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Jharkhand High Court · body

2019 DIGILAW 2009 (JHR)

Rohidas Mahato @ Ruhidas v. State of Jharkhand

2019-12-13

DEEPAK ROSHAN

body2019
JUDGMENT : 1. The instant application is directed against the judgment dated 31.07.2014 passed by the learned 1st Additional Sessions Judge, Seraikella-Kharsawan in Criminal Appeal No. 21 of 2010, whereby the appeal preferred by the petitioners have been partly allowed and the judgment of conviction and order of sentence dated 19.04.2010 passed by the learned Sub-Divisional Judicial Magistrate, Seraikella in G.R. Case No. 414 of 2004, whereby the petitioners have been convicted for the offence under Section 498A of the Indian Penal Code and Sections 3/ 4 of the Dowry Prohibition Act, has been modified. 2. The learned appellate court in its judgment sustained the conviction of the petitioners so far as the offence under Section 498A IPC is concerned, however, acquitted the petitioners from the charge under Sections 3/ 4 of the Dowry Prohibition Act. 3. The learned counsel for the petitioners vehemently argued that they are innocent and have falsely been implicated in this case. He further submits that there is no valid marriage between the complainant and the petitioner no. 1, Rohidas Mahato @ Ruhidas. He further submits that the learned trial court has committed a gross error in holding the marriage on the basis of simple affidavit which cannot be considered as a right of the parties to live as husband and wife. He further submits that to constitute an offence under Section 498A of the Indian Penal Code the most important ingredient is that the accused persons must be either husband or his family members. He further draws attention of this Court towards the major contradictions among the deposition of the prosecution witnesses. Relying upon the depositions of prosecution witnesses, he submits that the learned trial court has committed an error in holding that there was valid marriage and on the principle of maintenance, he convicted the petitioners. The learned appellate court also did not take into consideration the specific defence of the petitioners that no marriage has ever been solemnized between the petitioner no. 1 and the complainant and as such, no case is made out under Section 498A of the Indian Penal Code. 4. Per contra, learned A.P.P. has opposed the prayer made by the petitioners. 5. Heard learned counsel for the petitioners and the learned A.P.P. for the State. 6. 1 and the complainant and as such, no case is made out under Section 498A of the Indian Penal Code. 4. Per contra, learned A.P.P. has opposed the prayer made by the petitioners. 5. Heard learned counsel for the petitioners and the learned A.P.P. for the State. 6. The peculiar facts of the case insisted this Court to look into the evidences which clearly transpires that none of the prosecution witnesses have said that there was a valid marriage. P.W. – 1, P.W. – 2 has admitted that the marriage was not solemnized according to the social customs and rites. Even P. W. – 3 has stated that there was no valid marriage. P. W. – 5 has also supported the contention of the accused persons by submitting in Paragraph – 5 of his deposition that marriage of petitioner no. 1 and the complainant was not solemnized according to their customs and rites. Even the father of the complainant who is P.W. – 6 also admits that the marriage was not performed in the house rather, it was done through affidavit. This witness has also admitted the fact that there was no demand of any amount. Even the complainant who is P.W. – 7 has admitted before the court in her cross-examination that no family members of her husband was present. She also admits that the marriage has been solemnized through an affidavit. 7. In criminal jurisprudence the prosecution has to prove its case beyond all shadow of reasonable doubt and no person can be convicted on mere surmises and conjuncture. In the instant case, there is an admitted position that none of the witnesses has deposed that there was a social marriage between the complainant and the petitioner no. 1. The only fact which has been proved by the prosecution is that an affidavit has been sworn by the husband to the effect that the complainant is his wife. It is settled law that to constitute a marriage in the eye of law it has first to be established that the same was valid marriage. The bare fact that a man and woman live as husband and wife does not at any rate give them the status of husband and wife even though they may hold themselves before the society as husband and wife. The bare fact that a man and woman live as husband and wife does not at any rate give them the status of husband and wife even though they may hold themselves before the society as husband and wife. In the case of Reema Aggarwal v. Anupam And Others reported in (2004) 3 SCC 199 , the Hon’ble Apex Court has dealt this issue in Paragraphs – 8 and 9 which are quoted here-in-below: “8.In response, learned counsel for the respondents submitted that to constitute a marriage in the eye of the law, it has first to be established that the same was a valid marriage. Strong reliance was placed on Bhaurao Shankar Lokhande v. State of Maharashtra in that context. Reference was also made to Sections 5(i), 11 and 16 of the Hindu Marriage Act, 1955 (for short “the Marriage Act”) to contend that the stipulations of conditions of a valid marriage, the circumstances in which the marriage becomes void and the protection given to children of void and voidable marriages respectively makes the position clear that wherever the legislature wanted to provide for contingencies flowing from void or voidable marriages, it has specifically done so. It is latently evident from Section 16 of the Marriage Act. There is no such indication in Section 498-A IPC. The language used is “husband or relative of the husband”. Marriage is a legal union of a man and a woman as husband and wife and cannot extend to a woman whose marriage is void and not a valid marriage in the eye of the law. 9. The marriages contracted between Hindus are now statutorily made monogamous. A sanctity has been attributed to the first marriage as being that which was contracted from a sense of duty and not merely for personal gratification. When the fact of celebration of marriage is established, it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long back as in 1869 “when once you get to this viz. that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law”. As was said as long back as in 1869 “when once you get to this viz. that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law”. (See Inderun Valungypooly Taver v. Ramaswamy Pandia Talaver, Moo IA p. 158.) So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. (See Sastry Velaider v. Sembecutty following De Thoren v. Attorney General and Piers v. Piers.) Where a marriage is accepted as valid by relations, friends and others for a long time, it cannot be declared as invalid. In Lokhande case it was observed by this Court: (AIR p. 1565, para 3) The bare fact that a man and woman live as husband and wife does not at any rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife. These observations were cited with approval in Surjit Kaur v. Garja Singh. At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases. In Lokhande case this Court was dealing with a case of prosecution for bigamy. The prosecution had contended that second marriage was gandharva form of marriage and no ceremonies were necessary and, therefore, did not allege or prove that any customary ceremonies were performed. In that background, it was held that even in the case of gandharva marriages, ceremonies were required to be performed. To constitute bigamy under Section 494 IPC, the second marriage had to be a valid marriage duly solemnized and as it was not so solemnized it was not a marriage at all in the eye of the law and was therefore invalid. The essential ingredient constituting the offence of bigamy is the “marrying” again during the lifetime of husband or wife in contrast to the ingredients of Section 498-A which, among other things, envisage subjecting the woman concerned to cruelty. The essential ingredient constituting the offence of bigamy is the “marrying” again during the lifetime of husband or wife in contrast to the ingredients of Section 498-A which, among other things, envisage subjecting the woman concerned to cruelty. The thrust is mainly on “marrying” in Section 494 IPC as against subjecting of the woman to cruelty in Section 498-A. Likewise, the thrust of the offence under Section 304-B is also on “dowry death”. Consequently, the evils sought to be curbed are distinct and separate from the persons committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabit and exercise authority as such husband over another woman. As the prosecution had set up a plea of gandharva marriage and had failed to prove the performance of ceremonies, it was not open to fall back upon the presumption of a valid marriage. It was further held that there was no such presumption if the man was already married. In Surjit Singh case the stand was that the marriage was in karewa form. This Court held that under the custom of karewa marriage, the widow could marry the brother or a relation of the husband. But in that case the man was a stranger. Further, even under that form of marriage certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference was made to Lokhande case. As the parties had set up a particular form of marriage which turned out to be invalid due to absence of proof of having undergone the necessary ceremonies related to such form of marriage, the presumption of long cohabitation could not be invoked.” 8. From the above judgment of the Hon’ble Apex Court of India, it clearly transpires that there has to be a valid marriage. Simply living with a lady cannot give a presumption that there is a valid marriage. From the above judgment of the Hon’ble Apex Court of India, it clearly transpires that there has to be a valid marriage. Simply living with a lady cannot give a presumption that there is a valid marriage. In the instant case, the entire prosecution witnesses except the complainant have deposed that marriage has not solemnized as per social customs and rites so much so that the father of the complainant himself admitted that the marriage was not performed in their house. The statement of the complainant is contradictory even with that of her brother and her father to the extent that her brother, P.W. – 8, stated in his evidence that the marriage of his sister was performed with Rohidas Mahato @ Ruhidas before the Notary Public by way of an affidavit whereas the complainant deposed that her marriage was performed in the society according to social rites and customs. As a matter of fact, the entire prosecution witnesses except the complainant have categorically deposed that marriage was not performed as per the social rites and customs. 9. In my considered opinion, the affidavit sworn by the petitioner no. 1 could not be considered as a valid document for a valid marriage. It is not a case of prosecution that the petitioner has convinced the complainant that the affidavit itself constitutes a valid marriage. 10. In this view of the matter, I am of the considered opinion that since the affidavit cannot be considered as a valid document for a valid marriage and the marriage has not been performed as per the Hindu rites and customs, the petitioners cannot be convicted for the offence under Section 498A of the Indian Penal Code. This aspect of the matter has not been considered by the learned trial court as well as by the learned appellate court making both the orders cryptic. 11. As a result, the instant revision application is allowed. The 1st judgment dated 31.07.2014 passed by the learned Additional Sessions Judge, Seraikella-Kharsawan in Criminal Appeal No. 21 of 2010 and the judgment of conviction and order of sentence dated 19.04.2010 passed by the learned Sub-Divisional Judicial Magistrate, Seraikella in G.R. Case No. 414 of 2004 are, hereby, set aside. 12. The petitioners shall be discharged from the liability of their bail bonds. 13. Let the lower court record be send back to the court concerned forthwith.