Delhi District Court
Santosh Sehgal vs Murari Lal Sehgal on 1 February, 2024
IN THE COURT OF Ms. NEETIKA KAPOOR, METROPOLITAN MAGISTRATE-06,
SOUTH WEST DWARKA, DWARKA COURTS, DELHI.
Initial Ct. No. : 192/1 of 1995
Ct. Case No. : 12829/2019
P.S. : Vikaspuri
U/s : 494/34 IPC
SANTOSH SEHGAL VS. MURARI LAL SEHGAL & ANR.
a) Name & address of the Complainant: Santosh Sehgal,
W/o Murari Lal
Sehgal, R/o
c) Name & address of the accused : (1) Murari Lal Sehgal,
S/o Jagannath, R/o H. No. A-
54/7, Gali No. 2, Peer Baba
Road, Adhyapak Nagar,
Nangloi, Delhi.
(2) Maya Devi D/o Kanhaiya
Lal Rewri, R/o H. No. 9,
Friends Enclave, Sultanpuri
Road, Nangloi, Delhi.
d) Offence complained of : 494/34 IPC
e) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
Date of registration of case : 23.02.1995
Date of order on summoning : 14.03.1997
Final arguments heard on : 23.01.2024
Judgment Pronounced on : 01.02.2024
Digitally signed by
NEETIKA NEETIKA KAPOOR
KAPOOR Date: 2024.02.07
17:33:20 +0530
Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 1 of 20
JUDGMENT
1. The accused persons namely, Murari Lal Sehgal and Maya Devi (herein after referred to as Accused no.1 and 2 respectively) are facing trial for the commission of offences punishable under Section 494 read with 34 of Indian Penal Code, 1860, (herein after referred to as "IPC"), in criminal complaint case no. 13703/16 pertaining to P.S. Vikas Puri.
2. The factual matrix giving rise to the present complaint is that complainant Santosh Sehgal had gotten married to Accused No. 1 Murari Lal Sehgal according to Hindu rites and ceremonies on 26.03.1982 and two daughters namely Veenu and Kannu priya were also born out of this wedlock on 10.02.1983 and 08.04.1984 respectively. It is alleged that subsequent to the marriage, Accused No. 1 made repeated demands for dowry forcing the complainant to leave the matrimonial home on 05.06.1984. In the year 1986, Complainant and Accused No. 1 reconciled their differences subsequent to a compromise in Anti Dowry Cell and started co-habiting in the matrimonial home, however, despite reconciliation, relationship between them remained strained, differences cropped up and once again complainant left the matrimonial home in 1986. It is alleged that soon thereafter, she learnt that Accused No. 1 had solemnized a second marriage with Accused No. 2 Maya Devi somewhere in the year 1984 and was residing with her in H. No. 9, Friends Enclave, Nangloi, Delhi. It is also alleged that two children i.e. one daughter namely Sunny and one boy namely, Bunny were also born to Accused no.1 from his second marriage. It is alleged that this marriage was also attended by family members of both accused persons despite them having knowledge about subsistence of first marriage of Accused no.1. Feeling aggrieved, complainant filed the instant complaint u/s 200 of Code of Criminal Procedure, 1973 (herein after referred to as CrPC), against Murari Lal Sehgal, Maya Devi, Mohan Lal Sehgal (cousin of Accused no.1), Soma Devi (sister of Accused no.1), Kanhaiya Lal Rewri (father of Accused no.2), Krishan Lal Rewri (brother of Accused no.2) and Mohan Lal Kapoor (brother-in-law of Accused no.1) for commission of offence u/s 494, 109 read with 34 IPC.
3. Cognizance for the afore-said offences was taken by Court and complainant was awarded an opportunity to advance Pre-summoning evidence Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:33:28 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 2 of 20 in support of her complaint wherein she examined herself as CW-1 along with her brother namely, Sh. Inderpal Arora as CW-2 and Ms. Meenakshi Chopra, Counselling Investigator Social Welfare Board, New Delhi as CW-3. On finding, prima facie sufficient material on record, summons were issued to only Accused No. 1 Murari Lal Sehgal, Accused No. 2 Maya Devi and Accused No. 3 Kanhaiya Lal Rewri for commission of offences u/s 494 and 109 r/w 34 IPC. Summoned against remaining proposed accused persons were not issued for want of sufficient incriminating material on record.
4. On their appearance, copies of the complaint and other documents were supplied to accused persons in compliance of Section 207 CrPC. During the course of proceedings, it was reported that the original case file had been destroyed and subsequently, case record was reconstructed as per rules. Accused no.3 Krishan Lal Rewri had expired and consequently, proceedings against him were abated.
5. Thereafter, matter was fixed for pre-charge evidence, wherein complainant stepped into the witness box as CW-1 and was duly cross-examined and discharged by Ld. Counsel for accused persons. CW-2 Inderpal Sharma, CW-3 Prem Prakash Sharma, CW-4 Daljit Kaur and CW-5 Meenakshi Chopra were also cross-examined and discharged.
6. Arguments on charge were heard. On finding a prima-
facie case against the accused persons under Sections 494 r/w 34 IPC, charge was put to them, to which they pleaded not guilty and claimed to have a defence to make.
7. Thereafter, matter was fixed for post-charge evidence wherein complainant/CW-1 was further cross-examined by Ld. Counsel for accused persons. Witness Banish also stepped into the witness box as CW-6 and was examined, cross-examined and discharged. Accused persons had preferred not to cross- examine the remaining witnesses further.
8. Thereafter, complainant evidence was closed and incriminating evidence adduced by complainant was put to accused persons by recording their separate statements u/s 313 Cr.P.C, wherein both accused persons denied the case of NEETIKA Digitally signed by NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:33:33 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 3 of 20 the complainant in totality and categorically stated that no marriage ceremony had been solemnised between them. Both of them stated that accused No. 1 was a tenant of father of accused No. 2 in the year 1980-81. Accused no.1 further stated that in 1988, he had been posted in Agra where he had worked for 06 years. Accused No. 2 stated that she resided with her father in Friends Enclave whereas accused No. 1 was a tenant of her father in Punjabi Basti. She further deposed that though members of Mahila Mandal had come to her house and asked her about their marriage but she had denied the same. She further deposed that Pandit Chiman Lal was her uncle but she had never stated to him that accused no.1 was her husband. Both accused persons denied existence of any matrimonial relationship between them or any biological relationship between Accused no.1 and son of accused no.2, namely, Banish. Both of them opted not to lead any evidence in their defence. Thereafter, final arguments were heard.
9. I have heard Sh. Arvind Vashisht, Ld. Counsel for the complainant and Sh. Robin Kamra, Ld. LADC for accused No. 1 and Sh. Vinod Suhag, Ld. LAC for accused No. 2 and have gone through the records carefully.
10. It is argued by Ld. counsel for complainant that ingredients of offence u/s 494/34 are fulfilled in the present case. He argued that all the complainant witnesses have categorically deposed about the factum of second marriage of accused No. 1 with accused No. 2 and there is no ground to disbelieve their testimonies. He further argued that the documentary evidence on record has proved the commission of offence beyond reasonable doubt. As such, it is prayed that accused persons be punished for the said offence.
11. Per contra, Ld. Counsels for accused persons have argued that complainant has failed to establish her case beyond reasonable doubt. They have argued that the whole case is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that complainant has failed to discharge the burden cast upon her. As such it is prayed that accused persons be acquitted for the said offence.
12. Based on evidence on record, the following points arise for determination in the present case:
Digitally signed byNEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:33:39 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 4 of 20
(i) Whether Accused no.1 Murari Lal Sehgal, during subsistence of his marriage with complainant Santosh Sehgal, in furtherance of his common intention with accused no.2 Maya Devi, solemnised a second marriage with latter, somewhere in the year 1984, as alleged?
(ii) Final order.
13. For the reasons to be recorded hereinafter while discussing the reasons for my findings, my findings on the aforesaid points are as under:
Point No. 1: No
Final order: The accused persons are acquitted as
per the operative part of the judgment.
REASONS FOR FINDINGS
POINT NO. 1
14. Before dwelling into the facts of the case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish an offence u/s 494 IPC, complainant must prove that accused no.1 during subsistence of his marriage with complainant, solemnized a second marriage with accused no.2 by performing necessary rites and ceremonies of a valid marriage.
15. Offence under Section 494 IPC is reproduced herein below for ready reference:
"494. Marrying again during lifetime of husband or wife.--Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception.--This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been NEETIKA Digitally signed by NEETIKA KAPOOR KAPOOR 17:33:46 +0530 Date: 2024.02.07 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 5 of 20 continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."
16. The essential ingredients of Section 494 IPC as enlisted by Hon'ble Apex Court in case of Gopal Das Vs. State of Rajasthan (1979) 2 SCC 170 are as under :
"..3. The essential ingredients of this offence are:
(1) that the accused spouse must have contracted the first marriage, (2) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and, (3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed..."
17. There is no dispute on the proposition that performance of essential rites and ceremonies such as Saptapadi in case of Hindu marriage is sine qua non for establishing the guilt of bigamy u/s 494 IPC and in order to make out a case for conviction u/s 494 IPC, the court has to consider whether complainant has been able to prove her case beyond reasonable doubt i.e. whether complainant has been successful in bringing proof of performance of essential ceremonies at the time of solemnization of marriage between accused No. 1 and accused No. 2.
18. The Division Bench of Hon'ble A.P. High Court in the case of Padullaparthi Mutyala Paradeshi v. Padullaparthi Subbalakshmi (1962 CRILJ
308) held at para.18 as follows:
"18. Before proceeding to consider whether the proof in respect of a, second marriage is different from that concerning the first marriage, we would set down the propositions deducible from the above discussion:
(1) A marriage cannot be proved merely by statements which relate to the existence of any relationship or by the opinion of any person given out or even expressed by Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:33:52 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 6 of 20 conduct as to the existence of such relationship of any person although that person has special means of knowledge on the subject; or (2) by the admissions made by the parties to the marriage who may at times be actuated by ulterior motives; but if, in addition thereto or independently, any evidence of the parents of the parties regarding celebration or solemnization of a marriage is available it would go a long way in establishing the factum of marriage...."
19. Thus, from the exposition of law made in the aforesaid judgments, the legal position is manifest that in order to prove an offence of bigamy under Section 494 IPC, firstly, the factum of the second marriage has to be established and proved like any other fact with acceptable legal evidence; secondly, it has to be proved that the said second marriage was solemnized in due form as per the custom and ceremonies prevailing in the said community; and thirdly, it has to be proved that both i.e. the first marriage and the second marriage are valid marriages solemnized as per the ceremonies prevailing in the community. {Refer: B. Parvathi vs. State of Andhra Pradesh, decided on 7th May, 2020). If the second marriage is proved to be solemnized as per the ceremonies prevailing in the community and if it is found to be a valid marriage, then Section 17 of the Hindu Marriage Act makes the said second marriage void which took place during the life time of the spouse of one of the parties to the said marriage and it also makes the said second marriage an offence punishable under Section 494 IPC.
20. Therefore, it is to be now ascertained from the facts of the case and the evidence produced by the complainant during trial whether there is any evidence to establish the factum of the second marriage i.e. that the second marriage has in fact taken place. If so, whether it was solemnized in due form as per the ceremonies prevailing in the said community to hold that it is a valid marriage or not, and whether any offence of bigamy punishable under Section 494 IPC was committed or not.
21. It is trite that in criminal law, the burden of proof on the complainant/prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be rebutted by the prosecution by adducing cogent evidence that unerringly points towards the guilt of the accused. The evidence in the case at hand, is to be weighed keeping in view these legal standards.
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22. Now, it is not in dispute that marriage between complainant Santosh Sehgal and Accused No. 1 Murari lal Sehgal had been solemnized according to Hindu rites and ceremonies on 26.03.1982 and out of this wedlock two daughters namely, Kannupriya and Veenu Sehgal were born. It is also not in dispute that relations between complainant and accused no.1 were strained due to which former had also lodged a complaint in Anti-dowry cell against the latter where eventually a compromise was effected between them in the year 1986. It is also not disputed that in the year 1986 itself, complainant had again left the matrimonial home and had started living separately in a rental accommodation. It is also admitted that divorce proceedings were going on between the parties and a decree of divorce was also passed by the concerned court though the same was, subsequently, challenged by the complainant. Though, what was the fate of the divorce decree remained unanswered, however, these arresting facts are sufficient to prove the existence of a valid marriage between complainant and accused no.1 at the time of filing of the instant complaint. It has been alleged by complainant that it was during period of their separation that she had learnt about factum of second marriage of accused No. 1 with accused No. 2. Pertinently, the entire case of complainant is based on the piece of information she had received during period of her separation from neighbours and public persons who had seen the accused persons acting as husband and wife and thus, testimonies of complainant and eye- witnesses are material and critical to the instant case to prove the commission of alleged offence beyond reasonable doubt.
23. In order to prove her case, Complainant Santosh Sehgal stepped into the witness box as CW-1 and deposed that she had been married to Accused No. 1 Murari Lal Sehgal on 26.03.1982 according to Hindu rites and ceremonies and out of this wedlock two daughters namely Veenu Sehgal and Kannupriya were born. On 05.06.1984, she was forced to leave her matrimonial home due to dowry demands by her husband and in-laws. In the year 1986, after reconciliation, she again resided with her husband but since their relationship did not improve, she left the matrimonial home the same year and started living separately in a rented premises. She further deposed that during this time she learnt that her husband had performed a second marriage and in this regard she had lodged a complaint in Anti Dowry Cell and PS concerned. She further deposed that she had learnt that her husband had married accused No. 2 Maya Devi and was living with her in H. No. 9, Friends Enclave, Nangloi, Delhi and out of this marriage, Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:03 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 8 of 20 two children i.e. a daughter namely Sunny and a son namely, Bunny/Banish were born. She further deposed that Maya Devi knew that Murari Lal Sehgal was already married to her. The marriage between accused persons was attended by her sister-in-law namely Soma Devi, cousin brother of accused No. 1 namely Mohan Lal Sehgal, accused no.3 Kanhaiya Lal, brother of accused no.2 namely Krishan Lal and brother-in-law of accused no.1 namely, Mohan Lal Kapoor. Witness also brought a photocopy and negative of a photograph of accused No. 1 and 2 which is Ex. P2. She also brought a photocopy of electoral slips (Mark B) showing the names and other details of accused No. 1 and 2 and son of accused no.2 at entry No. 85, 86 and 87.
24. In her cross-examination by Ld. Defence counsel, she admitted that she had lodged a complaint in PS u/s 494 IPC for investigation regarding factum of second marriage of accused No. 1 and 2 but police had registered a case u/s 498A/406 IPC. She voluntarily deposed that she had made number of complaints against her husband in PS before registration of FIR No. 201/1988 u/s 498A/406 IPC. She also admitted that her husband had been convicted in the said FIR by the Ld. Trial Court but was subsequently acquitted by the Ld. Sessions Court in appeal. She further admitted that her husband had filed a divorce petition wherein she had raised the issue of second marriage between the accused persons but their marriage was dissolved by the decree of divorce by the concerned court without finding any merit in her submission. She further admitted that she had filed an appeal against the divorce decree before Hon'ble High Court of Delhi but due to non-payment of maintenance the appeal was adjourned sine die. She again said that the Hon'ble High Court had set aside the decree of divorce. She failed to state the date when her husband had married accused No. 2 Maya Devi. She denied the suggestion that accused No. 1 had not married accused No. 2. She further deposed that she was not residing at the address A-1/16, Hastsal Vihar, Uttam Nagar, New Delhi for the last 2-3 years as there was no electricity or water connection in the said house. She deposed that she was drawing electricity and water from her brother's house which is just opposite to the stated address. Photographs of aforesaid house were shown to the witness which are Ex.CW1/D1, Ex.CW1/D2 and Ex.CW1/D3. She further deposed that her husband had not resided in the said house since 1988. She further deposed that she had left the matrimonial home for the first time in the month of June, 1984 but was brought back by her husband in the year 1986 and after living together for 4-5 months, she again went back to her brother's house. She again returned to the matrimonial home in January, NEETIKA Digitally signed by NEETIKA KAPOOR KAPOOR 17:34:09 +0530 Date: 2024.02.07 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 9 of 20 1988 and lived there with her husband and mother in law. She denied the suggestion that she had compelled her husband and mother in law to leave the said house. She further deposed that thereafter, her husband started residing with accused No. 2. She further deposed that in the year 1988, accused No. 1 was posted in Agra and he used to occasionally come and stay at Friends Enclave, Uttam Nagar. She denied the suggestion that she had assaulted her mother in law and an FIR No. 116/89 was registered at PS Vikaspuri u/s 325 IPC against her. She again said that the FIR was registered against her but her mother in law was not residing with her during that period. She denied the suggestion that she had thrown her mother in law out of the house after beating her due to which FIR was registered. She further deposed that she had made several complaints against her husband. She denied the suggestion that accused Murari Lal had left his job because of these complaints. She further deposed that she had not seen the marriage ceremony between the accused persons but was informed by someone about the same. She denied the suggestion that she had made false allegations against Maya Devi in order to defame her. She voluntarily deposed that accused No. 1 used to live in the rental accommodation with accused No. 2 even prior to 1981. She denied the suggestion that she had no proof of second marriage of accused No. 1 and has filed the case with malafide intention. She voluntarily deposed that accused persons had married in 1984 but she had learnt about the same in 1986. She again deposed that she was informed by the neighbours that accused persons had married in a very private ceremony. She further deposed that she was told by one Pandit Chiman Lal that he had married Murari Lal in Kashmir and that accused Murari Lal had introduced Maya Devi as his wife. She admitted that no marriage certificate or any documentary proof regarding the marriage ceremony had been placed on record. She admitted that no photograph or documentary proof of Saptpadi between accused persons is on record. She failed to state the specific address of Pandit Chiman Lal but simply stated that he resided in Punjabi Basti, Nangloi. Witness failed to state the name of the neighbour who had told her about the marriage ceremony between accused persons. She failed to state the authority from where she had procured the copy of electoral slips and admitted that she had not filed certified copies of the electoral slips. She denied the suggestion that document Mark B had been forged and fabricated in order to falsely implicate the accused. She further deposed that accused no.2 Maya Devi had stated in her service book record that her husband's name is Murari Lal. She further deposed that she had placed on record the said document along with her complaint and also placed on record an admit card of her son Banish wherein his father's Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:15 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 10 of 20 name is stated as Murari Lal. She admitted that name of the father of Banish is stated as Murari Lal only and not Murari Lal Sehgal. She also admitted that name of the husband in service book of accused No. 2 is stated as Murari Lal and not Murari Lal Sehgal. She admitted that she had not placed on record any document showing that Murari Lal is the same person as Murari Lal Sehgal. She denied the suggestion that photographs (Ex.P2) had been forged. She failed to state the name of the person who had clicked the photograph (Ex.P2). Though she had received the photograph in the year 1988 but failed to state whether she had gotten the photograph before the registration of FIR or not. She denied the suggestion that accused persons had never been married and she had filed the instant complaint only to harass them. She denied the suggestion that she was deposing falsely.
25. In order to corroborate the testimony of CW-1, her brother, Inderpal Arora, stepped into the witness box as CW-2 and deposed that on 26.03.1982, his sister/complainant Santosh Sehgal had married accused No. 1 Murari Lal Sehgal according to Hindu rites and ceremonies and later had informed him that she was being harassed on pretext of dowry by her husband and in-laws. He further deposed that considering the conduct of accused, his sister had lodged a complaint in police but after reconciliation, she had started residing with accused no.1 again but their relationship remained strained. Witness approached Local Mahila Mandal and learnt that accused no.1 had married accused no.2 Maya Devi. Witness stated that accused No. 2 was a divorcee. He further deposed that he along with other members of Mahila Mandal had gone to residence of accused No. 2 at H. No. 9, Friends Enclave, Sultanpuri Road, Nangloi in the year 1987/1988 but only accused No. 2 Maya Devi was found there who had admitted that she had married the accused no.1 but was not aware about his marital status. He further deposed that accused No. 2 had knowledge about the marriage of complainant with accused No. 1 and same was confirmed by the residents of the society in which the accused persons were residing. Marriage ceremony of accused persons was performed by Pandit Chiman Lal.
26. In his cross-examination by Ld. Defence counsel, he denied the suggestion that he did not have any documentary proof of second marriage of accused no.1 as he had only heard about the same from the local residents. He admitted that they had approached the police station and registered a complaint u/s 498A/406 IPC. He further admitted that in divorce proceedings filed by accused no.1 Murari Lal, his Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:20 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 11 of 20 sister had taken the plea of second marriage but failed to depose about the result of the divorce proceedings. Witness further failed to state the date or place of marriage between the accused persons. He denied the suggestion that accused persons had never married and have been falsely implicated in the present case.
27. Further CW-3 Prem Prakash Sharma stepped into the witness box and deposed that around 20-25 years ago, he was part of a social service group and had visited house of accused no.1 Murari Lal Sehgal at Sultanpuri Road. Brother of complainant namely, I.P. Arora had told him about second marriage of accused No. 1 as he was working in the Bank in his locality and had good relations with him. He further deposed that at house of accused no.2, they had met one Maya Devi who had told them that she was legally married to accused No. 1 and had two children out of their wedlock. He was accompanied by 4-5 persons. Witness stated the name of only two of those persons i.e. Kamla Chaudhary and Dalbir Kaur. In his cross-examination by Ld. Defence counsel, he stated that complainant is sister of I.P. Arora who was residing in Uttam Nagar. He further deposed that they did not enquire Maya Devi about date or place of her marriage with accused No. 1. He denied the suggestion that he had not met accused No. 2 and was deposing falsely at instance of complainant.
28. CW-4 Dalbir Kaur, deposed that in the year 1988, a lady namely Kamla Chaudhary, who was President or member of Mahila Morcha Sangh of Uttam Nagar, Arya Samaj Road, Delhi had called her and asked her to accompany the complainant to Nangloi in order to meet her husband who had performed a second marriage. Thereafter, 4-5 ladies and other persons went to house of accused in Nangloi. Witness failed to state the exact location/address. She further deposed that when they had reached the specific house, they had met one lady and had apprised her about first marriage of accused No. 1 but the lady told them that she was married to accused no.1. The lady was also shown the photograph of accused and two children who admitted her marriage with the accused no.1. Accused No. 1 was not found in the house. Witness identified the accused persons in the court.
29. In her cross-examination by Ld. Defence counsel, she deposed that she was not a member of Mahila Morcha Sangh but used to visit places as and when she was called by Kamla Chaudhary who was member of BJP and was looking after Mahila Wing. She further deposed that she did not ask about the details of marriage Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:26 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 12 of 20 of complainant and accused no.1. She denied the suggestion that she had not met accused No. 2 at her residence in Nangloi. She failed to recollect whether anyone by the name of Meenakshi Chopra was present but simply stated that she can recognise her by face. She further deposed that she did not ask Maya Devi regarding her marriage with accused no.1. She denied the suggestion that she was believing the hearsay version of complainant and Kamla Chaudhary and did not have any personal knowledge of the case.
30. Further, CW-5 Meenakshi Chopra stepped into the witness box and deposed that in August, 1985, complainant had filed a complaint in regard to domestic violence and dowry harassment by her husband but thereafter, matter had between them. She further deposed that in 1987, complainant had given a fresh complaint regarding harassment, ill treatment, threat to her life and extra marital affair of her husband. She further deposed that she had learnt about the lady with whom the accused had an extramarital affair and found that she was working as worker in Anganwadi and thereafter, she had contacted the CDPO of Anganwadi. She had received a letter from CDPO dated 29.07.1988 wherein the details of the lady were stated as Maya Devi R/o B23, Punjabi Basti, Nangloi. Witness further deposed that she had visited the said house but had not found Maya Devi. She spoke to the neighbours who told her that they knew marriage had taken place but they had not witnessed the same. Witness did not go inside the house. She further deposed that accused Murari Lal was found outside the house sitting at some distance. She further told that she was informed that Pandit Chiman Lal had performed the second marriage of the accused and she had contacted him but he told her that he had not performed marriage of accused No. 1 with Maya Devi but had only met them in Shankracharya Temple in Srinagar where they had introduced themselves as husband and wife. She admitted that she had stated this version after refreshing her memory from the official record. Witness brought the official record, copy of which is Ex.CW5/A(OSR). In her cross-examination by Ld. Defence counsel, she admitted that she had not conducted any inquiry regarding marriage of accused persons. She denied the suggestion that they had not found any evidence regarding marriage between accused persons. She denied the suggestion that she was deposing falsely at instance of complainant.
31. Lastly, Banish, stepped into the witness box as CW-6 and brought three documents i.e. (1) ID card of Govt. Boys Sr. Secondary School, S.P. Road, Nangloi, (2) Provisional National Trade Certificate issued by Directorate of Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:33 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 13 of 20 Training and Technical Education bearing No. 8425 and (3) statement of marks issued by University of Delhi bearing No. 424084 which are Ex.CW6/A, Ex.CW6/B and Ex.CW6/C (OSR). Witness was declared hostile by Ld. Counsel for the complainant and cross examined at length.
32. In his cross-examination by Ld. counsel for the complainant, he deposed that he repaired bags and chains by going door to door and 9650811589 was his mobile number. He was confronted with a printout of his Facebook ID with the name Banish Kapoor which was duly identified and same is Ex.CW6/DX1. Witness was also shown a printout from Magicpin.in website showing an advertisement of Maya Bag Shop bearing the aforesaid mobile number but he failed to identify the advertisement. Witness failed to have any knowledge about Maya Garments and Maya Bags. Witness deposed that he was residing at H. No. I-160, Gali No. 13, Shivram Park, Nangloi, Delhi for the last 5-6 years and the rent agreement was in his name. He was confronted with Ex.CW6/A and he stated that he had resided at H. No. 9, Street No. 2, Friends Enclave, S.K. Road, Nangloi from the year 2006 till 2012-2013. He further deposed that at the time of issuance of certificate i.e. Ex.CW6/B, he resided at Friends Enclave which was owned by his maternal grandfather. He further deposed that he used to visit the said house with his mother and there were other tenants of his maternal grandfather. Witness was confronted with Mark B wherein witness identified his photograph and voter ID card details at S. No. 87 and correctly identified the photographs and voter ID card details of his mother Maya Devi at Entry no. 85 but failed to identify the photograph at Entry No. 86. He further deposed to not have any photograph with his parents. He voluntarily deposed that his mother had told him that his father had left them when he was 3 years old. Witness further deposed that he did not have any photograph of his father and that he had no other sibling. Witness was confronted with photograph Ex.P2 and he stated that he had seen the photograph for the first time and failed to identify the people in the photograph. Witness correctly identified accused No. 2 as his mother in the court. Witness also correctly identified accused No. 1 as a tenant of his maternal grandfather. He further deposed that he had last seen accused No. 1 around 10- 12 years ago. He further deposed to be not on talking terms with his mother but rarely visited her in case of emergency or urgent work. He further deposed that he had not met accused Murari at his mother's house. He further admitted that his father's name is Murari Lal Sharma in the documents as was stated by his mother at the time of his school Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:38 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 14 of 20 admission. He admitted that he has been using Murari Lal Sharma as his father's name. Witness was also shown a photograph Ex.CW6/DX2 wherein he had identified himself and a scooty bearing No. DL3SCF 5980. He admitted that RC of the said vehicle stated his father's name as Murari Lal. He further deposed that he cannot produce any document where his father's name is stated as Murari Lal Sharma. He denied the suggestion that he was deliberately not identifying the accused No. 1 as his father. He denied the suggestion that he was deliberately not bringing any photographs or documents showing the name of accused No. 1 as his father. He denied the suggestion that he was deposing falsely. He was not cross-examined by accused persons despite opportunity. This is the entire evidence on record.
33. Ld. Counsel for complainant argued that oral and documentary evidence on record is sufficient to prove the commission of offence of bigamy beyond reasonable doubt even though no direct proof of marriage ceremony being performed by accused persons such as photographs or video-recordings have been brought by complainant and relied upon the observations made recently in case of "Pooja Sharma Bajaj vs. Ashok Bajaj and Ors., decided on 05.01.2024), wherein the Hon'ble High Court of Delhi observed that:
"..49. The aspect of burden of proof is of great importance in the practical administration of criminal justice system. The central issue in such cases is leading evidence that the accused, while being lawfully married, had performed the ceremony of marriage with another person...55. It will be a cumbersome burden on a woman to be asked to first prove every ceremony of the second marriage of the husband, even before issuing summons....57. Thus, this Court takes cognizance of the fact that the inability of one partner to prove performance of saptapadi by the other partner while marrying for the second time during subsistence of first marriage, at the stage of summoning itself, especially when the other partner may have solemnized such marriage with the third person in secrecy, should not be exploited as a clever tactic to circumvent the legal consequences of committing offence of bigamy...."
34. However, it is pertinent to note that afore-said observations were made by the Hon'ble High Court for assessing the prima facie material on record at the stage of summoning of accused persons by the court and not for final determination of Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:44 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 15 of 20 commission of offence u/s 494 IPC after conclusion of trial. Para 58 of the afore-said order is reproduced herein below:
"58. As held by the Hon'ble Apex Court, in cases involving allegations of bigamy, the Courts have to delve into the substantive issues, such as whether essential ceremonies were performed or not while marrying for the second time, only during the course of trial. The mere inability of one partner, either a wife or a husband, to prove performance of saptapadi qua the second marriage at the summoning stage should not be misused as a loophole to evade legal consequences."
35. Further, Ld. Counsel for Complainant relied upon the ocular evidence on record and argued that witnesses i.e. CWs 2, 3 ,4 and 5 have unequivocally deposed that when they had gone to house of accused no.2 in the year 1987-88, she herself had admitted her marriage to accused no.1 despite knowing about his first marriage, thereby attracting offence u/s Section 494 IPC.
36. This argument of Ld. Counsel cannot be accepted as correct.
Pertinently, all the complainant witnesses have simply deposed that they had heard about the marriage of accused persons from some other person but admittedly had not witnessed the same themselves. CW-1 stated to have heard about it from a neighbour but failed to state his name. CW-2 deposed to have heard it from CW-1. CW-3 deposed to have learnt it from CW-2. CW-4 deposed to have learnt from CW-5 who deposed to have learnt it from CW-1. But none of these witnesses had seen or witnessed any marriage ceremony between accused persons themselves. The testimony of all these witnesses is thus, clearly hearsay and inadmissible in court. {Refer: Section 60 of Indian Evidence Act, 1872}. Pertinently, complainant/CW-1 failed to disclose the source or person who had informed her about the second marriage of accused no.1 which prompted her to file the present complaint. CW-1 also stated that marriage ceremony of accused persons had been performed by one Priest Chiman Lal but the said fact was negated by CW-5 who in her testimony deposed that Priest Chiman Lal had himself admitted that he not performed any marriage ceremony of accused persons but had only met them in Shankracharya Temple. Pandit/Priest Chiman Lal never stepped into the witness to depose in this regard. Whether and when he had actually met the accused persons and how they had portrayed themselves as husband and wife remained unanswered. Additionally, CWs 2,3,4 and 5 admitted that even though they had met accused no.2 in 1987-88 who had admitted her NEETIKA Digitally signed by NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:50 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 16 of 20 marriage with accused no.1, none of them made any enquiry regarding date, time, place or nature of marriage ceremony between the accused persons. All of them merely stated that accused no.2 had admitted that she is wife of accused no.1.
37. It is argued by Ld. Counsel for complainant that from testimonies of CW-2, CW-3, CW-4 and CW-5, it is evident that they being, relative, neighbour and members of Mahila morcha/eye-witnesses respectively, had special means of knowledge about relation between accused persons and as such their testimony is relevant by virtue of Section 50 of Indian Evidence Act, 1872. However, the said argument is not tenable and deserves to rejected. Section 50 is reproduced herein below for ready reference:
"50. Opinion on relationship, when relevant. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."
38. The afore-said section is not attracted in the instant case as proviso to Section 50 makes it clear that such opinion itself shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code. Moreover, CWs 2,3, 4 and 5 have merely deposed that accused no.2 had admitted her marriage to accused no.1 in their presence but that cannot be deemed to be sufficient to form an opinion as to existence of matrimonial relationship as there is nothing on record to suggest that apart from the admission by accused no.2, CWs had any special means of knowledge to form an opinion on the marriage of accused persons. Clearly, testimonies of CWs 2,3,4 and 5 are not relevant under Section 50 of IEA. Even if testimonies of CWs 2,3,4, and 5 are deemed to be true and correct and it is believed that accused no.2 had admitted her first marriage with accused no.1 in front of them, even then the burden of proof on complainant to prove performance of essential ceremonies at the time of marriage of accused persons cannot be deemed to have been discharged and clear and cogent evidence of performance of Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:34:57 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 17 of 20 necessary ceremonies must be on record in order to satisfy the requirement of bigamous marriage u/s section 494 IPC.
39. This Court has meticulously gone through the contents of the entire complaint and the statements of the witnesses produced along with the complaint and the documentary evidence produced by the complainant to ascertain whether there is evidence in proof of the factum of the second marriage or not i.e. whether the second marriage was in fact solemnized or not and also to ascertain if it was solemnized, whether it was solemnized as per the ceremonies prevailing in the caste custom as required under Section 7 of the Hindu Marriage Act to find out whether it is a valid marriage or not. A reading of the entire record shows that it is absolutely devoid of any evidence in proof of factum of the alleged second marriage. The complainant did not at all collect evidence as to when the said second marriage between accused Nos.1 and 2 took place and where it took place and how it was performed and what is the form of marriage and what are the ceremonies that are observed in solemnizing the said marriage. There is absolutely no evidence produced by the complainant in proof of the factum of the second marriage. No evidence is produced to show that second marriage was in fact solemnized. So also no evidence was produced to show that the second marriage was solemnized by observing the essential ceremonies prevailing in the said community to hold that it was also a valid marriage like the first marriage as required under law. Evidence is totally lacking in respect of these material particulars. Therefore, this court has no hesitation to hold that there is no iota of evidence on record in proof of the factum of the second marriage and also in proof of the essential ceremonies said to have been observed in solemnization of the second marriage.
40. Apart from ocular evidence on record, complainant has relied upon documentary evidence in the form of Service Register of accused No.2, who was working as an Anganwari worker, and photocopies of Voter Electoral slips, wherein name of husband of accused no.2 and father's name of son of accused no.2 is stated as Murari Lal, however, neither the original electoral slips or service book were produced nor any witnesses from the concerned departments were examined to prove the contents of documents in the court. Though, CW-6 Banish had brought his original school certificates wherein his father's name is stated as Murari Lal, the same is not sufficient to infer that a marriage ceremony had been solemnized between accused persons. Even if, Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date:
2024.02.07 17:35:04 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 18 of 20 for sake of argument, it is assumed that accused no.1 is the father of son of accused no.2, same is not sufficient to maintain the charge under Section 494 IPC, as there should be direct evidence to show that essential ceremonies were performed at the time of alleged second marriage and a valid marriage between a man and woman cannot be presumed from the fact that a child was born out of their relationship. Unmarried man and woman may have sexual relationship and out of that a child may be born and from that it cannot be presumed that there was a valid marriage between them.
41. Apart from this, complainant also relied upon a photograph alleging the same to be of accused persons after their marriage. It is sought to be contended on behalf of the complainant that this evidence prima facie raises suspicion at least that accused No.1 married accused No.2 and committed an offence of bigamy punishable under Section 494 IPC and it is sufficient to convict accused persons for the said offence. The said contention is legally unsustainable. Now the law is very well settled that the factum of second marriage i.e. that the second marriage has in fact taken place and that it was solemnized as per the essential ceremonies prevailing in the community has to be independently proved like any other fact with acceptable legal evidence. If the factum of the second marriage between both of them is independently proved and established then this documentary evidence may be a corroborative piece of evidence to that evidence. In the absence of any independent legal evidence as proof of the factum of the second marriage, these documents in the form of Service Register of accused No.2, her Voter Id Electoral Slip and school records of son of accused no.2 by themselves cannot be a valid legal evidence in proof of factum of a second marriage.
42. Barring the afore-discussed evidence, there is absolutely no other evidence (documentary, ocular or otherwise) on record to prove that any bigamous marriage as required under Section 494 IPC was solemnized between accused Nos.1 and 2 in furtherance of their common intention. In view of the above, in opinion of this court, as such complainant has miserably failed to establish the performance of a bigamous marriage and commission of offence u/s 494 r/w 34 IPC by both accused persons beyond reasonable doubt and accordingly, this point is answered in the negative and against the complainant.
FINAL ORDER Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.02.07 17:35:11 +0530 Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 19 of 20
43. Accordingly, in view of the above discussion, since the complainant could not prove the guilt of the accused persons for commission of offences punishable under sections 494/34 IPC, beyond reasonable doubt, accused persons namely Murari Lal Sehgal and Maya Devi are acquitted of the offences punishable under Sections 494/34 IPC.
44. The accused persons have already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein they have undertaken that they shall put in his appearance before the appellate court within the prescribed period in case an appeal is filed and admitted for hearing. File be consigned to record room after due compliance.
**Announced and signed in the open court on 01st February, 2024**.
Digitally signed by NEETIKA NEETIKA KAPOOR
KAPOOR Date:
2024.02.07
17:35:17 +0530
(NEETIKA KAPOOR)
MM-06/SWD/DWARKA COURT
NEW DELHI/01.02.2024
**It is certified that this judgment contains 20 pages, and each page bears my signature** Ct. Case No. 12829/19 Santosh Sehgal vs Murari Lal Sehgal & Anr. Page 20 of 20