Madras High Court
P.Aruchamy vs Selvakumari on 25 October, 2019
Author: P.N.Prakash
Bench: P.N.Prakash
Crl.R.C.No.937 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 22.10.2019
PRONOUNCED ON : 25.10.2019
CORAM:
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
Crl.R.C.No.937 of 2013
P.Aruchamy .. Petitioner/1st Accused
Vs.
1. Selvakumari .. Respondent/de facto
complainant
2. State represented by
The Public Prosecutor,
Coimbatore. .. Respondent/Complainant
Criminal Revision filed under Section 397 r/w 401 Cr.P.C., to set
aside the judgment and order dated 10.02.2012 passed in C.C.No.303
of 2005 on the file of the Judicial Magistrate Court No.VII, Coimbatore,
confirmed by the judgment and order dated 15.11.2012 passed in
C.A.No.66 of 2012 on the file of the IV Additional District and Sessions
Court, Coimbatore.
For Petitioner : Mr.N.Elumalai
For R2 : Mrs.P.Kritika Kamal
Government Advocate
(Crl.Side)
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http://www.judis.nic.in
Crl.R.C.No.937 of 2013
ORDER
This criminal revision has been filed seeking to set aside the judgment and order dated 10.02.2012 passed in C.C.No.303 of 2005 on the file of the Judicial Magistrate Court No.VII, Coimbatore, confirmed by the judgment and order dated 15.11.2012 passed in C.A.No.66 of 2012 on the file of the IV Additional District and Sessions Court, Coimbatore.
2. For the sake of convenience, the parties will be referred to by their name.
3. The facts in brief giving rise to the filing of this revision are as under:
3.1 It is the case of Selvakumari that she got married to Aruchamy (A1) on 31.08.1995 in the presence of elders and family members at Arulmigu Chellandi Amman Thirukovil Marriage Hall, in accordance with the Hindu ceremonies and delivered a female child by name Parameshwari on 25.01.1998. After delivery, she was subjected to cruelty by Aruchamy (A1) and his family members and was driven to her native village. Thereafter, she learnt that Aruchamy (A1) got 2/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013 married to Amudhavalli @ Valliammal (A2) on 31.10.2003 between 7.00 a.m. and 8.00 a.m., at his residence in the presence of his family and friends and thereby, had committed an offence of bigamy punishable under Section 494 IPC.
3.2 With the aforesaid allegation, Selvakumari lodged a private complaint before the Judicial Magistrate Court No.VII, Coimbatore, against Aruchamy (A1), Amudhavalli (A2), Subramaniam (A3) and Pechiammal (A4), for the offence under Section 494 IPC.
3.3 Before the trial Court, Selvarani examined herself as (PW1), Subarroyan as PW2, Sheela as PW3, Palanisamy as PW4 and Swaminathan as PW5 and marked fifteen exhibits.
3.4 When the accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them, they denied the same. On the behalf of the accused, no witness was examined nor any document marked.
3.5 After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 10.02.2012, 3/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013 acquitted Amudhavalli (A2), Subramaniam (A3) and Pechiammal (A4), but, convicted Aruchami (A1) of the offence under Section 494 IPC and sentenced him to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to undergo one month simple imprisonment.
3.6 Challenging the above conviction and sentences, Aruchami (A1) filed an appeal in C.A.No.66 of 2012 before the IV Additional District and Sessions Court, Coimbatore, which was dismissed on 15.11.2012.
3.7 Challenging the concurrent findings of fact arrived by the Courts below, Aruchami (A1) has preferred the present revision under Section 397 r/w 401 Cr.P.C.
4. Heard Mr.N.Elumalai, learned counsel for Aruchami (A1). Notice has been served on Selvakumari and her name has been printed in the cause list, but, she has not entered appearance.
5. Mr.N.Elumalai, learned counsel for Aruchami (A1) submitted that Selvakumari had failed to prove that 'Saptapadi' was performed in 4/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013 the alleged marriage between Aruchami (A1) and Amudhavalli (A2) and therefore, the evidence lacks the ingredients that is required to sustain the conviction under Section 494 IPC. In support of this contention, he placed strong reliance on the judgment of the Supreme Court in Santi Deb Berma Vs. Smt.Kanchan Prava Devi1, the relevant portion of which reads thus:
“7. The High Court in the instant case has drawn an inference that all the ceremonies essential for a valid marriage had been performed on the strength of the three letters and the oral evidence as aforementioned. We, after going through the judgment of the High Court very carefully are of the opinion that the High Court is not at all justified in drawing such an inference in the absence of any reliable and acceptable – evidence, in regard to the performance of Saptapadi. The result will be that the alleged marriage between the appellant and Namita Ghosh, celebrated in defiance of the law applicable to the parties is held to be a marriage not valid in law. Hence the judgment of the High Court is not sustainable and consequently we allow the appeal by setting aside the conviction and sentence awarded by the High Court and acquit the appellant.” 1 AIR 1991 SC 816 5/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013
6. Before adverting to the submission made by the learned counsel for Aruchami (A1), it may be necessary to state here that, while exercising revisional powers under Section 397 r/w 401 Cr.P.C., this Court is required to find out, if there is any illegality or impropriety in the findings of the trial Court and the appellate Court warranting interference and it is not open to this Court to exercise the revisional power as a second appellate forum. In this context, it is profitable to allude to the following paragraphs in the judgment of the Supreme Court in State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, etc.2:
“22.The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”.
2 (2004)7 SCC 659 6/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013 It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers.
Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
(emphasis supplied)
23.On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn.[(1975) 4 SCC 649 : 1975 SCC (Cri) 663 : AIR 1975 SC 1960] in which it is observed thus:(SCC p. 651, para 5) “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct.
But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse.” 7/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013
7. The aforesaid legal principle has also been reiterated very recently by the Supreme Court in Bir Singh Vs. Mukesh Kumar3, wherein, the following question of law was formulated:
“(i) whether a Revisional Court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in the absence of any jurisdictional error or error of law“
8. The answer of the Supreme Court to the aforesaid question of law is as under :
“19.It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.
20.As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [(2008) 14 SCC 457], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative."
3 [(2019) 4 SCC 197] 8/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013
9. In Santi Deb Berma (supra), the accused were convicted by the trial Court, which was reversed by the Court of Session and the High Court reversed the acquittal and convicted the accused, whereas, in this case, the trial Court and the Court of Session have convicted the accused after holding that Selvakumari has proved beyond a peradventure that Aruchamy (A1) solemnised the marriage with Amudhavalli (A2) on 31.10.2003.
10. Selvakumari examined herself as PW1 and stated about her marriage with Aruchamy (A1) on 31.08.1995 and about the child that was born to her through him (A1). She has also marked the petition in H.M.O.P.No.325 of 2003 (Ex-P1) that was filed by her (PW1) before the Family Court, for restitution of conjugal rights, in which, Aruchami (A1) filed his counter (Ex-P2), wherein, he has admitted the marriage unequivocally. Therefore, it cannot be stated that the first marriage was not proved.
11. Selvakumari (PW1) examined Sheela (PW3), Manager of Shakthi Polyclinic, to prove the birth of the child on 29.07.2004 to Amudhavalli (A2) through Aruchami (A1). 9/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013
12. Selvakumari (PW1) also examined Palanisamy (PW4), Tahsildar and marked the voters' lists (Exs-P3 and P4) to show that Amudhavalli (A2) was the wife of Aruchami (A1).
13. Selvakumari (PW1) also examined Swaminathan (PW5), Sub-Inspector of Police, through whom she (PW1) marked the complaint (Ex-P12) lodged by Amudhavalli (A2) against her husband Aruchami (A1) alleging cruelty.
14. Thus, these evidences on record clearly show that Aruchami (A1) and Amudhavalli (A2) were living as man and wife and they begot a child on 29.07.2004.
15. Now, the question is whether Selvakumari has proved the ceremonies for solemnisation of the marriage between Aruchami (A1) and Amudhavalli(A2) on 31.10.2003. To prove this fact, Selvakumari examined Subramanian (PW2), family friend of Aruchami (A1), who, in his evidence, has clearly stated that Aruchami (A1) came to his house for inviting him for his marriage with Amudhavalli (A2) on 31.10.2003; he went to Aruchami's (A's) house and the marriage was solemnised between 7.00 a.m. and 8.00 a.m. by a Brahmin priest in accordance 10/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013 with their caste ceremonies. He (PW2) has also explained the caste ceremonies by saying that the Brahmin priest first consecrated a Vinayaka figure and handed over the garland, which, Aruchami (A1) and Amudhavalli (A2) exchanged and thereafter, Aruchami (A1) tied 'thaali' by facing east around the neck of Amudhavalli (A2) and put three knots; the 'thaali' was handed over on a betel leaf by Aruchami's (A1's) father. He has further stated that he also belongs to the same caste and knows the marriage ceremonies.
16. The defence was not able to make any dent in the testimony of Subramanian (PW2) in the cross-examination. He (PW2) has further stated that Aruchami (A1) told him that he (A1) has divorced Selvakumari and is thereafter marrying Amudhavalli (A2) and that is why, he (PW2) went for the marriage; only later, he learnt from Selvakumari that Aruchami (A1) had not divorced her.
17. The contention of Mr.N.Elumalai, learned counsel for Aruchami (A1) that 'Saptapadi' is an essential ceremony for the solemnisation of Hindu marriage cannot be countenanced. Section 7 of the Hindu Marriage Act, 1955 reads as under: 11/14
http://www.judis.nic.in Crl.R.C.No.937 of 2013 “7. Ceremonies for a Hindu marriage. -
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either parties thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.”
18. A reading of the above shows that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto and only if the ceremonies include the 'Saptapadi', the marriage becomes complete and binding when the seventh step is taken. But, be it noted that there are several Hindu communities whose marriage ceremonies do not include 'Saptapadi'. Thus, for the mere reason of 'Saptapadi' not being included in the ceremonies marriages cannot be held as invalid.
19. In Santi Deb Berma (supra), 'Saptapadi' was a ceremony in the marriage process of the parties thereon. In fact, in the State of Tamil Nadu, on account of Section 7-A, ibid, even exchange of 'garlands' in the presence of family members and friends is sufficient to establish the solemnisation of marriage. 12/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013
20. In such perspective of the matter, this Court does not find any infirmity in the judgments and orders passed by the Courts below, warranting interference.
In fine, this criminal revision is dismissed. The trial Court is directed to secure the accused and commit him to prison, for undergoing the remaining period of sentence, if any. The Registry is directed to return the original records to the Courts below concerned.
25.10.2019 nsd 13/14 http://www.judis.nic.in Crl.R.C.No.937 of 2013 P.N.PRAKASH, J.
nsd To
1. The Public Prosecutor, Coimbatore.
2. The Judicial Magistrate No.VII, Coimbatore.
3. The IV Additional District and Sessions Judge, Coimbatore.
4. The Deputy Registrar (Crl. Section), Madras High Court, Chennai - 600 104.
5. The Public Prosecutor, Madras High Court, Chennai – 600 104.
Pre-delivery order in Crl.R.C.No.937 of 2013 25.10.2019 14/14 http://www.judis.nic.in