Karnataka High Court
Smt.Tayawwa, W/O.Narasappa ... vs Sri.Narasappa, S/O.Lt.Gadigeppa ... on 25 February, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL No.2668/2009
BETWEEN
SMT.TAYAWWA, W/O.NARASAPPA DARSHANAKOLLA,
AGE: 70 YEARS,
R/O HOOLIKATTI,
TQ:SAUNDATTI.
DISTRICT: BELGAUM.
... APPELLANT
(BY SRI.: J S SHETTY, ADV.)
AND
1. SRI.NARASAPPA, S/O.LT.GADIGEPPA
DARSHANAKOLLA,
AGE: 80 YEARS,
R/O HOOLIKATTI, TQ:SAUNDATTI.
2. FAKIRAWWA W/O TIRAKAPPA GORABAL
R/O GORABAL,
AGE: 32 YEARS,TQ:SAUNDATTI.
... RESPONDENTS
(BY SRI.: MURAGENDRA B.TUBAKE ADV. FOR
SRI.JAGADISH PATIL)
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CRL.A FILED U/S.378(1) CR.P.C BY THE ADVOCATE
FOR THE APPELANT PRAYING THAT JUDGMENT AND
ORDER OF ACQUITTAL DATED 6/5/2009,PASSED BY THE
JMFC SAUNDATTI, AT: SAUNDATTI, IN C.C.NO.755/2007
MAY KINDLY BE SET ASIDE BY CONVICTING THE
ACCUSED FOR THE OFFENCES P/U/S/494,420 R/W
SECTION 34 OF IPC.AGAINST THEM.
THIS APPEAL COMING ON FOR FINAL HEARING ON
POLICE REPORT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred challenging the judgement of acquittal passed in CC No.755/2007 by the JMFC, Saundatti, dated 6/5/2009 for the offence punishable under Section 494 of Indian Penal Code, 1860.
2. Before adverting to the point involved in this case, it is just and necessary to bear in mind the factual matrix of this case.
3. A lady by name Tayavva W/o Narasappa Darshnakolla filed a private complaint under Section 200 Cr.P.C. for the offences punishable under Sections 494 and 420 r/w Section 34 of Indian Penal Code, 1860 3 making allegations that the complainant was the first wife of Accused No.1 and their marriage took place according to the Hindu Rights and Custom and during the course of converture the complainant and the accused No.1 were blessed with one girl by name Karevva. It is further alleged that the accused No.1 on 12/5/1987 married for the second time, the 2nd respondent herein (accused No.2 before the trial Court) according to the rights and customs existing at that point of time. It is also stated that the marriage between accused Nos.1 and 2 was registered in the office of the Sub-Registrar on 1/8/2003. The accused Nos.1 and 2 knowing fully well that the marriage between accused No.1 and the complainant was not desolved and not declared as void by any Court of law and during the existence of the first marriage, the accused Nos.1 and 2 joined together and got themselves married. Therefore, the accused Nos.1 and 2 have committed the offences 4 under Sections 494 and 420 of IPC. The accused persons in fact have appeared before the trial Court and contested the proceedings. The trial Court has recorded the plea of the accused and infact, the accused persons have not pleaded guilty and therefore, the trial Court after recording the evidence on the side of the complainant as well as the accused and after analysing the oral and documentary evidence on record, came to the conclusion that the complainant has not proved her case beyond reasonable doubt and the trial Court has acquitted the accused. Against which the present appeal is preferred.
4. The learned Counsel for the complainant- appellant strenuously contends that the second marriage is admitted by the first respondent herein. The registration certificate produced before the trial Court, marked at Ex.P2 and other documents amply clears the doubt that accused Nos.1 and 2 have married each other 5 during the existence of the marriage between accused No.1 and complainant. There is no need for the complainant to prove what are the ceremonies that have been followed during the second marriage between accused Nos.1 and 2, because of the reason, the said marriage has been registered, all the ceremonies and rituals under the custom shall be taken as deemed to have been performed as the marriage has been registered. Therefore, drawing the presumption under Section 114 of the Indian Evidence Act, the Registration of the marriage has to be taken as proof. Therefore, when the first marriage is in existence and proof of the second marriage is given before the trial Court, the trial Court ought not to have acquitted the accused, on the other hand convicted the accused persons for the offences punishable under Section 494 of Indian Penal Code, 1860.
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5. Contrary to the above said submissions, the learned Counsel for the accused-respondent submitted that the trial Court after considering in detail the evidence of parties and also considering the effect of registration certificate of the marriage marked under Ex.P2, the Court has properly drawn the inferences, that it is not sufficient proof, in acquitting the accused. There is no room to interfere with such a reasoned order passed by the trial Court. Hence, he prays for dismissal of the appeal. On the basis of the above said rival contentions, the only the point that would arise for the consideration of this Court is
i) Whether the trial Court has committed any serious legal or factual error in recording a judgement of acquittal against the respondents herein?
ii) What order?
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6. The major point involved in this particular case is that whether registration of the marriage between the respondent Nos.1 and 2 will absolved the complainant from proving the customary rituals or ceremonies that ought to have been followed and have been in fact followed by the accused Nos.1 and 2 in order to hold that the second marriage is also a valid marriage, whether the complainant is absolved from proving the first marriage as a valid marriage. Because if the first marriage and the second marriage are valid in accordance with the ceremonies and custom prevailing in their community but because of Section 17 of the Hindu Marriage Act, the second marriage is void. The burden is on the complainant to establish the first and second marriages are valid.
7. Before adverting to this particular legal aspect, first let me see the evidence placed before the Court and the complaint averments. It is seen that in the 8 complaint, the complainant in the first paragraph has only stated that the marriage between herself and accused No.1 was taken place in accordance with the customary ceremonies prevailing in their community but, in so many words it is not stated what are all the ceremonies that have been performed at the time of the marriage between accused No.1 and the complainant. There is not even a whisper what are the ceremonies that they have followed, actually, during the course of the said marriage. At paragraph 3, again it is stated that accused Nos.1 and 2 have married each other according to Hindu Custom, but, no where in the complaint, it is stated what are the ceremonies which are existing in the said community and whether those ceremonies have been followed by accused Nos.1 and 2 in entering into the second marriage. Therefore, so far as pleading is concerned in the complaint, there is absolutely no material with regard to the performance of the marriage 9 between accused Nos.1 and 2 after following any ceremonies prevailing in the said community of accused Nos.1 and 2 and that of the complainant and further, those ceremonies have been followed. In the evidence also, in the examination-in-chief of the complainant, examined as PW-1, the same has been reiterated as stated in the complaint, in the evidence also nothing more has been elicited during the course of examination- in-chief. In the examination-in-chief, nothing has been stated as to the ceremonies prevailed in the community of the complainant and the accused No.1 and whether those ceremonies have been followed either at the time of first marriage or at the time of the alleged second marriage between accused Nos.1 and 2.
8. Now, the question that arises is, whether registration of marriage raises any presumption and if so, what is the nature of that presumption? Section 114 of the Indian Evidence Act, which empowers the Court to 10 draw a presumption with regard to the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of particular case. Therefore, on the basis of the registered document of marriage, the Court can only draw the inference that unless the presumption is rebutted, the Court has to presume that all the ceremonies prevailing in the community of the accused and the complainant have been followed and thereafter only, the marriage has been registered between parties.
9. In this regard, it is worth to note the decision of Hon'ble Supreme Court, reported in (2006) 2 SCC 578 between Seema Vs. Ashwini Kumar, wherein the Hon'ble Supreme could held that:
"Registration of marriages- Marriages of all persons who are citizens of India belonging to 11 various religions should be made compulsorily registrable in their respective States, where marriages is solemnized."
Under Sections 77 and 114 of Indian Evidence Act, - The evidentiary value of marriage certificate is also discussed. It is said that the presumption arising from the registration of marriage itself cannot be a proof of valid marriage per-se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in family matters- As a natural consequence, effect of non-registration would be that the presumption available from registration of marriages would be denied to a person whose marriage is not registered.
10. On plane reading of the above said provisions and also the above said rulings, it goes without saying that the registration of marriage takes place only after 12 the marriage is being solemnized. Solemnization of marriage presupposes the performance of all the ceremonies and customs prevailing in the community of complainant as well as accused No.1. Therefore, if this particular presumption that the marriage between the accused Nos.1 and 2 was solemnized is not rebutted, then the Court can draw an inference that the second marriage is valid and because of Section 17 of the Hindu Marriage Act, that becomes a void marriage.
11. In another ruling, reported in (2001) 7 SCC page 487 between S.Nagalingam Vs.Sivagami, wherein the Hon'ble Supreme Court held that:
Section 494 -Bigamy - Second marriage performed without a ceremony of "Saptapadi" - Validity of, for the purpose of constituting offence under Section 494 - "Saptapadi" is an essential ceremony for a valid marriage only in case where it is admitted by the parties entering into the marriage 13 that it is an essential ritual to be performed for the marriage as appear personal law or form of marriage applicable to them- Section 7(A) of Hindu Marriage Act, 1955 (as inserted by the Hindu Marriage (Tamil Nadu Amedement) Act 1967), validates the marriage performed between the parties concerned by garlanding each other or putting a ring upon any finger of the other or tying a thail - So second marriage entered into by the appellant-accused with another women. Under the said Act without ceremony of Saptapadi, was a valid marriage so as to constitute an offence under Section 494 of Indian Penal Code, 1860"
(Emphasis supplied)
12. Requirement of valid marriage has to be proved by the parties to the suit. Therefore, the ceremonies have to be stated by the parties what exactly the ceremonies prevailing in the community and whether 14 those ceremonies are followed or not. If Saptapadi is one of the ingredients of the marriage, if it is established by the evidence of the parties that Saptapadi is a legal requirement to constitute a marriage then non- performing of such ceremony invalidates the marriage and therefore, such marriage cannot be called as a valid marriage.
13. Now, the Court has to examine whether this presumption of solmanization of marriage raised in favour of the appellant is rebutted by the respondents before Court or not.
14. As I have stated that the complainant has never stated in the examination-in-chief or in the complaint, regarding the ceremonies that have to be followed in their community for the purpose of entering into a valid marriage nor any evidence is led to that effect, but, in the course of cross examination, she has categorically admitted that there are certain ceremonies 15 to be followed for the marriage. She has specifically stated that according to their community at the time of marriage, there was Surgi program, Arishinadhare, tying of Mangalya, Saptapadi are all the ceremonies which have to be followed in their community and she has specifically and categorically admitted that all those ceremonies were not followed, when the accused Nos.1 and 2 have married each other. But, she has stated that they have married with each other by means of a registered marriage.
15. Looking to the above said evidence, it is clear that on presumption of solemnization of marriage is raised in favour of the complainant by virtue of presumption under Section 114 of Indian Evidence Act, is successfully rebutted during the course of cross- examination by establishing that there were ceremonies ought to have been followed by accused Nos.1 and 2 to enter into a wed lock. Saptapadi is also one of the 16 important ceremony ought to have been followed by accused Nos.1 and 2. But, specifically it is admitted that those ceremonies have not been followed. Therefore, even considering that the Court may presume the existence of solemnization of marriage between the parties, but, that particular presumption being a rebuttable presumption has been successfully rebutted by the accused persons. Therefore, there is no reason for this Court to interfere with the judgement of acquittal recorded by the trial Court.
16. It is also well recognized principles of law that the judgement of acquittal should not be casually interfered or set aside by the Appellate Courts. Because of two reasons, one is when the complaint is filed, the accused has to be tried on the fundamental principle that the accused is an innocent. Unless the case is proved against him, he is considered to be an innocent man. When acquittal judgement is recorded by the trial 17 Court, it fortifies his innocence that too non proving of the case by the person who alleges such offence against the accused. When the presumption of innocence is fortified by the judgement of acquittal, such being the case, the Appellate Court should be very slow in interfering with such decision. Further, added to that, if the view taken by the trial Court is perverse, illegal and irregular which is not curable in nature, then only the Appellate Court by means of substituting its reasons and views can interfere with the judgement of the trial Court.
17. Applying the above said principles, to this particular case, I do not find any such perversity or illegality in the judgement of the trial Court. The only view that could have been taken by any Court has been taken by the trial Court.
18. Hence, with these reasons, I answer the point formulated by me in negative and proceed to pass the following order:-
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The appeal is dismissed. The Judgement of acquittal recorded by the trial Court is hereby confirmed.
SD/-
JUDGE VMB