Kerala High Court
P.P. Shylaja vs Premajan And Anr. on 25 February, 2005
Equivalent citations: II(2005)DMC520
Author: J.M. James
Bench: J.M. James
JUDGMENT J.M. James, J.
1. The first respondent, Premajan, is accused of having married for the second time, during the life time of his first wife, the appellant herein, P.P. Shylaja and, therefore, at the instance of the latter, a complaint has been preferred before the Judicial First Class Magistrate Court, Aluva, as C.C. No. 99/89, under Section 494, I.P.C. Eight witnesses and two documents, Exts. P1 and P2 series were marked. The accused entered the box and examined himself as D.W. 1. Ext. D1 was marked. The learned Trial Magistrate found the accused guilty, and, therefore, convicted and sentenced him to undergo simple imprisonment for one year. It was challenged before the 5th Additional Sessions Court, Ernakulam, Crl. A. No: 109/93. The learned Sessions Judge, as per the impugned judgment, found the evidence for the second valid marriage lacking, and, therefore, set aside the convection and sentence passed by the Trial Court, and acquitted the accused. Hence, the complainant P.P. Shylaja, came up in appeal before this Court challenging the findings of the learned Sessions Judge.
2. I have heard the learned Counsel appearing for the appellant, Mr. P.S. Krishna Pillai. The main contention of the Counsel is that P.Ws. 6 and 7, who were representatives of the local Karayogam, had deposed in detail, about the ceremonies held in the 2nd marriage, which would prove that a valid marriage has been solemnised between Ashadevi and Premajan, and, therefore, the ingredients required under Section 494, I.P.C. are established, and hence prayed to set aside the findings of the Sessions Court.
3. Both the Courts below found the marriage of P.P. Shylaja with Premajan valid. Therefore, the moot point to be analysed is whether there was a valid second marriage during the life time of Shylaja. The evidence of P.Ws. 6 and 7 reveal that there was some sort of function in the pooja room of Ashadevi in her house. Though, P.W. 6 had deposed that there was exchange of garlands, tying of Thali, he did not speak of the other ceremonies required to complete the marriage, except concluding his deposition that all the functions required to complete a valid marriage according to the custom of the community had been ceremonised. P.W. 7, on the other hand, deposed that both Ashadevi and Premajan had gone around Nirapara and Nilavilakku. But the evidence of this witness is not corroborated by P.W. 6, in other details.
4. P.W. 3, is the person who was cited by the complainant-appellant to speak about the custom of the community. He deposed that to complete the ceremony as per the custom of Araya community, the marriage must be conducted by a priest. There shall be a Kanyadhanam, exchange of garlands, tying of Thali and also going around the Mandapam thrice. All these ceremonies had been done during the marriage of P.P. Shylaja and Premajan. But none of the witnesses including P.Ws. 6 and 7 had deposed that there had been any ceremony like Kanyadhanam, required as per the custom of Araya community. I have gone through the evidence of the entire witnesses. There is no material available to that effect. Further, it is deposed by the witnesses that the function took place in the pooja room of Ashadevi. Except, P.W. 7, no one had deposed that arrangements required for the conducting of the marriage according to the custom of Araya community was made in the pooja room of Ashadevi. There was no priest to conduct the marriage. One barber Kuttappan was acting as priest. He was not examined. Hence, this condition is also not met as required by customs of the parties. It is true that P.Ws. 1, 6 and 7 are the representatives of the respective localities. P.W. 1 had deposed that there was no notice of marriage. However, they were present on oral information. P.W. 1 also deposed that there had been heated exchange of words during the function, and, therefore, the marriage was not registered in the register of Karayogam. P.W. 1 further emphatically deposed that the marriage of Ashadevi with Premajan had not been registered in the Karayogam Register, and not recognised by the Araya community. The evidence thus available clearly show that not only the Araya community has not recognised the relationship between Ashadevi and Premajan, but it was also not registered as is required by the custom of the community. Therefore, it cannot be said that there was a valid marriage as per the law. Exchange of garlands and tying of Thali, otherwise than as required under the custom of the community cannot be accepted as, a marriage under the community.
5. In Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153, the Apex Court considered the question while considering the offence of bigamy, when Homa and Satpadi were the essential rites to be performed to constitute a valid marriage and when there is no specific evidence regarding their performance, whether the marriage conducted in such situation, would be valid or not. In Bhaurao Shankar Lokhande v. State of Maharashtra, , a question has arisen 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 by the parties. Interpreting the word "solemnize" in Section 17 of the Act, Punishment of bigamy, in the Hindu Marriage Act, 1955, the Apex Court held as follows:
"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 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 them ceremonies prescribed by law or approved by any established custom."
6. In Kanwal Ram v. The Himachal Pradesh Admn., , the Apex Court reiterated the above principles 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.
7. In Kanwal Ram's case, cited above, in a maintenance proceedings initiated by his first wife, the accused had admitted his second marriage, in the objection filed to the maintenance petition. The Trial Court has accepted this admission of second marriage of the accused, and entered into a conviction. But the Apex Court did not accept that position as well as the admission contained in the objection petition, which was marked as Ex. 4 and held that the findings of the Trial Court was clearly erroneous. Further, in an earlier application filed by the wife under Section 494, I.P.C. against the accused, the latter had admitted that he had contracted a second marriage because of the misconduct of his first wife. This admission was marked as Ex. 2. The High Court did not accept Ex. 2 on the ground that the statement contained in Ex. 2 will not be a proof of the fact that all the essential ceremonies necessary for the marriage has been performed. The Apex Court upheld this view of the High Court.
8. In the case at hand, as discussed earlier, there is no clear evidence that the entire ceremonies required and prevalent as spoken to by P.W. 3 in respect of the marriage of P.P. Shylaja and Premajan, at the first time, and there being no clear proof of such ceremonies as required by law and custom of Araya community, I find no reason to take a different view than the one taken by the learned Sessions Judge, after appreciating the evidence available on record.
9. The learned Counsel for the appellant has brought to my notice a decision of the Apex Court reported in Laxmi Devi v. Satya Narayana and Ors., , and submitted that even if the second marriage is not legally proved, as Ashadevi is living with Premajan, who is working in the Indian Navy, as husband and wife, a compensation may be given to the complainant, as they have got two children, so that her life cannot be a burden to her parents and relatives. At paragraph 8 of Laxmi Devi's case cited above, the Apex Court, exercising the powers under Article 142 of the Constitution of India, awarded a compensation of Rs. 25,000/-, so that there could be some solace to her life. In the case at hand, under Section 125, Cr.P.C., the complainant is receiving maintenance from Premajan. Therefore, I am unable to apply the principle contained in Laxmi Devi's case cited above.
In view of the above facts, this appeal fails, and is hence dismissed.