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2014 DIGILAW 186 (TRI)

Gopal Debnath v. State of Tripura

2014-05-27

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- By the judgment and order dated 06.01.2012, this revision petition was dismissed. However, by the order dated 01.10.2012 passed in Crl. Petn. No. 68 of 2012, the order dated 06.01.2012 has been recalled and placed for re-hearing. Without making any reference to the jurisprudential limitations as regards the order dated 06.01.2012, this matter has been taken up for hearing. 2. By this petition the legality of judgment and order dated 26.08.2004 delivered in Crl. Appl. No. 16(1) of 2004 by the Additional Sessions Judge, Court No. 2, West Tripura, Agartala affirming the judgment and order of conviction and sentence dated 21.02.2004 passed by the Judicial Magistrate, 1st Class, Agartala, West Tripura delivered in CR 2355/2005 has been called in question. 3. Briefly stated the case as unfolded by the prosecution is that the complainant has claimed to be the legally married wife of the petitioner. When she went to live with petitioner at Kailashahar and at Mohanpur after his transfer, she came to know that the petitioner had married another person namely, Shipra Debnath. When the complainant confronted the petitioner about the veracity of what she had heard, the petitioner admitted the fact and during that time and Shipra Debnath launched the criminal proceeding being CR. 718 of 1994 under Section 494 of the I.P.C. against the petitioner. At that time, the complainant was sent to her parents on saying that when the criminal case filed by Shipra Debnath would be finalized, the petitioner would take her back. The complainant came to learn that Shipra Debnath did not abandon the case and accordingly, that was disposed of. But the petitioner did not take the complainant back. The complainant thereafter, filed a complaint for taking cognizance of an offence under Section 495 of the I.P.C. 4. On taking cognizance and on following due course of law, the charge was framed against the petitioner under Section 495 of the I.P.C. to which he pleaded total innocence and claimed to face the trial. 4(four) witnesses were examined by the complainant. For rebutting the evidence of the complainant, the petitioner had examined 4(four) witnesses. In the examination carried out under Section 313 of the Cr.P.C., the petitioner had denied the allegations. 5. 4(four) witnesses were examined by the complainant. For rebutting the evidence of the complainant, the petitioner had examined 4(four) witnesses. In the examination carried out under Section 313 of the Cr.P.C., the petitioner had denied the allegations. 5. After analyses of the evidence, the trial court returned the finding of conviction and sentenced the petitioner to suffer R.I. for 3(three) years and to pay a fine of Rs. 5,000/-(Rupees Five thousand), in default to suffer further R.I. for 6(six) months. 6. Being aggrieved by the judgment and order of conviction and sentence dated 21.02.2004, the petitioner preferred an appeal under Section 374(3) of the Cr.P.C. in the court of the Sessions Judge, West Tripura, Agartala. On transfer, the said appeal was heard and dismissed by the Additional Sessions Judge, West Tripura, Agartala, Court No. 2 holding that on reappraisal of the evidence, no infirmity can be attributed to the judgment of the trial court. 7. The oral testimonies of PW-3, Manik Debnath, a relative of the complainant and PW-4 Nandarani Debnath, another relative of the complainant have been relied heavily by the appellate court. PW-1 and PW-2 have testified that the convict-appellant after transfer to Kailashahar had lived with the complainant as husband and wife. PW-3 and PW-4 have also confirmed the fact that the marriage was solemnized in the month of Falguna between Gopal Debnath and the complainant. That finding was juxtaposed with the testimony of DW-2, Shipra Debnath, who has confirmed that she was married to the petitioner about twelve years back. She has further stated that two years after her marriage with the petitioner, there was a serious misunderstanding and she lived separately for 7(seven) years and she had also set in a criminal proceeding for committing offence of bigamy against her husband. But that proceeding was withdrawn by her. Thereafter, she joined with the petitioner for living together. Indisputably, the finding of conviction has been returned both by the trial court and the appellate court without having any direct evidence of the marriage. Both the marriages have been presumed from the oral testimonies of PWs and DW-2. 8. Mr. S. Sarkar, learned counsel appearing for the petitioner has submitted that for proving a marriage following the Hindu customs and rites it has to be demonstrated by the evidence that either the seventh step was taken or the customs were observed. Both the marriages have been presumed from the oral testimonies of PWs and DW-2. 8. Mr. S. Sarkar, learned counsel appearing for the petitioner has submitted that for proving a marriage following the Hindu customs and rites it has to be demonstrated by the evidence that either the seventh step was taken or the customs were observed. In Section 7 of Hindu Marriage Act, 1955 the ceremonies for a Hindu marriage has been provided. A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Where such rites and ceremonies include the Saptapadi, the taking of ’Seventh Step’ by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the ’Seventh Step’ is taken. Mr. Sarkar, learned counsel to buttress his contention as regards the requirement to prove the offence punishable under Section 495 of the I.P.C. has relied on a decision of the apex court in Bhaurao Shankar Lokhande vs. State of Maharashtra and another, reported in 1965(2) Cri. L.J. 544 : AIR 1995 SC 1564 where it has been held that: Section 494 of the I.P.C. provides that: 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 be liable to fine. Prima-facie the expression ’whoever ..... marries’ must mean or whoever ’marriage ..... marries validly’ or ’whoever ... marries and whose marriage is a valid one, if the marriages is not 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 life of the husband or wife of the person marrying arises. If the marriages were not valid marriage, it is no marriage in the eye of law. The bare fact of man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. The bare fact of man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. Apart those considerations, as the Supreme Court has enunciated the law in Bhaurao Shankar Lokhande, there is nothing in Hindu law as applicable to marriages till the enactment of Hindu Marriage Act, 1955, which made a second marriage a male Hindu, during the lifetime of his previous wife, void. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void, if at the date of such marriages either party has a husband and wife living. 9. The apex court has observed in that context as under: ............that the provisions of Ss. 494 and 495, I.P.C. shall apply accordingly. The marriage between two Hindus is void in view of S. 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be ’solemnized’, that marriage will not be void by virtue of S. 17 of the Act and S. 494, I.P.C. will not apply to such parties to the marriage as had a spouse living. (5) 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. It 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 S. 17 of the Act, that the marriage to which S. 494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in the 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. (6) We are of opinion that unless the marriage which took place between appellant No. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been ’solemnized’ and, therefore, appellant No. 1 cannot be held to have committed the offence under S. 494, I.P.C. 10. In Lingari Obulamma vs. L. Venkata Reddy and Others, reported in (1979) 3 SCC 80 , the apex court has formulated the essential ingredients which are required to be proved for purpose of recording a conviction under Sections 494/495 of the I.P.C. The ingredients can be catalogued as under: (a) that the complainant had been married to the accused (b) that the accused contracted a second marriage while the first marriage was still subsisting; and (c) that both the marriages were valid and strictly according to law governing the parties. 11. In Lingari Obulamma, the apex court has illustrated the interplay of those ingredients in the manner as under: 6. In the instance case there was no evidence to show that there was any custom amongst the Reddys which outweighed the written text of law. The evidence of PW-1 clearly falls short of the standard to prove this fact. Mr. Rao, however, strongly relied on a decision of the Andhra Pradesh High Court in some other case to show that among the Reddy community of Telangana area the two ceremonies mentioned above were not necessary. In the first place the decision referred to above in the case of re Dolgonti Raghava Reddy: AIR 1968 AP 117 clearly shows that the Court in that case was concerned only with the Reddy community of Telangana alone. The trial Court has pointed out in its judgment that so far as accused is concerned he belongs to the Reddy community not of Telangana area, but that of Raialsena area. In these circumstances the judgment of the High Court cannot be of any avail to the appellant. The trial Court has pointed out in its judgment that so far as accused is concerned he belongs to the Reddy community not of Telangana area, but that of Raialsena area. In these circumstances the judgment of the High Court cannot be of any avail to the appellant. Moreover, as the existence of the custom was neither mentioned in the complaint nor proved in the evidence it would be difficult for this Court to rely on the decision of the High Court which was based on the evidence, facts and circumstances of the case before it. In these circumstances we agree with the High Court that the prosecution had failed to prove that the second marriage contracted by respondent 1 with respondent 4 was a valid marriage and, therefore, the High Court was fully justified in acquitting the respondents. The appeal is without any substance and is accordingly dismissed. 12. In Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh, reported in 1971(1) SCC 864 , the apex court has further developed the law by eliminating the uncertainty as to what has to be proved in a prosecution for bigamy or for that matter, concealment of marriage for purpose of bigamy. The principle as laid down in Kanwal Ram and Others vs. The Himachal Pradesh Admn., reported in (1966) 1 SCR 539 has been reiterated in Priya Bala Ghosh by observing that in a prosecution for bigamy the second marriage has to be proved as a fact and it must be proved that necessary ceremonies had been performed. Admission of marriage by an accused is no evidence of marriage for purpose of proving an offence of bigamy and adultery. In a bigamy case, the second marriage as the fact, the ceremonies constituting it, must be proved. In Morris vs. Miller; 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. In Priya Bala Ghosh, the apex has rejected the proposition that it is not necessary to prove all the ceremonies required for the particular form of marriage. 13. Mr. Sarkar, learned counsel appearing for the petitioner has vigorously submitted that the complainant has failed to prove the first marriage and the second marriage. In Priya Bala Ghosh, the apex has rejected the proposition that it is not necessary to prove all the ceremonies required for the particular form of marriage. 13. Mr. Sarkar, learned counsel appearing for the petitioner has vigorously submitted that the complainant has failed to prove the first marriage and the second marriage. The complainant has merely stated that on 13.03.1994 the petitioner had married her as per Hindu rites and ceremonies in the house of PW-2, her father and thereafter, they had lived together and cohabited as husband and wife at different places. He has further submitted that the other PWs have stated nothing more than that. Therefore, there is no proof of the fact of the marriage and thus, the conviction is uncalled for and it requires interference from this Court. 14. From the other side, Mr. A. Ghosh, learned P.P. appearing for the State has submitted that all PWs have categorically submitted that the marriage of the petitioner and the complainant was solemnized as per Hindu rites and customs by a Hindu priest namely, Agni Chakraborty in presence of the relatives and the villagers. As such, it cannot be stated that the fact of marriage was not proved. He has also relied on the testimony of DW-2, who has admitted her marriage with the petitioner 12(twelve) years prior to the day of deposing in the trial. According to Mr. Ghosh, learned P.P. the complainant has proved her case and as such, no interference is required inasmuch as no illegality has been demonstrated by the petitioner. 15. On scrutiny of the records, it has surfaced that the priest who conducted the alleged marriage of the petitioner and the complainant was not examined and PWs have baldly stated that the marriage had taken place as per Hindu rites and customs. Whether the Seventh Step was complete or not, nobody has stated anything of that. Apart that, which customs or rites had been followed in the marriage has not been stated either in the complaint or in the testimonies. 16. Whether the Seventh Step was complete or not, nobody has stated anything of that. Apart that, which customs or rites had been followed in the marriage has not been stated either in the complaint or in the testimonies. 16. In Priya Bala Ghosh, the apex court on interpreting the word ’solemnized’ appearing in Section 17 of the Hindu Marriage Act, 1955 whereby it has been provided that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or a wife living; and the provisions of Section 494 and 495 of the I.P.C. shall apply accordingly; has reiterated the law enunciated by Bhaurao Shankar Lokhande. It has been held in no uncertain term that it is 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 celebrated with proper ceremonies and in due form. Merely going through certain ceremonies if the intention that the parties to be taken to marriage, will not make the ceremonies prescribed by law or approved by any established custom. Thus, the law is made definite so far the requirement of proof of marriage is concerned. Mere statement that the marriage is solemnized as per Hindu rites and customs is not enough. It has to be proved that all the required ceremonies in due form had been observed. Even observance of certain ceremonies would not allow anyone to claim that the parties be taken to be married or partial observance of the rites or ceremonies will not complete the requirement of the ceremonies for a Hindu marriage as prescribed by Section 7 of the Hindu Marriage Act. Thus it is essential that the second marriage has to be proved to have been celebrated with proper ceremonies with due form. 17. This Court further finds that even there is no proof of the fact as regards the petitioner’s marriage with DW-2, Shipra Debnath. Consequence of admission has been discussed in Priya Bala Ghosh and Morris. That apart, by the passage of time Kanwal Ram and Bhaurao Shankar Lokhande have been proved as the correct enunciation of the law. So has been observed in Lily Thomas vs. Union of India & Others: (2000) 6 SCC 224 . Consequence of admission has been discussed in Priya Bala Ghosh and Morris. That apart, by the passage of time Kanwal Ram and Bhaurao Shankar Lokhande have been proved as the correct enunciation of the law. So has been observed in Lily Thomas vs. Union of India & Others: (2000) 6 SCC 224 . Another feature that needs to be noticed is that no cognizance against the petitioner has been taken under Section 494 of the I.P.C. but cognizance under Section 495 of the I.P.C. has been taken. Unless an offence is committed under Section 494 of the I.P.C., no offence can be sustained under Section 495 of the I.P.C. Section 495 provides that whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of former marriage, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Therefore, unless against someone it is proved that he has committed the office punishable under Section 494 of the I.P.C. no charge can be maintainable under Section 495 of the I.P.C. This provision has been engrafted for higher punishment for concealing from the person with whom the subsequent marriage is contracted the fact of the former marriage. The cognizance ought to have been taken both under Sections 494 and 495 of the I.P.C. for two distinct but intra related offences as alleged in the complaint. No attempt has been made by the complainant to prove that the petitioner has committed the offence provided in Section 494 of the I.P.C. Apart that, this Court does not find any proof of valid marriage contracted by the petitioner with the complainant. Even the Hindu priest who conducted the marriage has been withheld by the complainant. From the testimonies of PWs, no description of the ceremonies is available and as such, this Court has to observe that there is no proof of valid marriage contracted by the petitioner with the complainant. As stated before, even such proof is not available for the former marriage. From the testimonies of PWs, no description of the ceremonies is available and as such, this Court has to observe that there is no proof of valid marriage contracted by the petitioner with the complainant. As stated before, even such proof is not available for the former marriage. So far the former marriage is concerned, both the trial court and the appellate court have committed serious error of law having relied the testimonies of DWs 1 & 2 inasmuch as their testimonies as to the former marriage have been considered as ’admission’ contrary to what has been held by the apex court in Priya Bala Ghosh. What is required to be strictly proved is the fact as to the marriage and to prove that fact the ceremonies in due form has to be brought in the evidence and in absence thereof, no person can be convicted either under Sections 494 or 495 of the I.P.C. 18. Having held so, the impugned judgment and order is set aside. Consequently, the judgment and order of conviction and sentence passed by the trial court, as stated, stands interfered with and quashed. The petitioner is acquitted from the charge on benefit of doubt. The sureties are discharged. In the result, this petition is allowed.