Karnataka High Court
Revanasiddaswamy H.M. vs State Public Prosecutor And Anr. on 22 September, 1989
Equivalent citations: 1990CRILJ1001, 1990(3)KARLJ34
ORDER
1. The above Criminal petition is directed against the order dated 11-8-1988, passed by the Sessions Judge, Chikmagalur in Criminal Appeal No. 23/1985 confirming the order of conviction dated 19-10-1985 made in C.C. No. 905 of 1983, on the file of the J.M.F.C., Kadur.
2. A private complaint was filed by the father of Smt. Suman against accused No. 1 Revanasiddaswamy and his brother Veerabhadraswamy. The allegations are that A. 1 married his daughter Suman first and thereafter he married one Gayatridevi, a Lecturer in Kannada in the Junior College Tarikere. Complainant is a retired Principal of the Kannada Primary Training College, Hubli. Smt. Suman was working as the Tele-communication Office Assistant at Divisional Engineer, Telegraphs, Hubli. In the month of March, 1983, Sri V. V. Mathad, a close friend of the complainant approached the complainant stating that there is a proposal of marriage to his daughter Suman, in connection with which he had received a letter from Accused No. 2, the brother of accused No. 1. A. 1 was also working as a Technician in the telegraph office at Mysore. At the instance of V.V. Mathad and in pursuance of the letter by A. 2, dated 21-3-1983 and 2-4-1983, complainant's daughter Suman was shown to accused Nos. 1 and 2 in the month of June, 1983. During that period A. I gave a telegram demanding. Rs. 2,000/- from Mr. Mathad for the purpose, of purchasing clothes for the purpose of marriage. The amount asked for was sent and acknowledged by A. 1. Accused No. 1 demanded a gold ring of his choice and also Mangalasutra for the marriage. The demands were fulfilled by the complainant. On 3-7-1983 Suman's marriage with A. 1 was performed. The said marriage took place in the Auditorium of the JG College of Commerce, Hubli. According to the complainant, the marriage was performed in accordance with the custom and articles like gold ring etc., were presented to the accused No. 1. The complainant alleged that the marriage was solemnized in accordance with the Lingayat Jangam Custom. All religious rites were strictly followed. During the marriage photographs of the newly wedded couple during the various ceremonies were taken. After the said marriage accused Nos. 1 and 2 went back frozen that place on 3-7-1983 stating that they would take Suman to their house on an auspicious day. Thus the daughter of the complainant Suman became the legally wedded wife of A. 1. Later the complainant came to know that A. 1 married one Gayatridevi, daughter of Vishwaradhya on 8-7-1983. The said, Gayatridevi belonged to Birur Town. The said Gayatridevi was working as Lecturer in the Junior College at Tarikere at that time. She belongs to the Lingayat Jangam Community. The marriage of Gayatridevi with A. 1 was solemnized on 8-7-1983 in accordance with the custom of the Lingayat Community of Chickmagalur District. A. 1 thus after the solemnisation of the first marriage with Suman took Gayatridevi in second marriage that too after performing the ceremonies according to the customs prevailing in Lingayat Jangam Community Chikmagalur District and particularly at Barer During that marriage also photos of the marriage ceremonies were taken and for the purpose of this case the wedding card in respect of A. 1 and Gayatridevi are also produced and they are part of the records. Even after the second marriage of A. 1 with. Gayatridevi A. 1 wrote letters to his first wife Suman, complaint and also to V.V. Mathad informing about the, second marriage with Gayatridevi and requested them to excuse him for having committed the mistake. These letters also form part of the records. It is also mention in the Competent that he cheated Gayatridevi concealing the information regarding the first marriage with Suman. The said marriage took place with Gayatridevi on 8-7-1983, within the territorial jurisdiction of the Court at Kadur, where the complaint was filed. Process was issued by the learned Magistrate against both the accused. The Learned Magistrate after appreciating the evidence, both oral and documentary, and after hearing both the Counsel for the parties convicted A. 1 for the offense punishable under Sections 494 and 495, I.P.C. and sentenced him to undergo R.I. for six months on each count and acquitted accused No. 2 for the offense punishable under Section 420, I.P.C. As regards A. 2 the learned Magistrate convicted him for the offense punishable under Section 494 read with Section 109, I.P.C. and sentence him to pay a fine of Rs. 500/- in default to undergo S.I. for one month.
3. Being aggrieves by both the orders of conviction and sentence accused No. 1 filed Criminal Appeal No. 23 of 1985 in the Court of the Sessions Judge, Chikmagalur. The learned Sessions Judge, after hearing both the parties allowed the appeal in part and confirmed the order of conviction of the accused under Sections 495, I.P.C. and modified the the sentence to pay fine of Rs. 10,000/- on each count and undergo S.I. for one day till the rising of the Court and in default of payment of fine to undergo further R.I. for a period of three months on each count.
4. Being aggrieved by the said order of conviction and sentence passed by the Magistrate and confirmed by the learned Sessions Judge (with modification of sentence) Accused-1 filed the above Criminal Revision Petition, challenging the order of conviction and sentence.
5. Mr. Basavarya, learned counsel appearing for the petitioner vehemently submitted that the Courts below erred in law in not taking into consideration some material evidence placed on record, particularly he pointed out that both the marriages alleged in the case were said to have been performed in accordance with the custom of Lingayat Jangam Community. In this case, the learned counsel Mr. Basavarya submitted that he does not seriously challenge that the marriages were celebrated, but he challenges that they are not performed in accordance with Lingayat Jangam Community custom. Therefore even though the marriages are there, particularly the first marriage, it cannot be said to be a valid marriage. That the learned counsel for the petitioner submits that saptapadi must be performed in the Lingayat Jangam Community, without which the marriage is not complete. That the omission of Saptapadi, marriage becomes incomplete. Therefore, it is not valid marriage in the eye of law. Evidence also discloses that Saptapadi is the last item for completing the marriage. Certain functions are to be done in accordance with the Lingayat Jangam Community only after completing all other items, the ceremony of saptapadi takes place. In other words tying of mangalasutra (tali) to the neck of the bride and afterwards both the spouses were allowed to take seven steps before the sacred, fire, preceded by tying the seragu of the bride with the shelle of the bridegroom, which is called as 'brahmagantu.' Regarding this there are material contradictions in the evidence, of witnesses, particularly PW-1, PW-5 and PW-9. I think this is a fit case wherein I have to re-appreciate the evidence on material points particularly regarding the customs.
6. Learned counsel Mr. Basavarya appearing for the petitioner, submitted, who should set the law in motion to overcome the bar under Section 198, Cr.P.C. He invited my attention to section 495, I.P.C. and the commentary in Law of Crimes by Ratanlal and Dhirajlal, 23rd Edition page 1926 para 33, which reads as under :
"Complainant by person aggrieved necessary :-
Under S. 198 of the Code of Criminal Procedure no Court shall take cognizance of an offence falling under this Section except upon a complaint made by some person aggrieved by such offence. This section is intended to prevent Magistrates from inquiring into cases coming under S. 493 to 496, unless the husband or some person aggrieved lodges a complaint. It is not necessary, however, that a complaint should state precisely the section of the code under which the accused shall be charged. It is sufficient if the complaint lays before the Magistrate matters which, if proved, would be sufficient to warrant a commitment under this Section.
Here Gayatridevi is the second wife according to the allegation. Therefore, it is Gayatridevi who is aggrieved by the act of the accused No. 1. Wherefore, Gayatridevi ought to have filed complaint or her father or any of her relatives. Therefore, the learned counsel submits that the action or inquiry held is on the complaint filed by an incompetent person.
7. As against this the learned State Public prosecutor, submits that both the Courts have taken into consideration all the aspects of the matter and also the material placed before them. Therefore, he submits that he adopts the reason assigned by both the Courts below and submits that the orders of conviction of both the Courts are sustainable in law. The learned State Public Prosecutor also submits that there are concurrent findings of facts and law recorded by the Courts below. Therefore, this Court should be very slow in interfering with the orders of conviction passed by both the Courts below by appreciating the evidence.
8. Mr. Basavarya, the learned counsel submitted as aforesaid. I think it is a fit case wherein I should reappreciate the evidence for just and equitable decision.
9. To find out whether the marriage is complete and it could be said to be a valid marriage, we have to consider the evidence on record. PW-1's evidence is of no assistance to consider this point. However, PW-1 Gayatridevi whom A. 1 married and took as second wife was examined on 16-2-1984, but the complaint by the father of Suman was filed on 2-11-1983. According to Mr. Basavarya the learned counsel appearing for the petitioner, submits that there is sufficient delay in filing the complaint. But it is really strange to note, this Gayatridevi, who is hit hard in the circumstances, did not raise a little finger against the accused. She ought to have taken the action against petitioner as she has to suffer for not showing that the petitioner A. 1 was already married to Suman. It is relevant to appreciate the evidence of PW-8.
10. Suman PW-8 stated that on 3-7-1983 in the morning tumeric paste was applied, surge was performed and also they were made to bow before Gods. Thereafter the bridegroom was tied with Basing. Thereafter according to the custom of Jangam all acts were done. A black woollen carpet was spread, then she was made to sit on it and she was gifted to the bridegroom (kanyadaan). Thereafter a Mangalasutra was giver of the bridegroom after touching 'muthayadaru' (women with living spouse). The bridegroom tied Mangalasutra to her neck. At that time rice was showered on their heads. Musicians were playing their instruments. This happened in the house of Suman at about 10.30 in the morning. Thereafter they were taken to JG College of Commerce. There Shastriji came. The bridegroom and bride exchanged their garlands and Shastriji chanted mantras. PW-3 Kotrayya performed their marriage by Chanting mantras. Photos were taken. Suman stated, that her photos were taken along with the bridegroom A. 1 and also along with Shastriji.
11. PW-3 Kotrayya, who performed the marriage, states that Gouri Pooja was celebrated and bridegroom was made to worship 'panchagurugalu'. Thereafter the pooja was performed for Ganapati. Kanyadaan was done by Srikantaiah a family member. PW-3 said that he had chanted Mantras. He also highly praised Srikantaiah DW-1, and stated that he is a fairly senior man and he is conversant with the performing of marriages. He says that Srikantaiah is well versed with the customs and procedure of marriages according to Lingayat Jangam Community. There is no consistent evidence regarding saptapadi as to how it was done and when it was done. And it is stated by PW-3 that no Saptapadi was done because it is not in vogue in northern part of Karnataka.
12. DW-1 Srikantaiah Shastri, according to the prosecution also is considered to be an authority as far as performance of marriages are concerned according to Lingayat Jangam Community. The said witness Srikantaiah Shastri DW-1 stated on oath before the Court "If the marriage is to be valid marriage the following ceremonies are necessary. 1) Kashiyatra, 2) Madhuparka, 3) Basingadharana, 4) Mangalya Dharane, 5) Sabhapooja, 6) Panigrahana, 7) Saptapadhi, 8) Nakabaliutsava (Nagoli)." The witness has stated that the marriage cannot become valid in the eye of law, if the above ceremonies are not done according to the seriatum. Therefore, it is clear from the evidence that Saptapadi was not done in the case of the first marriage and in the second marriage with Gayatridevi there is material contradiction in the evidence of Gayatridevi and her own mother PW-5 Premaleela and also the Shastri, who performed the marriage Basavalinga Shastry PW-9. The mother of Gayatridevi Premaleela PW-5 has stated that she had not seen the Saptapadi, but in the same breath she stated that in her marriage Saptapadi was done by the same Basalinga Shastri PW-9. Therefore, it is hard to believe that the marriages were done in accordance with the coaster of Lingayat Jangam Community. As far as the second marriage is concerned the Mother of PW-1 Gayatridevi, stated that Saptapadi was done at the time of her marriage, but the evidence of the other witnesses discloses that no Saptapadi was done in the case of Gayatridevi's marriage with accused No. 1. However, I feel that it is not necessary to say anything about the second marriage and express any opinion about it.
13. The power of the Magistrate to impose fine is restricted only upto Rupees 5,000/-. But the learned Sessions Judge has sentenced the accused to pay a fine of Rs. 10,000/- on each count. The learned Counsel Mr. Basavarya submitted that the Appellate Court erred in imposing the fine of Rs. 10,000/-, as the Appellate Court cannot pass sentence beyond the powers of the original Court. Here in this case the Magistrate has got power only to impose a fine of Rs. 5,000/-. Therefore, the learned Sessions Judge cannot sentence beyond the original Court's power. I think that there is some force in the argument advanced by Mr. Basavarya the learned Counsel for the petitioner.
14. To take cognizance under Section 198 Cr.P.C. there should be a complaint by some aggrieved person. Section 198 Cr.P.C. reads as under :-
"198. Prosecution for offenses against marriage :-
(1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the Offence."
But according to Section 495 it is Gayatridevi, who is aggrieved by the Act of A. 1, she is competent person to file the complaint or her parents, brothers, sisters or near relatives. But the complaint was filed by the father of the first wife Suman. Therefore, I think that there is some force in the contention advanced by Mr. Basavarya learned Counsel for the petitioner.
15. In support of this contention that it is an incomplete marriage, the learned Counsel Mr. Basavarya, submitted that he relies upon the decision rendered by the Supreme Court in Lingari Obalamma's case and also the decision reported in AIR 1971 SC 1153 : (1971 Cri LJ 939). Specifically the learned Counsel Mr. Basavarya submitted that in the complaint it was not specifically alleged that in Hubli Saptapadi was not in vogue. Therefore, the prosecution failed to establish that the marriage is complete without it. If any practice or custom is to be considered having force of law, it would be proved by various instances to the effect that the same procedure is being followed in a number of instances and it has achieved the force of law.
16. For the facts and circumstances stated and discussed above, the orders passed by both the Courts are not sustainable in law.
In the result, the revision petition is allowed. The orders of conviction and sentence passed by both the Courts below are set aside. The accused is acquitted. The bail bond stands canceled. If fine is paid it shall be refunded to the petitioner.
17. Revision allowed.