Calcutta High Court
Subir Kumar Kundu Alias Sambhu vs State Of West Bengal on 19 December, 1990
Equivalent citations: 1992CRILJ1502
JUDGMENT A.M. Bhattacharjee, J.
1. The accused-petitioner was convicted by the trial Court under Section 494 of the Penal Code for committing the offence of bigamy and the conviction and also the sentence imposed by the trial Court have been affirmed in appeal. Mr. Balai Roy, the learned Counsel for the accused-petitioner, has assailed the conviction mainly on two grounds, the first being that the alleged second marriage has not been proved as the essential ceremonies required for its solemnisation have not been proved beyond reasonable doubt, and the second being that various circumstances relied on by the trial Court in support of the conviction were not put to the accused in his examination under Section 313 of the Criminal P.C.
2. At least from 1869 when the Privy Council decided Inderun v. Ramaswamy, 13 Moere's Indian Appeals 141, the law appears to be well-settled (at 158) for more than a century that "if there was a marriage in fact, there would be a presumption in favour of there being a marriage in law". In 1911, the Privy Council again declared in Mouji Lal v. Chandrabati, ILR 38 Calcutta 700 at 707, that to "matters of form and ceremony, the established presumption in favour of marriage undoubtedly applies". In 1947, the Privy Council in Kashi Nath v. Bhagwan Das AIR 1947 Privy Council 168, referred to and reaffirmed what it declared in Inderun (supra). And in 1962, the Supreme Court in Veerappa v. Michael, , referred to Mouji Lal (supra) and ruled that "where it is proved that the marriage was performed in fact, the Court will also presume that the necessary ceremonies have been performed".
3. This impressive array of binding authorities should lead one to conclude that in any proceeding involving the question relating to the validity of a marriage in the sense as to whether the ceremonies necessary to constitute the marriage were performed, the proof of the fact of going through a form of marriage would lead to the presumption that the ceremonies necessary to constitute such marriage were also performed. One would have also been inclined to think that there should be no good reasons as to why such a presumption cannot be raised and acted upon in prosecutions for bigamy also.
4. Mr. Roy has, however, urged that in a prosecution for bigamy, the provide to Section 50 of the Evidence Act would repel the operation of such presumption. But all that the said Proviso provides is that in a prosecution for bigamy under Sections 494 and 495, Penal Code, the opinion of others, expressed by conduct, shall not be sufficient to prove a marriage. Ex facie, at least, we find nothing in Section 50, Evidence Act or in the proviso thereto to militate or to have any thing to do against any presumption as to the due observance of forms and ceremonies arising from the proof of performance of a marriage in fact. And if the Court, will have to presume due observance of forms and performance of ceremonies, then one would have thought further that the Court will have to regard such observance and performance as proved, unless they are disproved by evidence in accordance with the principles enacted in the definition of "shall presume" in Section 4 of the Evidence Act.
5. Mr. Roy has, however, urged that such a presumption is nevertheless impermissible in a prosecution for bigamy and has contended that the matter appears to be concluded by a series of Supreme Court decisions and also by the decisions of our Court following them.
6. It is not, as it cannot be, the law that a criminal conviction solely on the basis of permissible legal presumption is illegal and convictions grounded solely on such presumption have been upheld by the Privy Council, the Supreme Court and the High Courts times without number. Under the law there is a permissible presumption -- vide, Section 114(a), Evidence Act -- that a person found to be in possession of recently stolen articles is, in the absence of any reasonable explanation, either the thief or has received the articles knowing them to be stolen. And in Otto George Gefller v. King (AIR 1943 Privy Council 211 at 214), the Privy Council ruled that an accused could legally be held to be guilty on such presumption. This decision has been relied on by the Supreme Court in Karnel Singh v. State of Maharashtra, and in Nagappa Dondiba v. State of Karnataka, the Supreme Court has again upheld the conviction under Section 411, Penal Code on the basis of such presumption.
7. No one would ever doubt the legality of a conviction solely on the basis of circumstantial evidence. But is not circumstantial evidence, in effect, presumption and suppositions and inferences from circumstances ? As pointed out in Halsbury's Laws of England, (3rd Edition, Volume 15, page 263), facts which lead to a conclusion necessary to prove or disprove a fact in issue may be established directly or by inference and "evidence of facts which inferentially leads to such a conclusion is described as presumptive or circumstantial" Circumstantial evidence is nothing but evidence of some facts, other than the fact in issue, leading to a presumption or inference of the principal fact, (Sarkar on Evidence, 13th Edition, Volume 1, page 37). Sometimes, circumstantial evidence is treated as a genus with 'presumptive evidence' as a species, the other species being labelled as 'conclusive evidence'; but both are presumptive with variation in degree.
8. That presumption in favour of everything necessary to validate a marriage has always been regarded by the Courts to be of exceptional strength would also appear from the old decision of this Court in Lopez v. Lopez, (ILR 12 Calcutta 706 at 732), and the Courts have virtually issued a self-imposed command to themselves to the effect that "the Court will presume" due performance of all requisite ceremonies from the circumstances of a marriage in fact. And, as already indicated, one would have thought that, there should be nothing in law to prevent a conviction for bigamy on such a finding as to a marriage being valid in form from the proof of its celebration in fact. But notwithstanding all these, the contention of Mr. Roy that a conviction for bigamy cannot be sustained on such presumption alone and must fail unless the observance of the requisite form and performance of the necessary ceremonies are affirmatively proved, appears to have formidable substance in view of the series of decisions of the Supreme Court. The decisions of the Supreme Court are five in number and they are Bhaurao, , Kanwal Ram, , both decided in 1965. Priya Bala AIR 1971 SC 1153 : (1971 Cri LJ 939) decided in 1971 and Lingari Obulamma, and Gopal Lal, , both decided in 1979.
9. In Bhaurao (supra), it was observed by the Supreme Court that the expression "whoever ....marries" in Section 494 must mean "whoever marries validly" or "whoever marries and whose marriage is a valid one", because "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". These observations have been quoted with approval in Priya Bala (supra) and it has been ruled that "it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties", it would not attract Section 494 of the Penal Code. In Lingari Obulamma (supra) also, it has been observed that "it is well-settled that before a conviction can be recorded under Section 494", it "must be proved...that both the marriages were valid and strictly according to law governing the parties".
10. The expression "both the marriages were valid" would apparently appear to be blatantly contradictory as Section 494 can be attracted only when the second marriage is void under the law for being bigamous. Therefore, all that this apparently contradictory expression should mean (Halsbury's Laws of England, 3rd Edition, Volume 10, page 664) is that it must be proved that the accused, being already married and having the intention of appearing to contract a second marriage, has gone "through a form known to and recognised by the law as capable of producing a valid marriage". The expression "whoever marries validly" in the observations of the Supreme Court should, therefore, be construed to mean "whoever goes through a form of marriage known to and recognised by the law as capable of producing a valid marriage" and the expression "marriage" in Section 494 would accordingly mean marriage valid in form though not in law and the expression "marries" in that section would thus mean going through such form of marriage. This aspect appears to have been clarified in Gopal Lal (supra at 714, 715) decided by the same Bench few days after Lingari Obulamma (supra), and it has been observed that "the second marriage is required to be a valid one in the sense that the necessary ceremonies required by law or custom have been actually performed". A solemnisation of marriage, that is, a marriage "celebrated or performed with proper ceremonies and due form", a marriage valid in form only, is all that is necessary, and not a marriage valid in law, which a bigamous marriage cannot obviously be.
11. In view of the ratio of the aforesaid decisions of the Supreme Court, we would have to accept the contention of Mr. Roy that a case for bigamy (unless any of the marriages is under the Special Marriage Act) would entirely depend on the positive proof of observance and performance of forms and ceremonies required to constitute a valid marriage. It is generally said that the all-pervading fear-psychosis of the primitive men resulted in the belief that the union between the sexes was also impregnated with danger and in their endeavour to avert such danger, all the resources of magic had to be utilised leading to the development of this elaborate code of nuptial rites and ceremonies (Crawley -- The Mystic Rose, page 222) and it seems that even at this distant time of the impending 21st century, we are still required to attach great weight to the occult or mysterious forces of these rituals and ceremonies.
12. In all the four Supreme Court decisions, namely, in Bhaurao (supra), Kanwal Ram (supra), Priya Bala (supra) and Lingari Obulamma (supra), the prosecution failed as it was not proved that the essential ceremonies necessary for the solemnisation of a marriage were performed, even though there was sufficient evidence to show that a ceremony of marriage was performed.
13. To be more precise, in all these cases, the prosecution failed as it was not specifically proved that both the two essential ceremonies required for solemnisation of a Hindu marriage, namely, Vivaha Homa and Saptapadi were performed. Even though there could be justified scope for an academic debate as to whether non-performance of Saptapadi or its mutilated performance would, by itself, invalidate an otherwise duly solemnised marriage, (See, for example, (a) Sir Gooroodass Banarjee's Law of Marriage and Stridhana, 2nd Edition, page 97, (b) Sri H. S. Gour's Hindu Code, 5th Edition, Volume I, pages 217-218, (c) M. L. Jain's Article in AIR 1961 Journal 84, (d) K. S. Mathur's Article in AIR 1962 Journal 27, (e) Dr. Paras Diwan's Article in 1977-2 Supreme Court Case (Journal) 22, etc.), our ancient law-givers like Manu and the modern law-givers like parliament in Section 7, Hindu Marriage Act, 1955 and the Supreme Court in the aforesaid decisions are categorical in returning an affirmative answer.
14. In the two judgments of the Courts below, there is no finding at all that Saptapadi i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, as distinguished from Satpak which is entirely a different customary rite prevalent in this part of India among Bengali Hindus, of the bride going round the groom seven times, was performed. We have looked through the evidence on record, which we can and which was also done by the Supreme Court in Gopal Lal (supra, at 715), and all that we find from the evidence of P.W. 5 and P.W. 6 is a narration of some of the rituals other than Saptapadi and then a bald statement that "all other formalities regarding Hindu marriage were performed". As ruled by the Supreme Court in the abovenoted decisions, there must be specific finding as to the performance of Saptapadi based on specific evidence. As would appear from Priya Bala in particular (supra, at 1154-1155), a finding as to the performance of Saptapadi (or Vivaha Homa) cannot be sustained on some such statement like "all formalities were performed" or statement coming from even the Priest that "marriage was solemnised according to Hindu rites". Evidence of lay persons like P.W. 5 or P.W. 6 as to the performance of any specific and particular rite or rites may go in; but their statement to the effect that all formalities or requisite rites were performed would fail as mere incompetent opinion evidence, unless the statement spells out what those rites or formalities were to enable the Court to come to a finding that all the rites and ceremonies essentially required for the solemnisation of a Hindu marriage were performed. As already noted, none of the Courts below has made any finding as to the performance of Saptapadi, nor we have been able to find any evidence as to its performance.
15. The Courts below have placed strong reliance on the alleged admission of the accused-woman contained in her letter addressed to the accused-husband, being Ext. 3. The Supreme Court decisions in Kanwal Ram (supra, at 65) and in Priya Bala (supra, at 1157) are, however, clear and categorical authorities for the view that "admission of marriage by the accused is not evidence of it for the purpose proving marriage in an adultery or bigamy case". To our knowledge, there does not appear to be any foundation for such a broad proposition in our statutory law relating to Crimes, Criminal Procedure or Evidence. We do not know why an admission as to the second marriage by any of the parties thereto shall be no evidence at all to be taken into consideration. Accepting, as we must, that, as ruled in Kanwal Ram (supra) and Priya Bala (supra), such admission, by itself, cannot be "evidence of the fact that second marriage has taken place after the ceremonies constituting the same have been gone through", we do not know why the same cannot be pressed into service at least to lend assurance to the other evidence on record in support of the alleged second marriage. But we are not to question why. Even in our Shastric law, the great weight used to be attached to marriage rituals has undergone considerable dimunition and while the earlier view was that a forcible marriage was no marriage until and unless performed according to Shastric rites (Mantrai Yadi Na Sanskrita), the later view consistently adopted is that even where the requisite nuptial rites were performed, a forcible marriage was no marriage (Valat Vivqhopi Avivaha).
16. The alleged admission in this case appears to be contained in Ext. 3, a letter written to the accused-husband by the co-accused woman alleged to be the wife of the second marriage where she has written that she has already disclosed to others that she and he are already married and that she has to suffer so much for this marriage that she might have to commit suicide. Be that as it may, governing ourselves by Kanwal Ram (supra) and Priya Bala (supra), we would have to exclude this admission from our consideration. But that apart, we are also satisfied that we would have to do so yet for another weighty reason, the reason being that the alleged admission was not put to the accused by the trial Court while they were being examined under Section 313 of the Criminal P.C. It is now settled law that if the attention of the accused is not drawn to any material appearing in the evidence against him while he is being examined under Section 313, the same cannot be used against him at the trial.
17. We are, therefore, left with no other alternative than to accept the contention of Mr. Roy that the accused, alleged to be the husband to the second marriage, cannot be convicted of the offence under Section 494 and, therefore, the other two accused also cannot be convicted for abetting the commission of any such offence under Section 494 read with Section 109 of the Penal Code. The other two accused could not be convicted for abetment also on the ground that there is no finding by any of the Courts below that they knew or had any reason to know that the other accused, alleged to be the husband to the second marriage, was already married to another woman.
18. But even if the charge under Section 494 fails in the absence of positive and specific proof of performance of the requisite ceremonies, cannot the accused, alleged to have performed the bigamous marriage, be convicted of the offence of attempt to commit bigamy, i.e., under Section 494 read with Section 511, Penal Code ? As pointed out by the Supreme Court in State of Maharashtra v. Mohd. Yakub, , the expression "attempt" may defy a precise and exact definition and an attempt to define "attempt" may be on occasions a frustrating exercise. But through a series of decisions spreading over the last three decades in Abhayananda (AIR 1961 SC 1968) : (1961 (2) Cri LJ 822), Malkiat Singh, , Sudhir Kumar, , Mohd. Yakub (supra) and others, the Supreme Court has finally settled that a person shall be guilty of an attempt to commit an offence if "he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing that offence". "The term 'any act' excludes the notion that the final act short of actual commission is alone punishable". The earlier notion that the act in order to constitute "attempt" must be the act which would have immediately led to the commission of the offence, if not interrupted, has been rejected by the Supreme Court as "entirely unacceptable". In that view, the question that becomes very much pertinent is whether or not a person who, having intended and made preparations to contract a bigamous marriage, goes through some ceremonies of marriage, would be punishable for attempt to commit bigamy, even though all the requisite ceremonies, like Vivaha-Homa or Saptapadi, are not affirmatively proved to have been performed and the offence of bigamy is thus not complete.
19. As already noted, it has been ruled by the Supreme Court in Kanwal Ram (supra) and in Priya Bala (supra), that "admission of marriage by an accused is not evidence of marriage for the purpose of proving an offence of bigamy". But even though incapable to sustain a conviction for the commission of bigamy, such admission may clearly indicate that the accused had the intention to marry and if, coupled with that, it is proved that such intention was sought to be translated by the accused into action by going through some ceremonies of marriage, would not the accused be guilty of an attempt to commit bigamy, even though the performance of all the essential ceremonies has not been affirmatively proved ? Assuming that it has not been proved that some of the essential ceremonies were performed, or that it has been proved that all such ceremonies were not performed, such omission may be due to inadvertence, ignorance of the parties or even of the officiating priest or due to haste and hurry in which such marriage is sometimes performed to keep it a secret as long as possible. In such a case, intention and preparation having been proved and also the performance of some of the ceremonies to celebrate the marriage, would not the parties thereto be punishable for attempt to commit bigamy, even though some of the essential ceremonies are not proved to have been performed or are proved not to have been performed?
20. In the case at hand both the Courts have found, and there is evidence in support of such finding, that the parties intended to marry, made all preparations therefor, and many of the marital rites like performance of Homa, chanting of Mantras, putting of vermilion, Sampradan, the bride going or being taken round the bride-groom seven times, were proved to have been performed. The second marriage may still be incomplete in the absence of specific proof of performance of Saptapadi. But would not the alleged husband be nevertheless be guilty of attempt to commit bigamy and accordingly liable to be convicted under Section 494 read with Section 511 of the Penal Code? It has not been, as it cannot be, disputed that, as provided in Section 222(3) of the Criminal P.C., when a person is charged with an offence, he may be convicted of an attempt to commit such offence, although he is not specifically charged with the same.
21. We have given the matter our anxious consideration, and even though we may regret it, we have come to the conclusion that a person governed by the special laws like the Hindu Marriage Act, 1955 or the Parsi Marriage & Divorce Act, 1936, cannot be convicted for attempt to commit bigamy under Section 494 read with Section 511 of the Penal Code and we proceed to state hereinbelow the reasons for our conclusion.
22. The general rule, as enshrined in the maxims "generalia specialibus non derogant" and "generalibus specialie derogant', is that a special law prevails over the general law covering the same subject. As defined in Section 41 of the Penal Code, and even otherwise, the Parsi Marriage & Divorce Act, 1936, or the Hindu Marriage Act, 1955 is a Special Law, being applicable to a particular community and, that too, on a particular subject. The Penal Code, 1860, described in the Preamble thereto as the "general Penal Code for India", has also taken particular care in Section 5 thereof to provide that "nothing in this Act shall affect the provisions of any special or local law".
23. The Parsi Marriage & Divorce Act in Section 5, and the Hindu Marriage Act in Section 17, have enacted Special Laws for the offence of bigamy by the Parsis and the Hindus and to that extent the relevant provisions of the general law relating to the offence of bigamy enacted in Sections 494 and 495 of Penal Code shall, on their own cease to apply to the offence of bigamy committed by the Parsis or the Hindus. It is true that Section 5 of the Parsi Marriage & Divorce Act, 1936, dealing with the offence of bigamy by the Parsis, has provided that the offender "shall be subject to the penalties provided in Sections 494 and 495 of the Penal Code". The provisions relating to the punishment under those provisions of the Penal Code have, therefore, been adopted or incorporated, by way of legislative reference, in Section 5 of the Act, but the offence nevertheless remains an offence under that Section 5 of the Parsi Marriage & Divorce Act and punishable under that Section only and though the provisions relating to punishment in Sections 494 and 495 have been incorporated by way of reference, those Sections of the Penal Code do not apply as such and ex proprio vigore. In law, therefore, an offence of bigamy committed by a Parsi is an offence punishable under that Special Act and not punishable under the Penal Code.
24. The Hindu Marriage Act also, which governs the parties in this case, has enacted and specially dealt with the offence of bigamy by the Hindus and, therefore, the provisions of the Penal Code, because of Section 5 thereof, or even otherwise, shall not affect or apply to an offence of bigamy committed by the Hindus. It is true that Section 17 of the Hindu Marriage Act also, like Section 5 of the Parsi Marriage & Divorce Act, has adopted by way of incorporation by reference the provisions of Sections 494 and 495 of the Penal Code. But there again, the offence is nevertheless a creature of Section 17 of the Hindu Marriage Act and punishable thereunder, though, as directed in that very Section, in accordance with the provisions of Sections 494 and 495 of the Penal Code.
25. The conclusion, to our mind, is, therefore, inescapable that the offence of bigamy by Parsi or a Hindu is an offence created by and under Section 5 of the Parsi Marriage & Divorce Act or Section 17 of the Hindu Marriage Act, as the case may be, and is also punishable only under either of those Sections and not under Sections 494 and 495 of the Penal Code, though the latter Sections have stood engrafted and incorporated in the former Sections as inseparable adjuncts. Section 511 of the Penal Code providing for punishment for attempt to commit an offence can apply, as its express terms manifest, only to an attempt to commit an offence "punishable by this Code", i.e. the Penal Code. As Section 511 of the Penal Code cannot apply to any offence created by and punishable under any Special Law, such Special Law usually provides specifically for the offence of attempt to commit such offence, whenever the concerned Legislature intends to punish such attempt, e.g., Section 78 of the Essential Commodities Act, 1955.
26. We, therefore, hold that though, in our view, the accused, alleged to be the husband to the second marriage, clearly attempted to commit bigamy, he can neither be convicted nor punished in the absence of an enabling penal provision in the Hindu Marriage Act to that effect.
27. We, accordingly, allow the revision, but we do so with some amount of reluctance because though we are satisfied that the accused committed or at least attempted to commit a grave social offence, the same is going beyond the reach of our law, notwithstanding its proverbial long arms, as it is not made punishable under any law for the time being in force. We, therefore, set aside the order of conviction and the sentence imposed by the trial Court and affirmed by the appellate Court and acquit the accused persons, who shall stand discharged from their bail-bonds. Records, with a copy of our judgment to go down to the trial Court at once.
Ajoy Nath Ray, J.
28. I agree.