Delhi District Court
Santosh Yadav vs Mukhtyar Singh on 1 August, 2016
IN THE COURT OF SH. ANKUR JAIN
ADDL. CHIEF METROPOLITAN MAGISTRATE
DWARKA COURTS : NEW DELHI
Santosh Yadav Vs Mukhtyar Singh
CC No: 294/13
PS: Dwarka Sector 23
U/s: 494 IPC
Date of Institution of the case : 08.04.2011
Date for which the Judgment reserved : 22.07.2016
Date on which the Judgment pronounced: 01.08.2016
a) Unique ID of the case : 02405R49931182016
b) Final Judgment : Acquittal.
In the matter of:
Smt. Santosh Yadav
W/o Sh. Mukhtyar Singh
R/o House No. 70,
Sector-8, Dwarka,
New Delhi ... Complainant
Versus
1. Mukhtyar Singh
S/o Late Sh. Sukhram
R/o Khasra No. 47/12/2,
Near Green Valley Farm House,
Village Hastsal, Uttam Nagar,
New Delhi. ... Accused
JUDGMENT
1. Brief facts of the case are that a complaint was filed by Mrs. Santosh Yadav alleging that on 01.07.1981 she had solemnised the marriage with accused No. 1 according to Hindu rites and ceremonies and two daughters namely CC No:294/13 Santosh Yadav Vs Mukhtyar Singh Page 1 of 7 Saraswati and Jyoti and son namely Anand were born out of this wedlock. It was alleged that Ms. Renu was the second wife of Mukhtiyar Singh. This fact came to the knowledge of complainant on 01.05.1993 and when complainant went to the matrimonial home and opposed the keeping of accused no. 2 as the second wife, she was beaten and accused no. 1 compelled her to leave the matrimonial house. Since then complainant has been residing at Village Bagdola, New Delhi.
2. In support of her case, complainant examined four witnesses and vide order dated 30.09.2011, accused no. 1 was summoned for committing an offence punishable u/s 494 IPC. Thereafter, pre-charge evidence was led. In pre- charge evidence, three witnesses were examined. CW-1 is Ms. Santosh Yadav, the complainant herself. CW-2 is Sh. Inder Raj Yadav, who is the uncle of accused Mukhtiyar Singh and he stated that Mukhtiyar Singh got married with another lady namely Renu Devi. CW-3 is Sh. Desh Ram Yadav, who was the father of the complainant.
3. Vide order dated 15.02.2016, charge was framed to which accused pleaded not guilty and claimed trial. Neither the complainant nor the accused examined any other witness after the framing of charge.
4. Ld. Counsel for complainant has argued that permanent cohabitation of woman as husband and wife raises the presumption of marriage and presumption has not been rebutted by the accused, therefore, the complainant has CC No:294/13 Santosh Yadav Vs Mukhtyar Singh Page 2 of 7 been able to prove its case beyond reasonable doubt.
5. In support of its case, counsel for complainant has relied upon Dhannulal Vs. Ganeshram & Anr. (2015) 12 SCC 301; Reema Aggarwal Vs. Anupam & Ors. (2004) 3 SCC 199; A Subhash Babu Vs. State of AP & Anr. (2011) 7 SCC 616; Binapani Debi Vs. Ajit Banerjee (1983) CrLJ 1440; Narottam Singh Vs. State of Punjab & Anr. AIR 1978 SC 1542; Sastry Velaider Aronegary Vs. Sembecutty Vaigalie Vol. VI PC 364, and Inderun Valungypooly Taver Vs Ramasawmy Pandia Talaver 1869 (141).
6. On the other hand, counsel for the accused has relied upon Rajesh Boyra Vs. State of M.P. 2014 CrLJ 4949 and has argued that none of the ceremonies required for a valid marriage has been proved, and therefore, accused is liable to be acquitted.
7. I have heard the Ld. Counsel for the complainant as well as accused and perused the record.
8. Before coming to the factual matrix, it is important to note the legal position.
9. The Hon'ble Supreme Court in Dhanno Lal's case (supra) while deciding a civil appeal has observed that the law will presume that there is a valid marriage in case a man and woman are living together as husband and wife.
CC No:294/13 Santosh Yadav Vs Mukhtyar Singh Page 3 of 710. In Reema Aggrarwal's case (supra) it has been observed that when the fact of celebration of marriage is established, it will be presumed in the absence of evidence to the contrarily that all the rites and ceremonies to constitute a valid marriage has been gone through.
11. In A Subhash Babu (supra), the Hon'ble Supreme Court has observed that Section 494 IPC introduces monogamy which is essentially voluntary union of life of one man with one woman to the exclusion of all others. It enacts that neither party must have spouse living at the time of marriage.
12. On the other hand, the Hon'ble Supreme Court in Bhaurao Shankar Lokhande Vs. State of Maharashtra AIR 1965 SC 1564 and till the judgment of A Subhash Babu has held that, the word 'solemnize' means, in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is, therefore, essential for the purpose of Section 17 of the Act, that the marriage to which Section 494 IPC applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the CC No:294/13 Santosh Yadav Vs Mukhtyar Singh Page 4 of 7 intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom.
13. The Hon'ble Supreme Court in Gopal Lal Vs. State of Rajasthan (1979) 2 SCC 170 has held that where a spouse contracts a 2nd marriage while the first marriage is still subsisting, the spouse would be guilty of bigamy u/s 494, it it is proved that the 2 nd marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under Section 17 of Hindu Marriage Act, is infact one of the essential ingredients of Section 494 IPC. Similar views have been taken by the Hon'ble Supreme Court in Lingari Obulamma Vs L. Venkata Reddy (1979) 3 Supreme Court Cases 80; Priya Bala Ghosh Vs Suresh Chandra Ghosh (1971) 1 Supreme Court Cases 864; and P. Satyanarayana and another V P. Mallaiah & others (1997) CRI.L.J.211.
14. Even in A Subhash Babu's case (supra) in para 23 while relying in Gopal Lal (supra) has held that in order to attract provision of Section 494 IPC, both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must be performed.
15. In view of the categorical judgments of the Hon'ble Supreme Court the judgments relied by the complainant are not applicable in as much as in the case of Dhanno Lal CC No:294/13 Santosh Yadav Vs Mukhtyar Singh Page 5 of 7 (supra) the question was with regard to the civil disputes between the parties. The question of Section 494 IPC was not involved.
16. Similarly, Reema Aggarwal's case (supra) was regarding application of Section 304-B and 498-A IPC. It is in this context, the observations were made and the presumptions were raised.
17. In the judgment of Binapani Debi (supra), the evidence on record with regard to saptpadi was available, which is not so in the present case. The judgment of Narottam Singh (supra) is also not applicable as compromise was arrived at and the case was posted for final order after the compliance of monetary conditions. The judgments of Sastry Velaider (supra) and Inderun Valungypooly Taver (supra) are not applicable, since both these judgments raise presumption. However, in view of categorical judgments of Hon'ble Supreme Court, these judgments are not applicable to the facts of the case.
18. In the present case, CW-1 is the complainant, who in her cross examination has stated that she and her husband has not lived as such since 1991. She further deposed that she does not have the photographs of the 2 nd marriage. She has also admitted that neither she had seen the solemnisation of 2nd marriage. CW-2 Inder Raj has stated that he is the uncle of accused Mukhtyar Singh and the marriage of Mukhtyar Singh was solemnised with Santosh Kumari. However, in his cross examination, he stated that CC No:294/13 Santosh Yadav Vs Mukhtyar Singh Page 6 of 7 he had not seen the seven steps on fire of 2 nd marriage, neither he had seen any Court certificate of the 2nd marriage. CW-3 is Desh Ram Yadav, who is the father of the complainant has deposed about the fact that he came to know about the 2nd marriage in the year 1983.
19. The present complaint has been filed in the year 2011.
almost after 20 years. Admittedly, there is no period of limitation but no sufficient cause has been shown as to why the complaint has been filed after 20 years.
20. Therefore, in view of the above discussions, the judgments relied by counsel for the complainant are not applicable to the facts of the present case. Moreover, there is no evidence on record to suggest that any of the witnesses have seen any ceremonies being performed, which are sine-quo-nun for the validity of the 2nd marriage.
21. The complainant has not been able to prove its case beyond reasonable doubt. Hence, accused Mukhtyar Singh is, accordingly, acquitted in the present case.
12. Put up for furnishing of bail bonds in terms of Section 437- A Cr.PC on 03.08.2016 at 02:00 p.m. ANNOUNCED IN THE OPEN COURT on 1st day of August, 2016 (ANKUR JAIN) ADDL. CHIEF METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT DWARKA COURTS : NEW DELHI 01.08.2016 CC No:294/13 Santosh Yadav Vs Mukhtyar Singh Page 7 of 7