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Rajasthan High Court · body

2000 DIGILAW 637 (RAJ)

Heera Ram v. State

2000-05-16

BHAGWATI PRASAD

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JUDGMENT 1. - Learned counsel for the petitioner has urged that `Muklava' in the case in hand has taken place before five years of the occurrence. The date of Muklava should be taken as the date of marriage. It is a case of burning of daughter-in-law within five years of Muklava, therefore, purposive interpretation of the word `marriage' should be taken as occurring under Section 113-A of the Evidence Act and Section 304-B IPC. The concept, purpose and idea behind this enactment is to punish the offence of mental cruelty and physical violence against married woman which may be caused after the husband-wife relationship are put to real test i.e., starting of married life. In Indian social to context where child marriages are rempant, the actual relationship of marriage comes into being only when Muklava ceremony takes place and hence word marriage' must receive the purposive interpretation to extend its meaning to Muklava. This word has to be interpreted with imagination of purpose behind it because a statute is best interpreted when one knows why it has been enacted'. The living thought is, for the unnatural death of wives and brides, within seven years of marriage i.e. starting of married life, the husband and the in laws are accountable and if not explained and proved otherwise they are criminally liable. 2. Per contra, learned counsel for the respondents urged that strict interpretation is required to be given to the word `marriage' and in Penal Statutes, the theory of purposive interpretation cannot be invoked. 3. Heard learned counsel for the parties. 4. It would be worthwhile to take note of the relevant provisions of the Hindu Marriage Act (for short `the Act') to understand as to when a marriage can be said to be solemnised. In Section 5 of the Act, requisites of ceremony of the marriage are provided which reads as under - 5. Heard learned counsel for the parties. 4. It would be worthwhile to take note of the relevant provisions of the Hindu Marriage Act (for short `the Act') to understand as to when a marriage can be said to be solemnised. In Section 5 of the Act, requisites of ceremony of the marriage are provided which reads as under - 5. A marriage may be solemanized between any two Hindus, if the following conditions are fulfilled, namely- Ceremonies for a (i) neither party has a spouse living at the time of marriage; (ii) at the time of the marriage, neither party - (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity or epilepsy. (iii) the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; 5. In Section 7 of the Act, it is provided that the marriage is solemnised as when necessary circumstances take place. For ready reference, provision of Section 7 of the Act is quoted below. 7(1) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the scared fire), the marriage becomes complete and binding when the seventh step is taken." 6. After considering all the above provisions of the Act, it can be said that a marriage is said to be solemnised when all the ceremonies are complete. Saptapadi having taken place, the marriage becomes complete to and binding. Admittedly, in the case in hand, the ceremonies stood completed prior to seven years of the date of incident. 7. After considering all the above provisions of the Act, it can be said that a marriage is said to be solemnised when all the ceremonies are complete. Saptapadi having taken place, the marriage becomes complete to and binding. Admittedly, in the case in hand, the ceremonies stood completed prior to seven years of the date of incident. 7. The question about the validity of the marriage has been subject of consideration by the Hon'ble Supreme Court in various cases. The Hon'ble Supreme Court in the case of Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564 has held that solemnise means to celebrate the marriage with proper ceremonies and in due form. Mere going through certain ceremonies with intention of marriage will not make the ceremonies prescribed by law or approved by customs. The Hon'ble Supreme Court in the case of Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153 has held that proof of solemnisation of second marriage in accordance with essential religious rites applicable to parties is a must for conviction for biagmy. Mere admission by accused that he has contracted second marriage is not enough. 8. In the instant case, marriage has come into being beyond the period of seven years. The argument of learned counsel for the petitioner is that `Muklava' had taken place subsequently. This should be taken to be the date of marriage for the purposive interpretation of Section 304-B and 113-A. `Muklava' has not been included in Section 5 of the Act to be a necessary ingredient of marriage. It has also not been alleged and established that by custom `Muklava' is the marriage. While considering penal consequences, the law has to be construed strictly. 9. The definition of marriage as mentioned in Section 304-B IPC and Section 113 of the evidence Act has to derive its interpretation in the light of the theory of strict interpretation. The purposive interpretation of law which the learned counsel for the petitioner wants to raise is not germane in the instant case. 10. Learned counsel for the petitioner has relied on a decision of this Court in the case of Zmil v. State of Rajasthan, 1998(2) RCC 164 wherein the learned Single Judge has relied upon a contingency of Mohammedan Law. 10. Learned counsel for the petitioner has relied on a decision of this Court in the case of Zmil v. State of Rajasthan, 1998(2) RCC 164 wherein the learned Single Judge has relied upon a contingency of Mohammedan Law. Suffice it to say in Mohammedan Law, the marriage is considered as to be a contract and not a sacrament ceremony. The analogy drawn by the learned Single Judge after considering the tenaments of Mohammedan Law is against the fundamental principles as laid down in Hindu Law. It runs contrary to the interpretation of the solemnisation of marriage in view of the aforementioned Supreme Court decisions. 11. On plain reading of the Apex Court decisions in the case of Bhaurao Shanker Lokhande (supra) and Smt. Priya Bala Ghosh (supra), this Court feels that the decision of the learned Single Judge based on such so principles which is not relevant to decide a dispute in Hindu Law. In this view of the matter, the argument that the date of marriage from its solemnisation should not be reckoned as to be the date of marriage but it should be reckoned from the date of Muklava cannot be considered valid. The trial court refused taking of cognizance on the complaint of the complainant petitioner and on revision, the revisional court refused to interfere. In this misc. petition, the only point urged has been discussed above and has been held against the petitioner. Therefore, no interference is called for. The misc. petition having no force is dismissed.Petition dismissed. *******