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2013 DIGILAW 407 (HP)

State of H. P. v. Rajinder Kumar

2013-05-09

DEV DARSHAN SUD

body2013
JUDGMENT Dev Darshan Sud, J.(oral) The State is aggrieved by the judgment of the learned trial Court for acquitting the accused for offences under Section 498-A, 494 read with Section 34 of IPC. 2.The case of the prosecution, in brief, is that complainant Nirmala Devi was married to accused Rajinder Kumar (sic Singh) on 6.12.2000. The prosecution alleges that Kamlesh, the second accused before the learned trial Court, is the brother of Rajinder Kumar, the first accused. Bhajan Singh and Satya Devi are the father and mother of this accused. It is alleged that the complainant was constantly harassed by the accused for not meeting their demands for dowry. Initially one demand was met, but later on, another demand of Rs. 3000/- was made. When it was not complied with she was assaulted and beaten. When this money was paid, the accused Rajinder Kumar spent it on consuming liquor. Another demand of ‘ two lakhs was made so that the accused could purchase a maruti van. The gist of the offence against the accused is that not only did they treat the complainant with cruelty within the meaning of Section 498-A IPC, but Rajinder the first accused performed a second marriage in contravention of the provisions of Section 494 IPC . The prosecution has examined 17 witnesses in all to establish its case. 3. On the evidence on record, the learned Judicial Magistrate after a detailed consideration of the evidence concluded that no offence as alleged has been made out against the accused and they were acquitted for the said offences. 4.It is this order which is now challenged in appeal. Learned Additional Advocate General submits that testimony of the prosecution witnesses has not been considered in its true perspective. The learned trial Court only relies upon selective portions of the evidence in order to garner out those portions, which are favourable to the accused, resulting in acquittal. Learned Additional Advocate General also submits that the second marriage stands proved by none other than PW14 Pandit Roop Chand Sharma who performed the marriage and stated in clear and uncertain terms that marriage was not only performed by him but also entered in the Register Ext.PW14/A and he issued Ext.P1 which is the certificate evidencing the marriage of the accused. In particular, learned Additional Advocate General submits that this witness having categorically stated that the marriage was performed in accordance with “Hindu rites”, no other or further proof was required for proving this offence. 5. I advert to the evidence of this witness. PW14 states in his examination in chief that he performs the marriages of Hindus in accordance with the Hindu tradition and the exact words used by him are:- “ main Hindu riti-riwaz ke anusar saat feron dwara ichhit jodo kaa vivah karwata hoon….” (Stated that I perform the marriages of the interested persons in accordance with the Hindu rites and customs by asking them to perform seven feras.) He then states that he had performed the marriage of the accused according to Hindu customs, but no where states that ceremony of ‘saptapadi’ was performed. The law on this point is now well settled. In Kanwal Ram and others vs. The Himachal Pradesh Administration AIR 1966 SC 614 the Supreme Court considering this aspect holds:- “6. It was contended for the appellants that this evidence was not enough to show that the marriage of Kubja and Kanwal Ram can be said to have been performed. We think this contention is justified. In Bhaurao Shankar Lokhande v. State of Maharashara Cri. Appeal No. 178 of 1963, unreported: (since reported in AIR 1965 SC 1564 ), this Court held that a marriage is not proved unless the essential ceremonies required for its solemnization are proved to have been performed. The evidence of the witness called to prove the marriage ceremonies showed that the essential ceremonies had not been performed. So that evidence cannot justify the conviction. The trial Court also took the same view. The learned Judicial Commissioner does not seem to have taken a different view. 7. The learned Judicial Commissioner, however, thought that apart from the evidence about the marriage ceremonies earlier mentioned there was other evidence which would prove the second marriage. He first referred to a statement by the appellant Kanwal Ram that he had sexual relationship with Kubja. We are entirely unable to agree that this, even if true, would at all prove his marriage with Kubja. He first referred to a statement by the appellant Kanwal Ram that he had sexual relationship with Kubja. We are entirely unable to agree that this, even if true, would at all prove his marriage with Kubja. Then the learned Judicial Commissioner relied on a statement filed by Kubja, Hira Nand and Hiroo in answer to an application for restitution of conjugal rights filed by Sadh Ram against Kubja and others, in which it was stated that Kubja married Kanwal Ram after her marriage with Sadh Ram had been dissolved. Now the statement admitting the second marriage by these persons is certainly not evidence of the marriage so far as Kanwal Ram and Seesia are concerned; they did not make it. Nor do we think, it is evidence of the marriage even as against Kubja. First, treated as an admission, the entire document has to be read as a whole and that would prove the dissolution of the first marriage of Kubja which would make the second marriage innocent. Secondly, it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case, the scond marriage as a fact, that is to say, the ceremonies constituting it, must be proved: Empress v. Pitambur Singh, ILR 5 Cal 566(FB), Empress of India v. Kallu, ILR 5 All 233, Archbold, Criminal Pleading Evidence and Practice (35th Ed.) Art. 3796. In Kallu’s case, ILR 5 All 233 and in Morris v. Miller, (1767)4 Burr 2057:98 ER 73, it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case: see also Archbold,Criminal Pleading Evidence and Practice (35th Ed.) Art.3781. We are unable, therefore, to think that the written statement of Kubja affords any assistance towards proving her marriage with Kanwal Ram.” (at p.614-615) 7.This principle does not need any reiteration as again in Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh, 1971(1) SCC 864 the Supreme Court was at pains to point out that:- “10 Section 5 of the Act lays down conditions for a Hindu marriage. It will be seen that one of the conditions is that referred to in clause (1) namely, that neither of the parties has a spouse living at the time of the marriage. It will be seen that one of the conditions is that referred to in clause (1) namely, that neither of the parties has a spouse living at the time of the marriage. Section 7 dealing with the ceremonies for Hindu marriage is as follows: “Section 7. Ceremonies for a Hindu marriage-(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Sapatapadi (that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.” 11. Section 11 of the Act deals with void marriages. One of the conditions, if contravened, which makes a marriage solemnized after the commencement of the Act, null and void, is, if any party thereto has a spouse living at the time of the marriage. 12. Section 17 relating to punishment of bigamy is as follows: “Section 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 (XLV of 1860) shall apply accordingly.” 13. Again in the case before us there is no controversy that the second marriage is stated to have been place after the commencement of the Act during the subsistence of the first marriage. If the second marriage has taken place, it will be void under the circumstances and Section 494 of the Indian Penal Code will be attracted. Section 494 of the Indian Penal Code is as follows: “Section 494. Marrying again during lifetime of husband and wife-Whoever, having a husband or wife living, marries in any case is 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.” 14. In Bhaurao Shankar Lokhande and Another v. State of Maharashtra and Another (1965)2 SCR 837 , the question arose whether in a prosecution for bigamy under Section 494, I.P.C., it was necessary to establish that the second marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through. The first appellant therein had been convicted for an offence under Section 494, I.P.C. for going through a marriage which was void by reason of its taking place during the lifetime of the previous wife. The said appellant contended that it was necessary for the prosecution to establish that the alleged second marriage had been duly performed in accordance with the essential religious rites. The State, on the other hand, contended that for the commission of the offence under Section 494, I.P.C., it was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the lifetime of the first wife would be guilty of the offence. This Court rejected the contention of the State and observed as follows: “Prima facie the expression ‘whoever marries’ must mean ‘whoever marries validly’ or ‘whoever marries and whose marriage is a valid one.’ If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the lifetime of the husband of wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law.” 15. Again in interpreting the word “solemnize” in Section 17 of the Act, it was stated: “The word ‘solemnize’ means in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form’, according to the Shorter Oxford Dictionary. If follows, therefore, that unless the marriage is ‘celebrated or performed with proper ceremonies and due form’ it cannot be said to be ‘solemnized’. It is therefore essential for the purpose of Section 17 of the Act, that the marriage to which Section 494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. It is therefore essential for the purpose of Section 17 of the Act, that the marriage to which Section 494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom.” 16. From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties, it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract Section 494, I.P.C. Again in order to hold that the second marriage has been solemnized so as to attract Section 17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form. 17. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the essential ceremonies for a valid marriage have been performed. After referring to the passage in Mulla’s Hindu Law, 12th Edn. At page 615 dealing with the essential ceremonies which have to be performed for a valid marriage, this Court on the evidence held that the prosecution had neither established that the essential ceremonies had been abrogated by the custom governing the community to which the parties belonged. In this view it was held that the prosecution in that case had failed to establish that the alleged second marriage had been performed in accordance with the requirement of Section 7 of the Act. The effect of the decision, in our opinion, is that the prosecution has to prove that the alleged second marriage had been duly performed in accordance with the essential religious rites applicable to the form of the marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties. 18. In Kanwal Ram and others v. The Himachal Pradesh Admn. 18. In Kanwal Ram and others v. The Himachal Pradesh Admn. AIR 1966 SC 614 this Court again reiterated the principles laid down in the earlier decision referred to above 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. Another proposition laid down by this decision, which answers the second contention of the learned counsel for the appellant, is, that admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery. 23. Further, as pointed out by this court in Kanwal Ram’s case (supra) the admission in Ex.2 cannot in law be treated as evidence of the second marriage having taken place, in an adultery or bigamy case, and that in such cases it must be proved by the prosecution that the second marriage as a fact has taken place after the performance of the essential ceremonies.” (at p.867-870) (Emphasis supplied) 8. Again in A. Subash Babu vs. State of Andhra Pradesh and another (2011)7 SCC 616 the Supreme Court again holds:- “23. In Gopal Lal v. State of Rajasthan (1979)2 SCC 170 this Court had ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed.”(at p.628) 9.On this point, two more decisions of the Supreme Court in Lingari Obulamma vs. L. Venkata Reddy and others, (1979)3 SCC 80 and S. Nagalingam vs. Sivagami (2001)7 SCC 487 are relied upon. This was also the situation in Santi Deb Verma v.Kanchan Prava Devi 1991 Supp (2) SCC 616 reiterating that ‘saptapadi’ was one of the essential ingredients for proving the valid marriage. It was held:- “7. Mr. This was also the situation in Santi Deb Verma v.Kanchan Prava Devi 1991 Supp (2) SCC 616 reiterating that ‘saptapadi’ was one of the essential ingredients for proving the valid marriage. It was held:- “7. Mr. Dutta, the learned counsel appearing on behalf of the appellant herein assailed the impugned judgment contending that in the absence of acceptable proof that the marriage of the appellant with Namita Ghosh was celebrated or performed with proper ceremonies and in due form, it cannot be said that the marriage had been solemnized within the ambit of the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’) and that the finding of the High Court based on the three letters and the oral evidence to the effect that the appellant and Namita Ghosh were living together to the effect that the appellant and Namita ghosh were living together as husband and wife cannot in any way serve as proof of a valid marriage as per the Act, especially when there is no plea that the marriage was solemnized in accordance with the customary rites and usage which do not include Saptapadi. In other words, it is not the case of the respondent that the marriage was celebrated in accordance with the customs, dispensing with the ceremony of Saptapadi and usage applicable to the parties. In fact, the courts have proceeded on the footing that according to the parties, the ceremony of Saptapadi is one of the essential requirements for constituting a valid marriage. 8. The High Court in the instant case had drawn an inference that all the ceremonies essential for a valid marriage had been performed on the strength of the three letters and the oral evidence as aforementioned. We, after going through the judgment of the High Court very carefully, are of the opinion that the High Court is not at all justified in drawing such an inference in the absence of any reliable and acceptable evidence in regard to the performance of Saptapadi. The result will be that the alleged marriage between the appellant and Namita Ghosh, celebrated in defiance of the law applicable to the parties is held to be a marriage not valid in law. The result will be that the alleged marriage between the appellant and Namita Ghosh, celebrated in defiance of the law applicable to the parties is held to be a marriage not valid in law. Hence, the judgment of the High Court is not sustainable and consequently, we allow the appeal by setting aside the conviction and sentence awarded by the High Court and acquit the appellant.” (at pp. 617-618) 10. However, in S. Nagalingam ‘s case the Supreme Court holds that by virtue of the amendment under Section 7-A of the Hindu Marriage Act, the ‘saptapadi’ ceremonies are not required. But there is no such amendment in the State of H.P. I do not find the evidence of ‘saptapadi’ ceremony having been proved on record and in these circumstances, the judgment of learned trial Court cannot be faulted with. I hold that even in the evidence of PW11 Vishal and PW12 Roop Rekha, who have been declared hostile, there is nothing to suggest that ceremonies necessary for solemnization of a valid marriage have been proved. On the question of cruelty, I find that evidence is speculative but not concrete to prove on record any demand in the form of demand for dowry and cruel treatment meted out to the complainant. I, therefore, find no merit in this appeal, which is dismissed. Bail bonds furnished by the respondents stand discharged.