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Himachal Pradesh High Court · body

2013 DIGILAW 542 (HP)

Satya Devi v. Khem Chand

2013-06-14

R.B.MISRA, SURINDER SINGH

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JUDGMENT Surinder Singh, J (oral): The appellant had filed a private complaint before the learned Judicial Magistrate Ist Class, Joginder Nagar, District Mandi, H.P. under the various offences, but the respondent was charge- sheeted for the offences punishable under Sections 493, 494 and 495 of the Indian Penal Code and at the end of trial, he was acquitted, as such, the present appeal. 2.Precisely, the case of the appellant was that in the year 1995, the respondent had solemnized marriage with her and sworn an affidavit dated 27.11.1998 before the Notary Public at Joginder Nagar. Thereafter, they were living together as husband and wife nicely till the year 1999. From this wedlock, the appellant gave birth to a male child and his birth was entered in the Panchayat concerned, but from the year 2000, the respondent started ill-treating the appellant and demanded dowry, consequently, she lodged FIR. 3. The respondent was called by the police and admitted marriage with her and to her utmost surprise he stated that he was already married with another woman having four children and the appellant was turned out since then, she is residing in her parental house. Thereafter, she collected copy of Pariwar register showing that the respondent was already married and during existing marriage, he is alleged to have married again with the appellant, as such committed an offence, the appellant was deceived and the respondent was also guilty of bigamy. 4.She led her pre-charge evidence. Finding sufficient grounds, to proceed against the respondent, he was accordingly summoned and on preliminary evidence, charges were framed under the aforesaid sections. Thereafter, the appellant stepped into witness-box and tendered herself for cross-examination, but examined non-else to prove her case. Thereafter, the respondent was examined under Section 313 of the Code of Criminal Procedure. He pleaded innocence and alleged false implication. 5. The learned trial Court came to the conclusion that there was no cogent proof in accordance with law qua marriage of the appellant with the respondent, thus, no offence is made out. Hence the respondent was acquitted and feeling aggrieved the instant appeal was filed through counsel Shri Dharamvir Sharma, Advocate, but none appeared today for the appellant. 6. 5. The learned trial Court came to the conclusion that there was no cogent proof in accordance with law qua marriage of the appellant with the respondent, thus, no offence is made out. Hence the respondent was acquitted and feeling aggrieved the instant appeal was filed through counsel Shri Dharamvir Sharma, Advocate, but none appeared today for the appellant. 6. Since the appeal pertains to the year 2005, thus in view of the judgment of the Apex Court rendered in K.S. Panduranga v. State of Karnataka [JT 2013 (3) SC 514], we decided to hear the appeal in absence of the counsel for the appellant after examining the material on the record. 7. The statement of appellant Satya Devi is of utmost importance. She was examined on 7.12.2001 before framing of the charges. She stated that she married the respondent in the year 1995, regarding which respondent had sworn an affidavit Mark-X and started living together as husband and wife. From this wedlock, she delivered a baby on 17.7.1999. Thereafter, the respondent started torturing her, as such filed a complaint before the police and thereafter a private complaint, when she came to know that the respondent was already married. With respect to this statement, she tendered herself to the cross-examination after framing of the charges and in her cross-examination on 9.9.2004, denied that no such marriage was ever solemnized by the respondent with her, but failed to prove affidavit Mark-X. 8.Now the question is whether this evidence attracts the provisions of Sections for which the respondent was charge-sheeted. 9.The parties are Hindu and Section 7 of the Hindu Marriage Act deals with the ceremonies of Hindu Marriage, which reads 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 Saptapadi (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”. 10.According to the law prevalent amongst them either the marriage could be solemnised in accordance with customary rites and other ceremonies of either party thereto; where Saptapadi is essential rites to be performed for solemnization of the marriage. There is no specific evidence regarding the performance of these essential rites. 10.According to the law prevalent amongst them either the marriage could be solemnised in accordance with customary rites and other ceremonies of either party thereto; where Saptapadi is essential rites to be performed for solemnization of the marriage. There is no specific evidence regarding the performance of these essential rites. The appellant has also not proved that the marriage could also be performed by swearing affidavit. 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 shall apply accordingly”. 13.Again in the case before us there is no controversy as per allegations that the second marriage is stated to have taken place after the commencement of the Act during the subsistence of the first marriage as alleged which fact is denied by the respondent. 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 or wife 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”. 14.In Bhaurao Shankar Lokhande v. State of Maharashtra, (1965) 2 SCR 837 = ( AIR 1965 SC 1564 ), the question arose before the apex Court, whether in a prosecution for bigamy under Section 494 of the Indian Penal Code, 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 of the Indian Penal Code 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 of Indian Penal Code, 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. The apex 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 or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law”. 15.In Priya Bala Ghosh v. Suresh Chandra Ghosh [ AIR 1971 SC 1153 ] the Apex Court dealt with the similar proposition and in interpreting the word “solemnize” in Section 17 of the Act, it was held that the word ‘solemnize’ means in connection with this marriage, ‘to celebrate the marriage with proper ceremonies and in due form’. 15.In Priya Bala Ghosh v. Suresh Chandra Ghosh [ AIR 1971 SC 1153 ] the Apex Court dealt with the similar proposition and in interpreting the word “solemnize” in Section 17 of the Act, it was held that the word ‘solemnize’ means in connection with this marriage, ‘to celebrate the marriage with proper ceremonies and in due form’. 16.Applying the aforesaid judgment in the case in hand, it is clear that if the alleged second marriage is not valid one according to law applicable to the parties, it will not be void by reason of its taking place during the life time of the husband or the wife of the person marrying so as to attract Section 494 of Indian Penal Code. 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. Since the appellant had failed to prove her marriage in accordance with law with essential religious rites applicable to parties, which is sine-quo non for bigamy, mere admission of the appellant, if any would not be enough. Therefore, we do not find any substance in the present appeal, hence dismissed being without merit. 18.The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. The matter stands disposed of. 19.Send down the records.