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Karnataka High Court · body

2008 DIGILAW 455 (KAR)

B. M. Uttappa v. K. U. Sumi

2008-08-28

SUBHASH B.ADI

body2008
ORDER Subhash B. Adi, J. This Revision is directed against the judgment in C.C.No.9/2002 dated 6th September 2006 on the file of J.M.F.C., Madikeri confirmed by the Sessions Judge, Kodagu, Madikeri in Criminal Appeal No.88/2006 dated 25th June 2007. 2. Respondent is the complainant. She filed a complaint for an offence punishable under Section 494 IPC. Her case is that, accused is her husband and the marriage was according to Kodava community custom and under Hindu Mitakshara law. The marriage was solemnized on 2.5.1994. After the marriage, accused started ill-treating her and took all her jewels by promising her that he would keep them in the bank locker. Within few days thereafter, he left to Saudi Arabia where, he is now working. Every time when she asked him where are the jewels he informed that they are kept in a locker in Canara Bank, Virajpet. Thereafter, Complainant came to know that the accused had sold the jewels clandestinely. The other accused are her mother-in-law, sister-in-law and father-in-law, who were silent spectators to all sorts of ill-treatment, both physically and mentally. She also alleged that the accused husband’s atrocities became so open and unassailable. He started going to complainant’s office and made her to duck her head in shame on account of his indecent behaviour. Both at the place of work and also at the house, he was threatening her for dowry also. He is a habitual drunkard, he used to return home fully drunk and beat her mercilessly and quite often used to assault her alleging infidelity without any basis. In this regard, she had made a complaint on 26.2.2000 to Sri.M.M.Naniah, the then Excise Minister, who had referred the matter to the Bangalore Police Commissioner and also to Vyalikaval Police. Accused kept away from her and thereafter, he filed a petition in M. C. No. 9/2000 for restitution of conjugal rights before the Civil Judge (Sr. Dn.). Madikeri, which was pending then. When the said petition was pending, accused got married to one Rekha, daughter of Biddappa at Umamaheshwari Temple, Gonikoppal, Virajpet taluk on 5.3.2001. The marriage reception was held on 22.3.2001 at Mahila Samaj, Ponnampet. Immediately after coming to know of the said marriage, she filed a complaint before the Madikeri Police on 18.3.2001. The Police did not take any action. When the said petition was pending, accused got married to one Rekha, daughter of Biddappa at Umamaheshwari Temple, Gonikoppal, Virajpet taluk on 5.3.2001. The marriage reception was held on 22.3.2001 at Mahila Samaj, Ponnampet. Immediately after coming to know of the said marriage, she filed a complaint before the Madikeri Police on 18.3.2001. The Police did not take any action. Being frustrated by the inaction on the part of the Police, she filed a private complaint before the learned Magistrate. Initially she had filed a complaint as against accused No.1, later on as per the order dated 15.3.2004, accused Nos.2 to 6 were impleaded. Insofar as accused Nos.4 to 6 are concerned, this Court by order dated 29.10.2004 in Criminal Revision Petition No.758/2004 has quashed the criminal proceedings as against them. The case against accused No.2 was split. Accused No.3 is concerned, she has been discharged by the trial Court. By order dated 26.8.2005. the trial was commenced only against accused No.1. 3. The trial Court based on the complaint and the material and the evidence produced by the complainant by its order dated 17.6.2006 framed charge against accused No.1 for an offence punishable under Section 494 of IPC. Accused No.1 denied the charge and sought for trial. 4. Complainant in support of her case, she examined herself as PW-1 and got four witnesses examined a PWs-2 to 5. However, no defence evidence is led by the accused’s side. In the evidence of complainant and other witnesses, Exs.Pl to P12 were marked. 5. The trial Court relying on the evidence of the complainant held that, the offence punishable under Section 494 IPC is established and sentenced the accused with two years’ R.I. and fine of Rs.5,000/-. in default, the accused No.1 to undergo further S.I. for three months. It also awarded compensation of Rs.3.000/- out of fine amount to the complainant. 6. The accused aggrieved by the said judgment filed Criminal Appeal No.88/2006 on the ground that, the marriage between himself and Rekha is not proved and in the absence of solemnization of marriage in accordance with the customs, the offence punishable under Section 494 IPC cannot be held to be proved. 6. The accused aggrieved by the said judgment filed Criminal Appeal No.88/2006 on the ground that, the marriage between himself and Rekha is not proved and in the absence of solemnization of marriage in accordance with the customs, the offence punishable under Section 494 IPC cannot be held to be proved. The lower appellate Court considering the material and also the law on the said point held that, the offence is established and also held that the judgment of the trial Court does not call for interference and accordingly, dismissed the appeal. 7. Accused No.1 – husband being aggrieved by both the judgments has preferred this Revision Petition. 8. Sri. M.T. Nanaiah, learned Counsel appearing for the petitioner mainly submitted that, unless the complainant establishes that the marriage is solemnized in accordance with the custom, the offence under section 494 cannot be held to be proved. He submitted that, even assuming for the argument sake that, the accused and Rekha lived together for long time or even assuming that, there is an admission of marriage, that will not prove the offence punishable under Section 494 of IPC. It is only on proof of marriage in terms of the custom, the offence punishable under Section 494 can be held to be proved and not otherwise. In this regard, he relied on the evidence of PWs-1 to 5 and pointed out that, the complainant and the accused belong to Kodava community. He also submitted that, Rekha, alleged second wife of the accused also belongs to Kodava community and Kodava community has a separate custom of marriage and if that marriage is not proved in accordance with Kodava community custom, the offence punishable under Section 494 IPC cannot be held to be proved. In support of his contention, he relied on the evidence of PW-1. the complainant and pointed out that. PW-1 has admitted that the accused belonged to Kodava community and she has also stated, how the marriage was performed. 9. In support of his contentions. he pointed out from the evidence of PW-1, that in the- cross-examination, she has admitted that, as per the custom of the Kodava community, they cut the banana plant and wear turban, gown and sword. He also submitted that, according to PW-1, the marriage was performed in Umamaheshwari temple at Gonikoppal and thereafter, marriage reception was held. he pointed out from the evidence of PW-1, that in the- cross-examination, she has admitted that, as per the custom of the Kodava community, they cut the banana plant and wear turban, gown and sword. He also submitted that, according to PW-1, the marriage was performed in Umamaheshwari temple at Gonikoppal and thereafter, marriage reception was held. Referring to the evidence of PW-1, he further submitted that, the alleged marriage with Rekha, according to PW-1, was not performed according to Kodava customs. He also relied on the evidence of PW-2. who is the President of Mahila Samaj, who alleged to have let the premises for the reception purpose. From the evidence of PW-2, he pointed out that, he has not stated as regards to the custom of Kodava being followed in the alleged marriage. Further referred to the evidence of PW-3, who is the Manager of the temple, where the marriage has taken place. Even this witness has not stated that. the marriage was performed according to Kodava custom. PW-4 is a Priest. he has also stated that, the marriage was performed, but has not stated as regard to the custom. PW-5 alleged to be an independent witness, though has stated that the marriage has to be performed according to the custom, but this evidence does not show that the marriage was performed in accordance with the Kodava community custom. Relying on these evidence, he submitted that, if the marriage is not solemnized accordance with the customs, then the second marriage cannot be held to be proved and if the second marriage is not proved accordance with the customs, the offence punishable either under Section 494 IPC or Section 17 of the Hindu Marriage Act cannot be held to be proved. 10. In support of his contentions, he relied on a judgment reported in 1979 SCC (Cri) page 90 1 in the matter of GOPAL LAL Vs. STATE OF RAJASTHAN and submitted that, the ingredients required to prove the offences punishable under Section 17 of the Hindu Marriage Act and Section 494 IPC are that, the accused spouse must have contracted the first marriage, that while the first marriage was subsisting the spouse concerned must have contracted a second marriage and that, both the marriages must have been in accordance with the ceremonies of the personal law. He also relied on a judgment reported in AIR 1992 SC 756 in the matter of S.P.S.BALASUBRAMANYAM Vs. SURUlTAYAN @ ANDALI PADA YACHI AND OTHERS and submitted that, merely because man and woman live together for a long period, that cannot be presumed to be a marriage for the purpose of an offence punishable under section 494 IPC. He also relied on another judgment reported in 1979(3) SCC 80 in the matter of LINGARI OBULAMMA Vs. L. VENKATA REDDY AND OTHERS and submitted that, validity of the second marriage requires proof of the soleminazation of the marriage in accordance with the custom and to prove the same, there has to be material and statement in the complaint. He submitted that the custom of the particular community is required to be proved. He further relied on a judgment reported in AIR 1991 SC 816 in the matter of SANTI DEB BERMA Vs. SMF.KANCHAN PRA VA DEVI and submitted that, to prove the offence punishable under Section 494 IPC, there must be reliable evidence with regard to the performance of ‘Saptapadi’ i.e., according to the Hindu custom. He relied on another judgment reported in AIR 1966 SC 614 in the matter of KANWAL RAM AND OTHERS Vs. THE HIMACHAL PRADESH ADMINISTRATION and submitted that, admission of marriage by the accused is not sufficient to prove the offence unless essential ceremonies of the custom are proved. He also relied on another judgment of this Court reported in 2000 Crl. L.J. 2862 in the matter of SRIDHAR G. JINGADE ALIAS S.G.J1NGADE & OTHERS Vs. SMT. SATYAVATHI and submitted that, the evidence of particulars of place, day, date, time of marriage and people attending and observance of requisite ceremony must be proved. 11. The principal contention of the learned Counsel for the petitioner is that, the marriage must be solemnized in accordance with the custom to which the husband and the wife belong. In the absence of the solemnization of marriage in accordance with the custom, the marriage cannot be held to be proved and in the absence of the same, the offence punishable neither under Section 494 IPC nor Section 17 of the Hindu Marriage Act can be held to be proved. He submitted that, the evidence of PWs-1 to 5 do not prove the marriage in accordance with the Kodava custom. He submitted that, the evidence of PWs-1 to 5 do not prove the marriage in accordance with the Kodava custom. None of the ceremonies required in Kodava community were performed in the alleged marriage and in the absence of the same, the offence punishable under Section 494 IPC cannot be held to be proved. He pointed out that, both the Courts have committed an error in relying on the evidence of PWs-1 to 5 and the documents produced by the prosecution without considering the scope and ambit of Section 494 of IPC. 12. Learned Counsel appearing for the respondent relied on the evidence of PW -1 and submitted that, PW -1 is the complainant and in her statement, she has categorically stated that, her marriage was solemnized with the accused on 5.3.2001, which is supported by the registration of marriage as per Ex. P4. He also pointed out that, Ex.P4 bears the signatures of the witnesses and pointed out that, Ex. P1 is an application filed by the accused before the Civil Judge (Sr. On.). Madikeri for restitution of conjugal rights. The said petition was withdrawn by the accused on 9.10.2002. Ex.P2 is the copy of petition. Ex. P3 is a wedding reception invitation card of the second marriage by the accused No.1 with Rekha and the marriage was solemnized in Umamaheshwari temple on 18.3.2001 as per Ex.P4. Ex.P5 is the invitation card of naming ceremony of the child born out of the alleged wedlock of accused No.1 with Rekha. Ex.P7 is a copy of marriage certificate. Referring to these documents and the evidence of PW-1, he submitted that, Exs. P1 and P7 undisputedly prove the marriage between complainant and the accused No.1. Accused No.1 himself has filed a petition for restitution of conjugal rights against the complainant. Exs. P3 and P5 prove the alleged marriage of the accused No.1 and Rekha. This is also supported by the evidence of PW -2, who is the President of Mahila Samaj. Ex. P6 is the invitation card. He further submitted that the documentary evidence coupled with PW.2’s evidence prove that the marriage reception of accused No.1 and Rekha was held in the premises of Mahila Samaj. This is also supported by the evidence of PW -2, who is the President of Mahila Samaj. Ex. P6 is the invitation card. He further submitted that the documentary evidence coupled with PW.2’s evidence prove that the marriage reception of accused No.1 and Rekha was held in the premises of Mahila Samaj. PW 3 is the Manager of the temple and he in his evidence has stated that, the marriage was performed in temple on 5.3.2001 and he has also admitted that, entry was made in the register as per Ex.P4, signatures of the witnesses are marked as Ex.P4(a) and (b) and submitted that, the evidence of PW.3 and document Ex.P4 prove that the marriage was held in the temple. He also relied on the evidence of PW -4 and stated that” PW.4 is a Priest” who conducted the naming ceremony of the daughter born out of the second marriage and the said naming ceremony was performed on 29.6.2002. 13. Learned Counsel for the complainant strongly relied on the evidence of PW.5 and submitted that, he is the independent witness who attended the marriage and has stated that all the ceremonies required as per the Kodava custom have been followed in the marriage between accused and Rekha. 14. By relying on the documentary evidence and also the oral evidence, learned Counsel for the respondent submitted that the marriage of the complainant and the accused is proved beyond reasonable doubt by Ex.P1 itself and the marriage between the accuse and Rekha is also proved beyond doubt as per the evidence of PWs-2 to 5, who are independent witnesses, which is supported by Exs.P3,P4, P5 and P6 and P12. Referring to the provisions of Section 494 IPC, he further submitted that, solemnization of marriage only requires the proof of the second marriage. Solemnization of marriage in accordance with the personal law to respective spouse is concerned, by and large has to be proved. In this connection, he also submitted that, PW-5 being an independent witness has categorically stated that, the marriage was performed according to Kodava custom. If PW-5’s evidence is accepted, it clearly proves that the ceremony required to be performed in Kodava custom has been followed. He submitted that, in the examination-in-chief, PW-5 has stated that, the marriage was in accordance with the Hindu – Kodava custom and also has stated that, 300 to 400 people had attended the reception. If PW-5’s evidence is accepted, it clearly proves that the ceremony required to be performed in Kodava custom has been followed. He submitted that, in the examination-in-chief, PW-5 has stated that, the marriage was in accordance with the Hindu – Kodava custom and also has stated that, 300 to 400 people had attended the reception. Though in the cross-examination it was suggested that, certain ceremonies were not followed, but same has been denied by PW-5. If the marriage is solemnized in accordance with Kodava custom between the accused and the complainant, it is a clear case of offence punishable under Section 494 of IPC and Section 17 of the Hindu Marriage Act. 15. As regards to the judgments referred to by the learned Counsel for the petitioner, he further submitted that in all the judgments, it is only stated that the ceremonies are required to be performed and in this case, the evidence of performing of the marriage in accordance with the Kodava custom is also proved beyond reasonable time. If that is so, the judgments referred to by the learned Counsel for the petitioner hardly have any application to the facts of the case. 16. The only question that arises for consideration in this Revision Petition is: “As to whether the marriage between the petitioner and Smt Rekha was solemnized in accordance with the custom and whether the marriage though otherwise proved is required to be proved according to the custom to prove the offence against the accused?” 17. It is useful to refer to some of the provisions of Hindu Marriage Act. Hindu Marriage Act which is a law relating to marriages amongst the Hindus is applicable to all the Hindus except the State of Jammu and Kashmir. Section 3 Clause (a) of the Hindu Marriage Act, 1955 defines “custom” and .usage”, which reads as under: “(a) the expression “custom” and “usage” signify and rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group of family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.” 18. The Hindu Marriage Act has an overriding effect of all other Jaw of custom and usage. The Hindu Marriage Act has an overriding effect of all other Jaw of custom and usage. In order to make a valid marriage, the conditions stipulated under Section 5 of the Hindu Marriage Act are required to be complied. Section 5 stipulates that the marriage may be solemnized between any two Hindus, if the conditions are fulfilled, such as, neither of the party is incapable of giving a valid consent to it, in consequence of unsoundness of mind; though capable of giving a valid consent, has been suffering from mental disorder; has been subject to recurrent attacks of insanity; the bridegroom has completed the age of 21 years and the bride the age of .18 years at the time of the marriage; 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 and the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Neither of the party has a spouse living at the time of marriage. Section 5 contemplates amongst others that the spouse of neither of the party living at the time of marriage vis-à-vis, the second marriage during the life time of the spouse is prohibited. If the marriage is in violation of the said conditions, it will be a void marriage in the eye of law. Section 11 of the Hindu Marriage Act declares what are the void marriages. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes anyone of the conditions specified under Section 5 clauses (i), (iv) and (v), which also includes the contract of marriage during the life time of either of the spouse. Reading of the provisions of Sections 5 and 11 of the Hindu Marriage Act makes it clear that, even if the marriage is solemnized in accordance with the custom during the life time of either of the spouse living, it would be a void marriage. In this context, it is useful to refer to the provisions of Section 17, which reads as under: “S. 17. In this context, it is useful to refer to the provisions of Section 17, which reads as under: “S. 17. Punishment of bigamy.- Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly.” The marriage cannot be solemnized during the life time of husband and wife. Whether the solemnization referred to under Section 5 or Section 17 of Hindu Marriage Act or Section 494 of IPC requires following of the ceremonies prescribed under the custom for the purpose of proving the second marriage is essential. No doubt, the Apex Court in the cases referred to above has categorically observed that, marriage must be solemnized in accordance with the customs of the concerned parties. The Apex Court in a case reported in 1988(1) SCC 530 in the matter of Jamuna Bai Anantrao Adhav Vs. Anantrao Shivaram Adhav and Another has held that, marriage in contravention of Section 5 has to be ignored or to be treated as non-existent marriage. In another case, the Apex Court in a case reported in 1994(1) SCC 460 in the matter of S.P.S. Balasubramanyam (supra) has held that, man and woman living long years as husband and wife, a presumption arose of legality of marriage. It is in the light of these decisions, following of the ceremonies for the purpose of proving an offence of bigamy is required to be considered. If one of the spouses during the life-time of another marries second time, though not in accordance with the customs, can it be said that the offence is not committed, even though the second marriage is proved? In order to appreciate the object of offence of bigamy, it is useful to refer to the marriage under Section 494 of IPC and Section 17 of the Hindu Marriage Act and also necessary to know, what is solemnization in connection with the offence. No doubt, solemnization requires following of certain ceremonies. 19. In order to find out as to, whether the evidence on record is sufficient to constitute an offence punishable under Section 494 IPC, it is relevant to notice the evidence led by the prosecution. 20. PW -1 is the complainant. No doubt, solemnization requires following of certain ceremonies. 19. In order to find out as to, whether the evidence on record is sufficient to constitute an offence punishable under Section 494 IPC, it is relevant to notice the evidence led by the prosecution. 20. PW -1 is the complainant. In her evidence, she has stated that, accused married her on 2.5.1994 in accordance with the Hindu custom. It is not disputed by the accused though PW -1 has been cross-examined. Ex.P1· is the copy of petition filed by the accused in M. C. No.9 / 2000. The said miscellaneous case is filed under Section 9 of the Hindu Marriage Act wherein the accused at paras-3 and 4 has stated as under: “3. Marriage of respondent solemnized .with petitioner in accordance with Kodava Custom and tradition. After the marriage of respondent with petitioner, respondent and petitioner resided together with as husband wife. 4. Due to wed lock of petitioner with respondent, respondent gave birth to a male child by namely Sanketh Bopaiah now aged 1 year.” From the averments in M.C.No.9/2000, it is clear that, the respondent - accused, who had filed the said petition, has admitted that the marriage is solemnized in accordance with Kodava community and out of the said wedlock, he got a child. Insofar as marriage of the accused with the complainant is concerned, it is proved. 21. Now the question is, as to whether the second marriage between accused and one Rekha is solemnized or not, as to whether the ingredients of Section 494 IPC are proved or not. 22. In this regard, the prosecution has led the evidence of PWs-1 to 5. PW-1 being the wife of the accused, she has stated that, accused married to Rekha on 5.3.2001 and she got that information from her mother. In proof of the said marriage, PW-l has produced Ex. P3. Ex.P3 is the wedding reception card of Smt.Rekha with the accused held on 22nd March 2001. Ex.P4 is the extract of register maintained by Umamaheshwari, temple showing that the accused and Smt.Rekha married on 5.3.2001. This extract shows the name and address of the accused and Rekha, their signatures and signatures of other witnesses. PW-1 has also produced Ex.P5, an invitation card of naming ceremony of the child born out of wedlock between the accused and Smt.Rekha held on 29th June 2002. This extract shows the name and address of the accused and Rekha, their signatures and signatures of other witnesses. PW-1 has also produced Ex.P5, an invitation card of naming ceremony of the child born out of wedlock between the accused and Smt.Rekha held on 29th June 2002. Ex.P6 is another copy of the invitation card of marriage reception of accused with Rekha. Ex. P7 is the registration of marriage of the complainant and the accused. These are the main documents, which are relied by the complainant - PW-1, to show that the marriage was solemnized between accused and Smt. Rekha. PW -1 has been cross examined as regards to the marriage only to elicit an answer that the complainant’s marriage with the accused was not solemnized in accordance with Kodava custom. Insofar as marriage of accused with Rekha, a suggestion is made that, the complainant has not given any complaint or has not taken any injunction order. restraining the accused from marrying and it is suggested that, she was not present at the time of alleged marriage, nowhere in the cross-examination of PW-1. there is any serious suggestion as regard to the solemnization of marriage of the accused with Rekha was not in accordance with the custom or particularly Kodava custom. Though it is suggested that the marriage between the complainant and the accused was not performed in accordance with the Kodava customs, for that, a suggestion is made that, in Kodava custom certain rituals are followed. 23. PW-2 is the President of Mahila Samaj. She has admitted Ex.P6, to prove that the marriage reception was held in Mahila Samaj in terms of Ex.P6. PW-3 is the Manager of the temple, in his evidence, he has also stated that, on 5.3.2001, the marriage between accused and one Rekha was solemnized in terms of Hindu custom by tying a thali and he admits that, it is registered in the temple as per Ex. P4 and identifies the signatures of the witnesses as Exs.P4 (a) and (b). In the cross examination, it is suggested that, the marriage was not performed in terms of Kodava custom and witnesses are not known to PW-3. P4 and identifies the signatures of the witnesses as Exs.P4 (a) and (b). In the cross examination, it is suggested that, the marriage was not performed in terms of Kodava custom and witnesses are not known to PW-3. PW-4 is an Archak (priest), who performed the naming ceremony of the child born out of the wedlock between accused and Rekba and he also admits that Ex.P12 is a receipt given by him for having performed the naming ceremony on 29.6.2002. He is not a witness to the marriage. 24. PW-5 is a person, who attended the marriage. He also admits that, he is related to PW-1. In his examination-in-chief, he states that, the marriage was solemnized at about 10.30 a.m. in accordance with the Kodava custom and about 300 to 400 persons had participated in the marriage. He also states that. As per the custom, a holy lamp is kept in the mantap and in witness with the holy lamp, thali is tied and thereafter, the elders will bless the couple and present the gifts. He also admits that, as per the Kodava custom, the marriages are celebrated in temples, choultries and in halls and admits that the marriage between accused and Rekha was held in temple. In the cross examination he reiterates that at the marriage a holy lamp was kept and the gifts were received. He denied the suggestion that the marriage was not in accordance with the Kodava custom. 25. In the light of this evidence, it is clear that, insofar as the marriage between the complainant and the accused is established, rather is not in dispute in view of Ex. P2. As regards to the second marriage, the definition of Section 494 IPC reads as under: “Section 494: Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception - This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.” From the provisions of Section 494, what is required is that, whoever having a husband or wife living, marries in any case, such marriage is void by reason of its taking place during the life of such husband or wife is punishable. The marriage in contravention of Section 5 sub-section (1) clause (i) of the Hindu Marriage Act is void inasmuch as the marriage solemnized between two Hindus having a spouse living at the time of such marriage is a void marriage. By reason of law, the marriage between the two having spouse living at that time in law is a void marriage and the person contracting for such marriage would be punishable under Section 494 IPC. However, reference to marriage under Section 494 has been interpreted by the Apex Court as well as by this Court and various High’ Courts. Though in law, the marriage is void but in form the marriage must be solemnized. The solemnization according to the interpretation must be in accordance with the relevant custom. 26. It is not in dispute that, first part of Section 5 sub-section (1) clause (I) of the Hindu Marriage Act that the alleged marriage by the accused with one Rekha is during the life time of the complainant who is legally wedded wife of the accused. Now in order to know whether that marriage was solemnized, though PW-1 is not a witness to the marriage but she has produced documents to show that the marriage was solemnized. Evidence of Ws-2. 3 and 5 shows that the marriage was solemnized in accordance with the Hindu custom. Now in order to know whether that marriage was solemnized, though PW-1 is not a witness to the marriage but she has produced documents to show that the marriage was solemnized. Evidence of Ws-2. 3 and 5 shows that the marriage was solemnized in accordance with the Hindu custom. These witnesses have stated that the marriage was according to the Hindu custom. It is vehemently contended by the learned Counsel for the petitioner that the solemnization of marriage must be in accordance with the custom of the party contracting into such marriage. It is stated that both the accused as well as Rekha, they belong to Kodava community and according to the custom of Kodava community, in the marriage ceremony, there has to be a holy lamp and cutting of banana tree and submitted that, that ritual is not followed in the alleged marriage and it cannot be held that the marriage is solemnize in accordance with the custom. From the evidence what is clear is that. the marriage was solemnized between accused and Rekha and out of the said marriage a child is born, whose naming ceremony is performed by PW-4 in terms of Ex.P5. 27. PW-5 is a material witness, who has witnessed the marriage and in his evidence, he has stated that it was according to the Kodava custom. Fact found is that, the accused and one Rekha are living as husband and wife and are married and they have got a child out of the said wedlock. The evidence shows that marriage was in accordance with the Hindu custom. Witnesses though have not stated in detail as regards to the rituals to be followed, but in substance, it is stated that the marriage was in terms of Kodava custom. This evidence, in my opinion appears to be sufficient as far as the solemnization of marriage between the accused and one Rekha. The definition of ‘solemnization’ has been interpreted by the Supreme Court and by other High Courts also. Solemnization of marriage and the custom is concerned, it is the matter of evidence. This evidence, in my opinion appears to be sufficient as far as the solemnization of marriage between the accused and one Rekha. The definition of ‘solemnization’ has been interpreted by the Supreme Court and by other High Courts also. Solemnization of marriage and the custom is concerned, it is the matter of evidence. The tenor of cross-examination by the defence particularly of PW-1, PW-1 when in examination-in-chief has stated that, it was in accordance with the Kodava custom, what is sought to be cross-examined is that, her marriage with the accused is not in accordance with the Kodava custom, but it is not necessary to be proved in the light of the Ex.P2 itself. When the first marriage is proved, the second marriage though it is void in law. in the form, it has been proved that it is solemnized in accordance with the custom as per the evidence. It need not be reiterated that, in exercise of revision, this Court cannot re-appreciate the evidence and come to a different conclusion. However, a serious question was raised by the learned Counsel for the petitioner as regards to the following of the custom. In the light of the same, the matter was considered at length and in my opinion, having regard to the evidence and having regard to the documents, which not only proved the solemnization, but also the solemnization in terms of the custom, the offence has been dearly proved by the prosecution and both the Courts have concurrently held against the petitioner and in the revision, even having a second look on the entire evidence, I do not find any ground to interfere with the judgements of both the Courts below. 28th August 2008: This Court by order dated 29.7.2008 had disposed of the Revision Petition, confirming the conviction judgment of the trial Court and the appellate Court. However, at that stage, submissions were made by both the Counsel that, in view of the relationship between the parties, the parties are likely to settle the dispute. In this regard, the matter was adjourned from time to time. Since this dispute touches the family interest and complainant being the wife, parties agreed to settle the matter. Today, both the parties are present and they have signed an application under Section 320 Cr. P. C. reporting the settlement. Learned Counsel have also signed the said application. In this regard, the matter was adjourned from time to time. Since this dispute touches the family interest and complainant being the wife, parties agreed to settle the matter. Today, both the parties are present and they have signed an application under Section 320 Cr. P. C. reporting the settlement. Learned Counsel have also signed the said application. In view of the nature of the dispute between the parties and in the interest of justice and in terms of settlement arrived by the parties, the offence alleged against the petitioner is compounded and the petitioner is acquitted from the offence punishable under Section 494 IPC. In view of the settlement, as recorded in the application for compounding (the compromise is placed on record), the parties are bound to act in accordance with the settlement and it is declared that, the rights are accrued to the parties accordingly in terms of the said application. Office is directed to make the application as part of the order. Accordingly, the Revision Petition stands disposed of, in terms of the settlement.