Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 304 (HP)

CHANDU LAL v. BIASAN DEVI

2000-11-24

KAMLESH SHARMA

body2000
JUDGMENT : Kamlesh Sharma, J. :- This appeal at the instance of complainant is against the judgment dated 31.7.1993 whereby Additional Chief Judicial Magistrate, Dharamshala, District Kangra, has dismissed his complaint under Section 494 I.P.C. and acquitted the respondent holding that complainant has not been able to prove beyond reasonable doubt that respondent is his legally wedded wife and that during the subsistence of her marriage with him she has solemnised second marriage with Nilu Ram on 23.10.1987. 2. After hearing learned Counsel for the parties and going through the record, this Court does not find any infirmity in the impugned judgment. The trial Court has correctly read and appreciated the evidence on record for coming to its conclusion and the view taken by it is not so unreasonable or perverse that it may be set aside in the present appeal. 3. To prove his case that his marriage was solemnised according to Hindu rites and ceremonies with the respondent in the year 1964, besides examining himself, the complainant has produced one Suhari Devi, who has claimed herself to be real sister of the respondent but latter has categorically denied this fact in her statement under Section 313, Cr. C.P.C. He has also produced Trilok Chand, PW-3, Registration Clerk from the office of Sub Registrar, Palampur, who has producedon record certified copies of documents Exts.PW-3/A and 3/B (objected to) and Exts. P.1 and P.2. The complainant has stated that his marriage with respondent was fixed by Munshi Ram, his brother-in-law, and Kanshi Ram and Bhura Ram, had acted as Nai and Prohit, respectively, but none of them has been produced as witness. He could only name Bakshi Ram, the brother of the respondent, who had attended the marriage from the side of the respondent but instead of producing him he has produced Suhari Devi who has not been named by him as one of the participants in the marriage. Though, according to both of them large number of villagers had attended the marriage, yet none of them has been named or produced. 4. Though, according to both of them large number of villagers had attended the marriage, yet none of them has been named or produced. 4. From the trend of cross-examination as well as reply to question No. 6 put to the respondent under Section 313 Cr.P.C. it appears that respondent had lived with the complainant for sometime but there is no conclusive evidence on record either of solemnisation of marriage between them according to Hindu rites as claimed by the complainant nor their living as husband and wife was to the knowledge and understanding of their relations and friends from which it may be inferred that they were husband and wife. 5. So far order dated 28.3.1988, Ext. p.3, which was passed in the application under Section 13 B of the Hindu Marriage Act is concerned, the respondent has explained in her reply to question No. 6 recorded under Section 313 Cr.P.C. that she did file joint application under Section 13 B before the District Judge, but she did not appear on the date fixed as per the advice of her Advocate that there was no need of divorce as her marriage had never been solemnised. Therefore, the nature of evidence produced by the complainant is not such as to upheld his claim that his marriage was solemnised with the respondent as per Hindu rites and the is his legally wedded wife. Having come to this conclusion, this Court need not examine the second part of the complaint that the respondent had married one Nilu Rai on 23.10.1987 and their marriage was registered in the office of Sub Registrar, Palampur. 6. Otherwise also, the documents Exts.PW-3/A and PW-3/B which are the alleged statements of the respondent and Nilu Rai before the Sub Registrar, Palampur and Exts.P.1 and P.2 formats allegedly filled in by them have not been proved in accordance with law, as Trilok Chand, PW-3, has clearly admitted in his cross-examination that these were not executed in his presence and he did not know who are the executants. The respondent has clearly denied having married one Nilu Rai and signed these documents before the Sub Registrar, Palampur. therefore, mere marking of these documents as exhibits without proving them in accordance with law, is of no consequence. 7. The respondent has clearly denied having married one Nilu Rai and signed these documents before the Sub Registrar, Palampur. therefore, mere marking of these documents as exhibits without proving them in accordance with law, is of no consequence. 7. The learned counsel for the respondent has relied upon the judgment of Supreme Court reported in Santi Deb Berma v. Smt. Kanchan Prava Devi, AIR 1991 SC 816, wherein it is held that for proving marriage of Hindus, proof of performance of Saptapadi is necessary in the absence of the plea that marriage was performed as per custom which dispensed with Saptapadi and oral evidence and letters to the effect that parties were living as husband and wife in not sufficient to draw inference as to performance of ceremonies essential for valid marriage. The ratio of this judgment squarely applies to the present case in which the complainant has failed to prove the Hindu rites and ceremonies according to which his marriage was solemnised with the respondent to hold her guilty of performing second marriage, which has also not been proved during her subsisting first marriage with the complainant. In view of this judgment, the judgment of Bombay High Court in Smt. Indu Bhagya Natekar v. Bhagya Pandurang Natekarand others, 1992 CRI.L.J.601 cited by the learned counsel for the complainant does not lay a good law that it is not obligatory to prove all necessary rites and ceremonies to prove second marriage if there is other reliable evidence to establish the charge of bigamy. 8. In the result, there is no merit in this appeal and it is rejected.