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1993 DIGILAW 691 (MAD)

Jayam v. Vinaitheerthan alias Jayaraju and others

1993-10-26

BELLIE

body1993
Judgment : This appeal is against acquittal of the accused in a case in which A-1 stood charged under Sec. 494, I.P.C. and A-2 to A-8 under Sec.494, read with 109, I.P.C. and all read with Sec. 17 of the Hindu Marriage Act. 2. This is a private complaint case. The case of the complainant Jayam is that A-1 is her husband and he during the subsistence of their marriage has married A-2 on 19. 1985 and A-3 to A-8 have abetted the marriage. All the accused denied the charge. 3. The learned Chief Judicial Magistrate, Pudukottai on appreciation of the evidence adduced the complainant came to the conclusion that the complainant has not satisfactorily proved the guilt of the accused and therefore he acquitted all of them. It is against this order of acquittal this appeal has been filed. 4. The court below has found that there is no eye witness to the alleged second marriage between A-1 and A-2. The evidence of the complainant (P.W.I) is only hearsay. However she has filed Ex.P-4 which is a counter filed by A-1 in M.C.No. 3 of 1985 filed by the complainant against him for maintenance and in that counter A-1 has admitted the second marriage, and Ex.P-3 an extract of marriage register which shows that A-1 and A-2 have admitted before the Registrar of marriages that they were married, and Ex.P-5 judgment in M.C.No. 3 of 1985 wherein it has been held that there was a second marriage between A-1 and A-2. But the learned Magistrate took the view that these documents also are not sufficient to prove that there was a second marriage for the purpose of Sec. 494, I.P.C. 5. There is no doubt that in Ex.P-4 as stated above, A-1 has admitted that there was a second marriage, and Ex.P-3 also shows that both A-1 and A-2 have signed before the Registrar stating that A-1 and A-2 were married and there is also a clause in P-3 that the marriage was solemnised, but the question is whether these would be sufficient to prove that the marriage was in fact solemnised between A-1 and A-2. 6. In this connection a judgment of the Supreme Court, in Priya Bala Ghosh v. Suresh Chandra Ghosh, A.I.R. 1971 S.C. 1153: 1971 Crl.L.J. 939: 1971 S.C.D. 439 may be referred to. 6. In this connection a judgment of the Supreme Court, in Priya Bala Ghosh v. Suresh Chandra Ghosh, A.I.R. 1971 S.C. 1153: 1971 Crl.L.J. 939: 1971 S.C.D. 439 may be referred to. Therein the Supreme Court has quoted an earlier judgment of it in Kanwal Ram v. The Himachal Pradesh Administration, A.I.R. 1966 S.C. 614: 1966 M.W.N. 19: (1966) 1 S.C.W.R. 64: 1966 Crl.L.J. 472: 1966 M.L.J. (Crl.) 151: (1966)1 S.C.R. 539 , with approval wherein it has been held that, “In a prosecution for bigamy the second marriage has to be proved as a fact and it must also be proved that the necessary ceremonies had been performed.” In that decision it was also held that: “..admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery.” Therefore to prove a marriage for the purpose of Sec. 494, I.P.C. the complainant has to prove the necessary ceremonies for the marriage. Only from the admission of the accused that there was a second marriage it cannot be held that there was indeed a second marriage solemnised with necessary ceremonies. Therefore in my view the court below is correct in not relying on Ex.P-4 and Ex.P-3 as proof of the alleged second marriage. 7. As regards Ex.P-5 judgment in M.C.No. 3 of 1985 wherein it has been held that the second marriage has been proved, it is a finding given in a quasi-criminal proceeding and that will not be sufficient to prove the second marriage in a criminal proceeding in which the accused has been charged under Sec.494, I.P.C. In this view of the matter I do not find sufficient reason to interfere with the judgment of the court below holding that the complainant has not proved the guilt of the second accused and acquitting them. Therefore the criminal appeal is dismissed.