JUDGMENT : ( 1. ) THIS application under section 378 (4) of the Code of Criminal procedure 1973 (fox short the Code) is for grant of special leave to prefer appeal against the order of acquittal dated 30-10-1985 passed by the Judicial Magistrate First class Kukshi, District Dhar in Criminal Case No. 335 of 1982. ( 2. ) ACCORDING to the complaint the parties are Hindus. The non-applicant No. 1 deoram is the husband of the petitioner Sumanbai and during the subsistence of the marriage between them, he has, in the customary form of "beda Bharana" married the non-applicant No. 2 Smt. Durgabai. At the relevant time, the said Durgabai knew about the subsisting marriage between the petitioner and the said Deoram. ( 3. ) IN due course charge under section 494 Indian Penal Code was framed against Deoram and charge under section 494/119 ibid was framed against Smt. Durgabai. ( 4. ) THE defence of the non-applicants was that there has been no marriage between them and the non-applicant No. 2 resides with the first one as his Mahila Mitra ( 5. ) IT may also be mentioned that the petitioner and the non-applicant No. 1 have been involved in other litigations after about five years of their marriage. The non-applicant No. 1 instituted a suit against her for a decree of divorce. He succeeded in the trial Court but in appeal, the High Court set aside the decree. Thereafter the petitioner filed a suit for permanent injunction restraining the non-applicant No. 1 from marrying the non-applicant No. 2 Durgabai. She applied for a temporary injunction and this relief was granted. Despite service of the order, the non-applicant no. 2 it is alleged married the non-applicant No. 2. In the proceedings initiated by the petitioner as a result of disobedience of the temporary injunction, the non-applicant no. 1 came forward with the plea that the non-applicant No. 2 is his Mahila Mitra and Jiwan Sangini. ( 6. ) AT the conclusion of the trial, the learned Magistrate passed the impugned order on the ground that marriage between the non-applicants has not been proved. ( 7. ) THE point for consideration is whether the leave prayed for should be granted. ( 8. ( 6. ) AT the conclusion of the trial, the learned Magistrate passed the impugned order on the ground that marriage between the non-applicants has not been proved. ( 7. ) THE point for consideration is whether the leave prayed for should be granted. ( 8. ) IT may be stated at the outset that the petitioner, her father Hari (P. W. 2), kasna (P. W. 3) and the non-applicant No. 1 Deoram are co-villagers being residents of village Nisarpur where the second marriage allegedly took place in customary form known as Beda Bharaha in which the pitcher of water on the head of the woman is removed by the man intending to marrying her. ( 9. ) AT the trial evidence has come on record that in this customary form of marriage payment of Rs. 150/- or Rs. 151/- is also made to the Panchas of the village from which the woman hails. The learned trial Magistrate, on the evidence on record found that in the absence of this payment it cannot be held that marriage in the customary form with all its essential elements did take place and, therefore, there is no material to sustain the conclusion that in the eye of law there has been marriage between the non-applicants. ( 10. ) FOR the abetment of bigamy, mens rea or guilty intention necessary to constitute the offence of bigamy has to be proved in addition to abetment. As pointed out in the decision in Badamibais case 1983 MPWN 402, mere participation in a subsequent marriage does not constitute abetment unless some overt act in the nature of incitement or aiding or encouragement is proved. ( 11. ) IN paragraph 3 of the decision in Bhunda Sukrus case 1976 MPLJ 600 , it has been observed as under :- "in a prosecution under section 494 or 497 of the Indian Penal Code the question of marriage must be strictly proved and any inference, tacit or otherwise for example a tacit admission on the part of the husband or wife that they are husband and wife would not be sufficient to prove the factum of first marriage. In a case of this kind it is necessary for the complainant or some other person in his or her behalf to give strict proof of the marriage. In a case of this kind it is necessary for the complainant or some other person in his or her behalf to give strict proof of the marriage. Under section 50 of the Evidence Act a presumption which arises under the first part of the section as to the relationship is particularly excluded in cases in which the relationship of husband and wife is in issue. In a country like india where system of registration of marriage is not common, it is absolutely necessary oh the part of the prosecution to prove the facts and circumstances relating to the alleged ceremony of marriage so that the Court be in a position to determine whether legal marriage did take place and the relationship of husband and wife came into existence. Amongst a large majority of people of this country marriage is concluded with much ceremonies and publicity and as such there cannot be any difficulty on the part of the prosecution for leading evidence to prove the legality of the marriage by adducing evidence. " Regarding admission in the statement under section 342 of the repealed Criminal procedure Code regarding the complainant being the wife, the following excerpt from paragraph 4 may usefully be reproduced :- "in my opinion such an admission on the part of the accused person cannot amount to a confession and relieve the prosecution of the burden to prove the legality of the first marriage in the strict form. Two persons may feel that they are married and on that basis may be living together. But that by itself cannot lead to an inference, in a prosecution for matrimonial offences, that they have been legally married unless the prosecution gives strict proof that the two were married by performance of ceremonies required to make the marriage legal or in case of custom the customary rites were proved. " ( 12. ) FURTHER as held in the decision in Smt. Priti Balas case AIR 1971 SC 1153 , in order to prove the offence of bigamy punishable under section 494 Indian Penal Code, the second marriage as a fact, that is to say the ceremonies constituting it must be proved and in law even the admission made by the husband regarding the second marriage is not evidence of the fact of the second marriage having taken place. Therefore, there is no room for presumption in the matter. Therefore, there is no room for presumption in the matter. The kind of proof required may appear to be unduly harsh but there is no escape. The crucial question thus is of the proof of the second marriage as a fact and not of the improbability of the defence. ( 13. ) IN the instant case, there is no final judgment within the meaning of section 41 of the Indian Evidence Act regarding the fact of second marriage. Therefore, it has to be seen whether it has been proved as required by law as laid down in Priti Balas case (supra ). ( 14. ) AS already stated the prosecution story is that the second marriage was solemnized according to the caste custom of beda Bharana. On this point, the prosecution evidence consists of the interested evidence of the complainant sumanbai (P. W. I), her father Hari (P. W. 2) and one Kasna (P. W. 3 ). It may be noted that in his deposition dated 11-7-1983 before charge, Hari had not mentioned the name of this witness Kasna while naming several persons as those present at the time of the second marriage. None of the five persons named as eye witnesses has been examined. Kasna (P. W. 3) was examined on 5-11-1984 more than 15 months later. Then there are material inconsistencies in the evidence of Hari (P. W. 2) and Kasna (P. W. 3 ). In this state of evidence, it is difficult to hold that the second marriage is proved as a fact as required by law. The question whether or not payment of money constitutes an essential element of the customary form of marriage is shrouded in serious doubt. ( 15. ) AS pointed out in the decision in State of M. P. vs. Ramcharan 1985 MPLJ 714 , even in appeal the trial Courts finding of acquittal is not to be interfered with by the High Court if two views are reasonably possible of the evidence on record and it feels that it would have taken a different view if the case had been tried by it. ( 16. ) THOUGH in the circumstances, it appears very hard on the petitioner, I am of the view that on the material on record, it is not permissible to hold that the second marriage is duly proved according to law. ( 16. ) THOUGH in the circumstances, it appears very hard on the petitioner, I am of the view that on the material on record, it is not permissible to hold that the second marriage is duly proved according to law. It is for the Legislature to consider whether the rigour of the requirement as to proof may be relieved against by providing for rebuttable presumption in suitable cases. ( 17. ) IN the state of material on record, I am of the view that this is not a fit case for grant of special leave prayed for. The leave prayed for is, therefore, refused and the application filed for the purpose is rejected. Application for special leave rejected.