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2004 DIGILAW 954 (MP)

Ramadevi w/o Ashok Vyas v. Ashok Vyas

2004-11-30

S.L.KOCHAR

body2004
JUDGMENT S.L. Kochar, J. 1. This appeal is preferred by the complainant Smt. Ramadevi Vyas against the judgment dated 23-8-2001 passed by the learned Judicial Magistrate First Class Ratlam in Cr. Case No. 7/94 thereby acquitting the respondents No. 1 and 2 from the offence under section 494 of the Indian Penal Code and the remaining respondents No. 3 to 7 from the offence under section 494 read with section 109 of the Indian Penal Code. 2. this Court, vide order dated 7-3-2002 passed in M.Cr.C. No. 4483/2001, granted leave to appeal against the aforesaid judgment of acquittal passed by the learned Judicial Magistrate First Class. However, the appeal was admitted for final hearing only against the respondent No. 1 and 2 by order dated 22-4-2002. 3. Facts giving rise to the instant appeal were that the complainant (appellant herein) filed a complaint before the trial Court that her marriage was solemnized with the respondent No. 1 Ashok on 12-2-1982 in Ratlam according to Hindu rites and customs. After marriage till the first Rakhi festival, she lived with her husband (respondent No. 1). When on 28-4-1989, she received information that her husband is going to contract second marriage, she along with Pramod Pathak reached Mandsaur from Ratlam and there along with Godawari Upadhyaya reached at the house of respondent Ashok in Janta Colony, Mandsaur. There she found that Ashok was going to marry with Rekha according to Hindu rites and customs. Despite her raising objection, the respondent Ashok married with Rekha. At that time the other acquitted co-accused persons were present and were helping in the performance of marriage though the respondent No. 2 and other acquitted co-accused persons were knowing that the appellant was the legally married wife of respondent No. 1 and there was no divorce between them. Therefore, they have committed the offence punishable under section 494 and 494 read with section 109 of the Indian Penal Code. 4. Statements of the witnesses were recorded and on 20-6-1989, the trial Court took cognizance of the case under section 494, Indian Penal Code against the respondents No. 1 and 2 and under section 494 read with section 109, Indian Penal Code against respondents No. 3 to 7. Charges were framed against the respondents to which they pleaded not guilty. 4. Statements of the witnesses were recorded and on 20-6-1989, the trial Court took cognizance of the case under section 494, Indian Penal Code against the respondents No. 1 and 2 and under section 494 read with section 109, Indian Penal Code against respondents No. 3 to 7. Charges were framed against the respondents to which they pleaded not guilty. In their examination under section 313 of the Code of Criminal Procedure, the respondents stated that a false case has been cooked up against them. 5. After trial, the learned Magistrate, finding the respondents not guilty of the offences charged, acquitted them holding that the appellant-complainant failed to prove her case beyond all reasonable doubt that the respondent Nos. 1 and 2 entered into second marriage according to Hindu Rites and customs knowing well that the marriage between the appellant and respondent No. 1 was subsisting on that day. 6. Learned Counsel for the appellant has submitted that the learned trial Court has not properly and effectively appreciated the evidence adduced by the appellant regarding marriage of respondents No. 1 and 2 according to Hindu Rites and customs though the appellant has adduced sufficient evidence for this purpose by examining herself as (CWI), Godawari (CW-2) and Harish Chaturvedi (CW-3) brother of the appellant. Learned Counsel has placed reliance on the judgments rendered by the Supreme Court in the case of S. Nagalingam vs. Sivagami, 2001 (2) ANJ SC 1087, Laxmidevi vs. Satya Narayan and others, (1994) 5 SCC 545 and Smt. Indu Bhagya Natekar vs. Bhagya Pandurang Natekar and others, 1992 Cri.LJ. 601. 7. To combat with the aforesaid arguments, Learned Counsel for the respondents has submitted that the learned trial Court has not committed any perversity or misreading of evidence or ignored the admissible evidence in favour of the appellant unreasonably and unjustifiably. Learned Counsel has also submitted that when two views are possible and the view taken by the trial Court is reasonable, then, the view one favourable to the accused has to be adopted. He has further submitted that the appellant has miserably failed to prove by adducing cogent and reliable evidence that the respondents No. 1 and 2 entered into the marriage as per Hindu rites and customs by performing necessary ceremonies i.e. Saptapadi and Datta Homa. Therefore, the judgment of acquittal passed by the trial Court is just and proper requiring no interference. Therefore, the judgment of acquittal passed by the trial Court is just and proper requiring no interference. To strengthen his contention, Learned Counsel placed reliance on the following judgments :- (1) Bhaurao Shankar Lokhande vs. The State of Maharashtra and another, 1965 MPLJ 873 (SC) : AIR 1965 SC 1564 (2) Kanwal Ram and ors. vs. The Himachal Pradesh Administration, AIR 1966 SC 614 (3) Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh, AIR 1971 SC 1153 (4) Bhunda vs. Chetram, 1976 MPLJ 600 : 1976 JLJ 621 (5) Lingari Obulamma vS.L. Venkata Reddy and ors., AIR 1979 SC 848 . (6) Bagdiram vs. State of M. P., 1987 JU 740 (7) Gomathi vs. Vijayarghavan and ors., 1995 Cri.LJ. 81 (8) Dr. Surajmani Stella Kujurvs. Durga Charon, 2001 SCC (Cri) 1305 (9) Narendra Singh vs. State of M. P., 2004 SCC (Cri) 1893 and (10) Bihari Nath vs. Shiv Kumar Singh, 2004 SCC (Cri) 1435. 8. Having heard Learned Counsel for the parties and having perused the entire record as well as the impugned judgment, this Court is of the view that there is absolutely no substance in this appeal against acquittal. The appellant has utterly failed to prove that the respondents No. 1 and 2 entered into marriage by performing Datta Homa and Saptapadi, according to Hindu rites and customs. She has examined herself and her brother CW-3 Harish Chaturvedi and CW-2 Godawari who had sent them the information from Mandsaur on telephone regarding marriage of the respondent Nos. 1 and 2. Learned trial Court has discussed the evidence of all these three witnesses in detail and rightly held so. this Court has also gone through the statement of all these three witnesses and none of the witnesses has stated that the respondents had undergone the ceremony of "Saptapadi" and performance of "Datta Homa" by taking seven steps of holi-fire. Both the parties have admitted that they are governed by Hindu Customs and, therefore, the Hindu Marriage Act is applicable to them. They had litigated under the provisions of section 9 of the Hindu Marriage Act and also a divorce suit which was decreed in favour of the respondent No. 1 in the year 1992. Both the parties have admitted that they are governed by Hindu Customs and, therefore, the Hindu Marriage Act is applicable to them. They had litigated under the provisions of section 9 of the Hindu Marriage Act and also a divorce suit which was decreed in favour of the respondent No. 1 in the year 1992. It is true that at the time of the alleged second marriage of the respondents, there was no decree of divorce passed by the competent Court of law in favour of respondent No. 1 and against the appellant. 9. The entire allegation of the appellant is found to be incorrect by the learned trial Court on the basis of so many material contradictions in the statements of the witnesses regarding receiving of information from Godawaribai on telephone which is missing in the complaint and about event of marriage. All the witnesses have said that when they reached, the respondents were sitting together and respondent No. 2 was sitting at the right side of the respondent No. 1 and there were more than 200 persons present. According to them, the reception was going on. This shows that as stated in the complaint and the statement under sections 200 and 202 of the Criminal Procedure Code the witnesses have not stated that they had reached prior to marriage and were present at the time of performance of necessary marriage ceremonies of "Saptapadi" and "Datta Homa" according to Hindu rites and customs. The learned trial Court also rightly held that as a matter of fact till the dismissal of Special Leave Petition filed by the appellant before Hon'ble the Supreme Court against the judgment and decree of divorce passed by the competent Court in the year 1992 and also upheld by the High Court respondent did not enter into marriage. In the S.L.P. before the Hon. Supreme Court, she had filed certified copy of the application Annexure D/2 praying for restraining the respondent No. 1 from entering into second marriage and Annexure D/l whereby the Supreme Court dismissed the SLP. If the respondent No. 1 had already contracted second marriage with respondent No. 2 on 28-4-1989 as alleged by the appellant, she was not required to file and seek such relief by filing the application Annexure D/2. If the respondent No. 1 had already contracted second marriage with respondent No. 2 on 28-4-1989 as alleged by the appellant, she was not required to file and seek such relief by filing the application Annexure D/2. The appellant CW-1 has admitted in para 9 about filing of the application Annexure D/2 before the Supreme Court and dismissal of SLP. 10. In the light of the facts and feature of the present case, the judgments cited by the Learned Counsel for the appellant (supra) are not at all helpful to the appellant. In the case of S. Nagalingam (supra), the Supreme Court, after considering the several former judgments rendered by the Supreme Court on the point held in para 21 that section 7-A of the Hindu Marriage (Madras Amendment) Act, 1967 was applicable to the parties and according to this amendment inserted in the Statute, the provisions are applicable and there was a valid marriage between the appellant Nagalingam and Kasturi. Such is not the situation here in the present case. Both the parties have admitted that they are Hindus by their names and title. They are Brahmins and are governed by Hindu Marriage Act and according to the provisions of Hindu Marriage Act for performance of valid marriage "Saptapadi" and "Datta Homa" ceremonies are essential which have not been proved by the appellant in this case. 11. In another case between Laxmidevi and Satyanarayan (supra), the Supreme Court has held that in absence of "Saptapadi". the factum of second marriage was not proved. However, since the accused-husband found living with the alleged second wife as husband and wife, the Supreme Court directed him to pay a compensation of Rs. 25,000/- to his first wife (appellant). The Supreme Court has passed this order under Article 142 of the Constitution of India. this Court has no such powers. Apart from this, a decree of divorce has already been passed by the competent Court of law and the appellant can claim maintenance in accordance with law. 12. In the first case of Smt. Indu Bhagya (supra) passed by the Bombay High Court, it has been held that it is not obligatory that the complainant must be of necessity, prove that all necessary rites and ceremonies have been performed in respect of the alleged second marriage. 12. In the first case of Smt. Indu Bhagya (supra) passed by the Bombay High Court, it has been held that it is not obligatory that the complainant must be of necessity, prove that all necessary rites and ceremonies have been performed in respect of the alleged second marriage. The ratio of this case is not at all applicable to the appellant because there is absolutely no other reliable evidence to establish the valid marriage according to Hindu Marriage Act between the respondents, adduced by the appellant. 13. The ratio decidendi of the judgments cited by the Learned Counsel for the respondents (supra) is that if the parties are governed by Hindu Marriage Act, then, the second marriage has to be proved by adducing evidence by performance of "Saptapadi" and "Datta Homa." But, when there is amendment by the concerned State regarding some other ceremonies, then the legal marriage would require proof of performance of such ceremonies and in that case, performance of Saptapadi and Datta Homa are not necessary. If the parties are not governed by Hindu law, then legal marriage has to be proved according to Personal Laws applicable to the parties and/or custom prevalent in their community. 14. In the result, the appeal filed by the appellant having no substance, is hereby dismissed.