Andhra HC (Pre-Telangana)
Yelamanchali Nageswari vs Yelamanchali Venkata Prasada Rao And ... on 19 June, 1998
Equivalent citations: 1998(4)ALD530, 1998(2)ALD(CRI)49, 1998(2)ALT(CRI)177, 1998CRILJ4128
Author: T. Ranga Rao
Bench: T. Ranga Rao
JUDGMENT
1. This appeal is directed against the judgment dated 28-7-94 in Crl. Appeal No.3/93 on the file of the Additional Sessions Judge, Vizianagaram, reversing the conviction and sentence awarded against the appellant for the offence under Section 494 IPC and acquitting him.
2. The facts in giving rise to the filing of this appeal lies in narrow compass and are as follows:
The respondent Yelamanchali Venkata Prasada Rao married the complainant PW1 Yelamanchali Nageswari on 12-4-1978 as per Hindu rites and caste customs at Simhachalam Temple and after marriage she joined her husband and lived at Sningavarapukota and they were blessed with a son by name Saradhi on 18-7-1979. It is the case of petitioner that subsequently she was ill-treated by the respondent and he drove her out of the house and married one Sarada (A2) on 10-1-1984 in Venugopala Swamy Temple in S. Kota inspite of the protests made by her mother, PW2 during the subsistence of his marriage with her. She filed complaint before the Judicial Magistrate of First Class, S. Kota. against her husband and his parents and other family members and also against mother of A2 under Section 494 read with 114 IPC.
3. On behalf of prosecution, the complainant herself was examined as PW1 and her mother was examined as PW2 and Exs.P1 to P4 were marked. On behalf of the accused, one witness was examined as DW1 and divorce deed said to have been executed by and between PW1 and A1 was marked as EX.11.
4. The learned Magistrate found the respondent-husband guilty for the offence under Section 494 IPC, convicted and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of Rs.5000/- in default simple imprisonment for six months and also directed to pay Rs.2,500/- from out of the fine amount to the complainant after expiry of appeal time. He found the other accused not guilty and acquitted them.
5. Aggrieved by the said conviction and sentence, the respondent filed Crl. Appeal No.3/93 before the Sessions Judge, Vizianagaram, and the learned Additional Sessions Judge allowed the appeal holding that the complainant failed to establish that the marriage in between the respondent-husband and A2 Sarada was celebrated in accordance with Hindu rites and caste customs and acquitted him.
6. Now the complainant filed this criminal appeal assailing the said finding of the learned Sessions Judge.
7. The point that arises for consideration is whether the finding of the learned Sessions Judge acquitting the respondent for the offence under Section 494 IPC is unsustainable in law ?
8. The learned Counsel for the appellant submits that the respondent Prasada Rao and A2 filed a petition for divorce by mutual consent and copy of it is marked as Ex.P2 and it is specifically admitted in the said petition that the respondent Prasada Rao and Sarada (A2) married as per Hindu rites caste customs and traditions on 12-1-1984 and in view of the admission of the respondent and the second wife Sarada, it can safely be inferred that there was a valid marriage in between the respondent and A2 Sarada, during the subsistence of the marriage in between complainant and the respondent and the admission made by a party is substantial evidence in view of Sections 17 and 21 of the Evidence Act and no further proof is required and can be acted upon and hence, the finding of the learned Sessions Judge is unsustainable in law and he relied on Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and others, .
9. But the learned Counsel for the respondent submits that admittedly the complainant has not examined any witnesses who are said to have witnessed the marriage of the respondent Prasada Rao with Sarada (A2) and also failed to produce any evidence to show that the requisite ceremonies to constitute a valid marriage in their community were performed at the time of alleged marriage in between the respondent and Sarada and the recitals in Ex.P2 with regard to the marriage of the respondent with A2 are of no avail and the Apex Court has consistently taken the view that in a bigamy case, the second marriage, as a fact, that is to say essential ceremonies constituting a valid marriage must be proved and he relied on Kanwal Ram and others v. the Himachal Pradesh Administration, ; Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1152; Bhaurao Shanker Lokhande and others v. the Slate ofMaharashtra and another, and P. Satyanaroyana and another v. P. Mallaiah and others, 1996 (2) ALD (Crl.) 707 (SC).
10. PW1 admitted that she was in Malasiya at the time of alleged marriage of the respondent with Sarada (A2). PW2 is mother of PW1. According to her, A1 married another lady at Venugopalaswamy Temple and she attended the marriage and she was pushed away. PW2 failed to state that she witnessed the marriage of A2 with the respondent. Thus practically there is no evidence let in on behalf of the complainant to show that A1 married A2 in accordance with the Hindu religious rites and caste custom applicable to their community.
11. The learned Counsel for the appellant did not dispute the validity of the marriage in between PW1 and the appellant. PW1 while giving evidence stated the essential ceremonies observed at the time of her marriage as follows:- "That herself and the appellant-A1 wore new clothes and a 'Pancha' i.e. dhoti was put in between them, 'Jeelakarra' and jaggery was placed on her head by the appellant-A1, Pancha was removed and 'Vinayaka puja was performed, mangala sutliram was shown to the ladies and the appellant-A1 tied tail around her neck. Brahmamudi was tied. After that, they walked thrice around the 'agni-homam', thalambaralu were poured, purohit showed them 'Arundhati' star. After the marriage, they were brought to Simhachalam Temple and puja was performed.."
12. Though it is urged in the lower Court that there was customary divorce in between PW1 and the respondent but it was not pressed before this Court.
13, The only question that arises for consideration is whether the admission made by the respondent that he married Sarada, in Ex.P2 petition filed for divorce by mutual consent, can be accepted and construed that there was a valid marriage in between the respondent and Sarada ?
14. It is true that it is mentioned in Ex.P2, petition filed for mutual consent, by the respondent Prasada Rao and Sarada :
15. There is discrepancy with regard to the date mentioned in words that marriage took place on 1-1-1984, but the date is mentioned as 12-1-1984 in numericals. Though it is mentioned that the marriage in between Prasada Rao and Sarada (Respondent and A2) was performed in accordance with the Hindu traditions and caste customs, but it is not mentioned specifically the details of the ceremonies that are performed at the time of their marriage and in the absence of proof of requisite ceremonies performed at the time of marriage the omnibus allegation that the marriage was performed by Hindu rites and caste customs, cannot be accepted and the Apex Court held the same in Priya Bala Ghosh's case.
16. The facts leading to Kanwal Ram's case are that Sadh Ram was married to Kubja sometime in 1940-41 and subsequently the marriage in between Kanwal Ram and Kubja was performed in September, 1955 after the Hindu Marriage Act, 1955 came into force prohibiting the marriage of a Hindu during the life time of his/her spouse. Kubja the bride and Kanwal Ram the bride-groom and two others were prosecuted for the offence under Section 494 IPC read with 109 IPC and it is found that the evidence let in on behalf of prosecution was not enough to show the marriage in between them said to have been performed; but the prosecution relied on the admission made by Kanwal Ram that he had sexual intercourse with Kubja and also Kanwal Ram filed a written statement in answer to the application for restitution of conjugal rights filed by Sadh Ram against Kubja and others in which it was stated that Kubja married Kanwal Ram after her marriage with Sadh Ram had been dissolved- Thus the statement shows the admission of marriage in between Kanwal Ram and Kubja and Their Lordship of the Supreme Court held that in law such an admission is not evidence of the fact of second marriage having taken place. In a bigamy case, the second marriage, as a fact, that is to say the essential ceremonies constituting valid marriage must be proved and allowed the appeal and set aside the conviction and sentence awarded against the appellant.
17. The Supreme Court again reiterated the same principle in Priya Bala Ghosh's case. The appellant Smt. Priya Bala Ghosh filed criminal complaint against her husband Suresh Chandra Ghosh before the Judicial Magistrate of First Class, A1ipurduar stating that her marriage was performed with the respondent in the year 1948 and subsequently he ill-treated her and married one Sandhya Rani on May 31, 1962 and thus committed an offence under Section 494 IPC. The trial Magistrate found that the respondent has admitted second marriage in a petition filed seeking maintenance under Section 488 Cr.PC and hence, found him guilty and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-. On appeal, the learned Sessions Judge, Jatpiguri held that the evidence does not establish mat the essential ceremonies to constitute a valid marriage have been performed either in the case of marriage claimed to have been taken place between the appellant and the respondent or in respect of the alleged second marriage with Sandhya Rani and allowed the appeal and set aside the conviction and sentence and acquitted the accused.
18. On appeal, the Calcutta High Court differed with the finding of the learned Sessions Judge regarding invalidity of the marriage between the appellant and the respondent and held that the evidence establishes valid marriage in between them. But regarding second marriage, the High Court agreed with the finding of the learned Sessions Judge that the essential ceremonies to constitute a valid marriage have not been proved and confirmed the order of acquittal. The matter was carried to the Supreme Court. PW6 who officiated the marriage was examined to show that the requisite ceremonies were performed at the time of marriage of the respondent with Sandhya Rani and he has given evidence to the effect that the marriage was solmoniscd according to Hindu rites. He has not said anything more. It was contended before the Supreme Court that there is evidence to show that the marriage, as a fact, has taken place and the presumption is that it has taken place according to law. But the Supreme Court rejected the said contention reiterating the principle laid down in the decision Bhaurao Shanker Lokhande's case and Kanwal Ram's case, referred to above, that in a prosecution for bigamy, the second marriage hasto be proved as a fact i. e. all the necessary requisite ceremonies have been performed constituting a valid marriage and mere admission of marriage by the accused is no evidence of marriage.
19. The Supreme Court again reiterated the same principle in P. Satyanarayana 's case, referred to above and Their Lordships observed as under:
"..The High Court was in error in upsetting the well considered order of the Trial Magistrate requiring due ceremonies of the alleged second marriage being proved so as to satisfy the tests laid down by this Court in the aforereferred cases. The plea of guilt aforereferred to could at best be understood to mean that the first appellant had taken a wife, but that admission did not necessarily mean that he had taken the second wife after solemnising a Hindu marriage with her after performing due ceremonies for the marriage. Such plea, which he need not have even entered upon, and which was ignorable by the Court, did not absolve the prosecution to otherwise prove its case, that the marriage in question was performed in a regular way so as to visit him with penal consequences. The Court is therefore of the view that a futile exercise has been enjoined upon the Magistrate by the High Court in ordering a re-trial when the evidence, as it was, had been discussed and rejected thread-bare,,''
20. Thus it is clear from the above decisions, that the Supreme Court has been consistently taking the view that in a bigamy case, the second marriage, as a fact, that is to say, essential ceremonies constituting a valid marriage, must be proved, admission of marriage by the accused is no evidence for the purpose of proving the offence in a bigamy case.
21. It is also relevant to mention that specific question was not put to the accused while examining him under Section 313 Cr.PC with regard to the recitals in Ex.P2 relating to admission of marriage in between him and Sarada (A2), but the learned Magistrate has put the entire chief examination in one question and the accused denied the same. The learned Magistrate ought to have put a specific and separate question with regard to the recitals in Ex.P2. In the absence of any such specific question, the conviction basing on, such admission is also unsustainable.
22. The contention of the learned Counsel for the appellant relying on Nagindas Ramdas's case is that the admission made by the party is substantial evidence and can be accepted and acted upon it. The said decision was rendered by the Bombay High Court under Bombay Rents, Hotel & Lodging Houses Rates Control Act, 1947 and it is of a civil nature. A similar contention was also raised before the Supreme Court in Smt. Priya Bala Ghosh 's case relying on Bharat Singh and others v. Mst. Bhagirathi, and the subject matter of the said decision is also of civil nature and after going through the said decision, Their Lordships held that the said decision does not, in any way, support the contention of the appellant in a prosecution for the offence under Section 494 IPC.
23. Therefore, in the light of foregoing discussion, it emerges that in an offence of bigamy, the prosecution has to prove from the material on record, that the requisite ceremonies have been performed to constitute a valid marriage in between them to sustain conviction under Section 494 IPC and mere admission of accused that he married another woman is of no avail to the prosecution.
24. Admittedly, in this case, absolutely there is no material on record to show that necessary and requisite ceremonies were performed at the time of the marriage between the respondent and Sarada (A2) and hence, the learned Sessions Judge, after discussing the matter in detail, came to a right conclusion and I do not find any error to interfere with the said finding.
25. In the result, the appeal fails and is dismissed.