Code. 18. In this case, the complainant has not proved the ingredients of the provisions of Section 494, Indian Penal Code. 18. Section 494, Indian Penal Code, reads as follows: “Marrying again during the life time of husband or wife-Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or 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. Exception: This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction; nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continuously absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided that person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.” In Kanwal Ram v. Himachal Pradesh Administration Kanwal Ram v. Himachal Pradesh Administration (1966) 1 S.C.J. 210: (1966) 1 S.C.R. 539 : (1966) MLJ. (Crl.) 151: A.I.R. 1966 S.C. 614, it was held that where the evidence of the witness called to prove the impugned marriage in a prosecution for bigamy, showed that the essential ceremonies had not been performed, that evidence cannot justify a conviction. In Priya Bala v. Suresh Chandra Priya Bala v. Suresh Chandra (1971) 3 S.C.R. 961 : A.I.R. 1971 S.C. 1153, it was held that ‘Proof of solemnization of second marriage in accordance with essential religious rites applicable to parties is a must for conviction for bigamy. Mere admission by accused that he had contracted second marriage is not enough’. 19. Section 494, Indian Penal Code, contains the law of bigamy as it is called in English Law of Crimes. Mere admission by accused that he had contracted second marriage is not enough’. 19. Section 494, Indian Penal Code, contains the law of bigamy as it is called in English Law of Crimes. The essence of the offence of bigamy is that (1) the offender must be a married person and (2) the offender, male or female, must contract a second marriage that is the offence under this section and (3) that second marriage must be void under law by reason of the pre-existing marriage. So it is, whoever, having a husband or wife living marries in any case in which marriage is void by reason of its taking place during the life of such husband or wife, shall be punished in accordance with Section 494. But this section must be read subject to an exception. This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of Competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the second marriage shall have been continually absent from such person for the space of seven years and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall before such marriage takes place, inform the person with whom such marriages is contracted, of the real state of facts so far as the same are within his or her knowledge. 20. In order that the section may be attracted rendering the second marriage an offence within the meaning of this section, the second marriage must be contracted by the offender when having a husband and or wife living. The first marriage must be one which is validly subsisting on the date of the second marriage and the validity of such first marriage must strictly be proved. 21. In the instant case before us, the evidence of D.Ws.1 and 2 as well as the contents of Exs. D-1 and D-2 show that there was a marriage celebrated between A-2 Suseela and one Nachiappan. 21. In the instant case before us, the evidence of D.Ws.1 and 2 as well as the contents of Exs. D-1 and D-2 show that there was a marriage celebrated between A-2 Suseela and one Nachiappan. D.W.1 has stated in his evidence that he had attended the marriage between Suseela (A-2) and Nachiappan and that Ex.D-1 is the printed invitation for the said marriage and that it was given to him inviting him for the marriage. D.W.2 is the part-time Accountant employed in the Arulmigu Kalyana Sundareswarar temple. He produced the Marriage Register Ex.D-2 maintained by the said temple. These two exhibits show that the marriage between A-2. Suseela and Nachiappan was celebrated on 16.6.1976 in the temple. D.W.1 has also stated in his evidence that the marriage between A-2 and Nachiappan was celebrated. The name of A-2 is mentioned in Ex.D-1 invitation as ‘Suseela alias Meenakshi’. It is pointed out that the name of A-2 is only ‘Suseela’. This cannot be taken as a serious infirmity. 22. D.W.1 has also stated in his evidence that on the same day and in the same ‘Muhurtham, marriage was celebrated between the elder brother of A-2 and the younger sister of the said Nachiappan. Ex.D-1 shows the details about both the marriages. When this aspect had been put to the witnesses examined on behalf of the complainant during their cross-examination, they only pleaded ignorance and they did not deny the said fact. Thus, we find that there is adequate evidence available on record that the marriage was celebrated between A-2 Suseela and Nachiappan on 16.6.1976. It is not stated on behalf of the complainant that the said marriage had been broken at any point oftime. Thus we find that the ingredient of the provision under Section 494, Indian Penal Code, have not been proved in this case against the accused. 23. It is relevant to note that about eight months after the alleged marriage between A-1 and A-2, i.e., after an inordinate delay, the complainant has filed the complaint against the accused, for which there is no explanation offered by the complainant. It is not her case that just prior to the filing of the complainant, she came to know about the marriage between A-1 and A-2. It is not her case that just prior to the filing of the complainant, she came to know about the marriage between A-1 and A-2. P.W.5 has stated that within 2 or 3 days after the alleged marriage between A-1 and A-2, a person who claimed himself to be the brother of the complainant came to him and enquired about the said marriage. P.W.7 has also said that he had gone and informed the complainant about the alleged marriage between A-1 and A-2 two days subsequent to the alleged marriage. Thus, we find that within two days after the alleged marriage between A-1 and A-2, the complainant came to know about the same. Therefore, the lower Appellate Court is correct in holding that the complainant had not proved her case against the accused, respondents herein, beyond all reasonable doubt. The acquittal of the accused by the lower Appellate Court is correct. There is no merit in the appeal. Hence the appeal is dismissed. B.S. ----- Appeal dismissed.