Delhi High Court
Brij Lal Bishnoi vs State And Another on 25 April, 1996
Equivalent citations: 1996CRILJ4286, II(1996)DMC137
JUDGMENT Jaspal Singh, J.
1. The prosecution story revolves around four characters, K. J. Bose, Minati Basu, Brij Lal and Tapas Kumar. It is not that there are no other persons involved. There are, but then they move in the periphery - mere side characters introduced to complete some sequences. I shall come to them in due course. First, let me introduce the main characters. K. J. Bose claims to be married to Minati Basu. He was working as a Civilian Store Keeper in the Ordinance Depot, Shakur Basti. Not knowing what was to befall on him, he got Minati Basu also employed in the same Depot. This proved to be his undoing. It so happened that Brij Lal too was working in the same Depot and soon enough Minati found herself drawn into his amorous arms. One day she took her children, bid adieu to the four-walls of the house of Bose and set up an independent establishment of her own. And, with this her liaison with Brij Lal became more pronounced and open and all this despite protests from the character last in the list, namely Tapas Kumar who was none other but one born from her own womb and from the loins of Bose. She, however, would not relent. Nor would Brij Lal. Rather they started living together. Tapas Kumar thus became a witness to their games of flesh.
2. K. J. Bose ultimately filed a criminal complaint against Brij Lal. The charge obviously was adultery and during the trial besides the complainant himself, Tapas Kumar became all too important a witness and the fact is that in the witness box he minced no words. The trial thus saw Brij Lal convicted under S. 497 of the Indian Penal Code with an order to undergo rigorous imprisonment for a period of two years. This was challenged but the appeal too was dismissed. He has thus knocked at this court.
3. Mr. Sethi who appears for the petitioner has pressed this criminal revision only on one point. He says that the evidence on record does not prove that Minati was married to K. J. Bose. Surely, if it is so, the entire edifice raised by the prosecution would crumble to the ground.
4. Is marriage of Minati with Bose proved ? This, then, is the mother of all questions.
5. On the question posed above, besides the statement of the complainant, the statements of Sohan Lal (PW-7) and Gurbux Singh (PW-8) need to be noticed. The last two claim to have attended the marriage ceremony. Whereas, according to Sohan Lal "Phera ceremony" had taken place in his presence, Gurbux Singh, states that he too had attended the marriage which had been performed according to "Hindu rites". Coming to K. J. Bose, he too asserts as PW-1 that Minati Basu was married to him according to "Hindu rites". This then, is the evidence.
6. Does the evidence, as detailed above, suffice ? In other words, does it prove marriage ?
The learned counsel for the State submits that the parties to the marriage being Hindus and being governed by Hindu law, and there being evidence that marriage had been performed according to "Hindu rites" it ought to be taken as having been validly performed.
7. As would be noticed the argument proceeds on the assumption that Bose and Minati were Hindus. I have gone through the complaint filed by Bose. I have gone through his statement also. Nowhere it is alleged that they were Hindus and/or governed by Hindu law. Anyhow, let us assume that they were Hindus governed by Hindu law. What are the essentials of a valid Hindu marriage ? Section 7 of the Hindu Marriage Act provides the answer. It says :
"7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party 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."
8. Before I proceed further let me mention that it is not the case of the complainant nor is it suggested now, that the marriage was performed according to any custom governing the parties. The complainant speaks of Hindu rites. So does Gurbux Singh. It may also be mentioned that sub-sec. (1) of S. 7 of the Hindu Marriage Act retains the old law in regard to the ceremonies required for the validity of a marriage. And, what were those ceremonies ? This is what we are told in Deivanai Achi v. Chidambaram Chettiar, :
"There are really two essential elements necessary to constitute a valid marriage under Hindu law according to Shastras; one a secular element, viz. gift of the bride of 'Kanyadhana' in the four approved forms, the transference of dominion for consideration in the 'Asura' form and mutual consent or agreement between the maiden and the bridegroom in the 'Gandharva' form. These must be supplemented by the actual performance of the marriage by going through the form prescribed by the 'Grihyasutra' of which the essential elements are 'Panigraha' and 'Saptapadi'. In the case of 'Rakshasa' and 'Paisacha' forms also, there should be a marriage rite in the form prescribed by the Shastras. This is the religious element. Both the secular and the religious elements are essential for the validity of a marriage. The 'Gandharva' form of marriage is no exception to the rule."
9. The requisite of a valid marriage, thus, is that it should have been celebrated with proper ceremonies and in due form. Surely, to say that the marriage was solemnized according to Hindu rites or that "Phera" ceremony had taken place without anything more, cannot be taken to be sufficient to prove that necessary ceremonies had been performed.
10. But then, argues the learned counsel for the State, there is cogent and convincing evidence on the record to prove that Bose and Minati had lived together for years together as husband and wife and that he had sired her children as well. Should it not be taken as evidence enough, more so in view of S. 50 of the Evidence Act, to prove marriage ? Asks the learned counsel.
11. I have already noticed above the law and it is that in a case like the one in hand the complainant has to provide strict proof of the marriage. The mere fact that they had been living together as husband and wife giving birth to their progeny would not do in a prosecution for matrimonial offences. And, as for S. 50 of the Evidence Act, the fact that the man and woman spoke of each other as husband and wife, that others coming into their life in the passing or to endure also took them as husband and wife, proves nothing more than conduct, and conduct alone is no substitute of strict proof.
12. This still is not the end of the matter. It is argued on behalf of the State that there is an unequivocal admission on the part of the petitioner that Minati Basu was the legally wedded wife of K. J. Bose and, in this regard, my attention has been drawn to his statement recorded under S. 313 of the Code of Criminal Procedure. The relevant question and its answer run as under :
"Q. It is in evidence against you that Smt. Minati Basu is the legally wedded wife of K. J. Bose complainant and this fact was within your knowledge in December, 1967. What you have to say ?
A. It is correct."
13. Is this admission on the part of the petitioner sufficient to return a finding that Bose was legally married to Minati Basu ? Undoubtedly the answers given in a statement recorded under S. 313 of the Code can be taken into consideration in such inquiry or trial. Reference in this connection may be made to State of Maharashtra v. R. B. of Madhya Bharat, . In Narain Singh v. State of Punjab, , the Supreme Court observed that "if the accused person in his examination under S. 342 confesses to the commission of the offence charged against him, the court may, relying upon that confession, proceed to convict him". This very legal position was reiterated in State of Maharashtra v. Sukhdeo Singh, 1993 (1) CCC 57 (SC), wherein the Supreme Court said that there was no reason "why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under S. 313 of the Code."
14. Is it then, the end of the matter for the petitioner ? I do not think so.
15. I have very serious objections to the way the learned Metropolitan Magistrate proceeded to frame the question put to the petitioner. Let us have a look at it again, and this time with greater attention. It says :
"It is in evidence against you that Smt. Minati Basu is the legally wedded wife of K. J. Bose ....."
But then where is that evidence ? Even K. J. Bose does not state that Minati Basu was his "legally wedded" wife. The evidence is that the marriage was performed according to "Hindu rites" and that there was "Phera" ceremony. It is this material which appears against the accused and, therefore, it is this material which ought to have been put to the accused. This, surely, was not put. What was actually put was, with all respect, the conclusion arrived at or the opinion formed by the learned Magistrate on the basis of the material appearing on the record. Section 313 (earlier S. 342) of the Code of Criminal Procedure is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem and requires the accused to be examined for the purpose of enabling him "to explain any circumstances appearing in evidence against him." It does not require nor envisages recording of statement on something which does not appear in evidence. I have already noticed above that the evidence is only with regard to marriage having taken place "according to Hindu rites". It does not lead to the conclusion that the persons in question were "legally wedded". Thus neither there was evidence that Bose and Minati were legally wedded nor there was any justification for such a conclusion or opinion and this being the position there was no occasion to put the question in that form.
17. One thing more. The case relates to a matrimonial offence. In a prosecution under S. 497 of the Penal Code the question of marriage must be proved strictly. In such a case admission by an accused in his statement under S. 313 of the Code of Criminal Procedure that woman was the legally wedded wife of the complainant will not be of any avail to the prosecution if it otherwise fails to prove marriage between the complainant and the woman whose body stands violated.
18. As far back as in the year 1928 it was held by Wort J. in Ganga Patra v. Emperor AIR 1928 Pat 481 : (29 Cri LJ 1045) :
"In cases of that kind where the relationship of husband and wife comes into question it is necessary to prove strictly that relationship and that that matter is always in issue whatever the defense in the petition or the prosecution may be. I mention that because the learned Government Pleader suggests that even though the strictest proof is not given in this case, it is unnecessary by reason of the fact that there was a tacit admission on the part of the accused that the woman was the wife of the complainant. I cannot, however, accede to that proposition of law. If it is conceded, and I think it must be conceded, that in a prosecution under this section the question of marriage must be proved strictly then any inference, tacit or otherwise, will not avail the prosecution if they fail to prove strictly the marriage between the complainant and the woman whose chastity has been violated."
19. Similarly in Empress of India v. Kallu, (1883) ILR 5 All 233 and Morris v. Miller, (1767) 4 Burr 2057, it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case and significantly both these judgments were approved by the Supreme Court in Kanwal Ram v. H. P. Administration, . Of course, in the case before the Supreme Court the admission had been alleged to have been made by the accused in the written statement. It was observed :
"..... It is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it must be proved ....."
In Priya Bala v. Suresh Chandra AIR 1971 SC 1153, the above observations in Kanwal Ram's case (1966 Cri LJ 472) (SC) were approved and followed. It is true that that in Priya Bala's case (AIR 1971 SC 1153) also the admission was made in the objections filed against an application and not in a statement recorded under S. 313 of the Code but then I do not think that makes any difference. In any case the statement, in the light of the state of evidence noticed above, would not be sufficient to hold that essential ceremonies required for a valid marriage had been performed.
20. For the reasons recorded above, I allow the criminal revision and while giving the petitioner the benefit of doubt, set aside his conviction and sentence and acquit him of the charge.
21. Petition allowed.