Rajasthan High Court - Jodhpur
Vaishakha vs State Of Rajasthan (2023:Rj-Jd:31338) on 22 September, 2023
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2023:RJ-JD:31338]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 149/2019
Vaishakha D/o Sh. Hari Ram, Aged About 22 Years, B/c
Bhookhar Jat, Chak 3 A, Suthar Colony, Teke Wali Gali, Sri
Ganganagar.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Monika @ Mohini W/o Sh. Dharamveer, B/c Jat, Kheru
Wala , Tehsil Sardulshahar, Distt. Sri Ganganagar
----Respondents
For Petitioner(s) : Mr. Umesh Kant Vyas
For Respondent(s) : Ms. Anita - PP
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order REPORTABLE 22/09/2023
1. The present criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner against the order dated 23.08.2018 passed by learned Additional Sessions Judge No.1, Sri Ganganagar (hereinafter referred to as 'revisional court') in Cr. Revision No.116/2017, whereby, learned revisional court dismissed the revision petition filed by the petitioner against the order dated 02.02.2016 passed by the learned Additional Chief Judicial Magistrate, Sadulshahar, District Sri Ganganagar (hereinafter referred to as 'trial court') in Cr. Case No.81A/2016, whereby, learned trial court took cognizance against the petitioner for the offences under Sections 494 and 120-B IPC.
2. Brief facts of the case are that a complaint was filed by respondent No.2 - Monika @ Mohini on 16.01.2014 stating therein (Downloaded on 12/11/2023 at 06:29:07 AM) [2023:RJ-JD:31338] (2 of 11) [CRLMP-149/2019] that on 04.04.2002 she got married to Dharamveer with Hindu rites and rituals. After marriage respondent No.2 went to her in- law's house at Kishanpura. Out of the said wedlock she gave birth to a daughter Shagun. Accused Dharamveer, Rameshwari Devi and their family members (in-laws) treated the respondent No.2 with cruelty for dowry and in the year 2011 she was thrown out of the house. After some time father of respondent No.2 came to know that accused Dharamveer got married to Vaishakha petitioner herein.
3. A complaint was filed before the trial court. After recording the statement of respondent No.2 under Section 200 Cr.P.C., the complaint under Section 202 Cr.P.C. was sent for investigation to the concerned Police Station, Sadulshehar. After investigation a report was submitted.
4. The trial court after taking into consideration the statements of witnesses and perusing the investigating report observed that prima facie it is established that accused Dharamveer got married to Viashakha and by the impugned order dated 02.02.2016 took cognizance against accused Dharamveer, Vaishakha and Hariram under Sections 494 & 120(B) I.P.C. and summons were issued.
5. Aggrieved against the said order dated 02.02.2016 passed by the trial court a criminal revision under Section 397 Cr.P.C. was filed by Vaishakha before the revisional court.
6. The revisional court by the impugned order dated 23.08.2018 dismissed the criminal revision.
7. Learned counsel for the petitioner would submit that the complainant has to prove that the second marriage has in fact taken place and the said factum of the second marriage has to be (Downloaded on 12/11/2023 at 06:29:07 AM) [2023:RJ-JD:31338] (3 of 11) [CRLMP-149/2019] proved like any other fact with acceptable legal evidence. He contends that there is absolutely no evidence to prove the factum of the second marriage and also that the said second marriage was solemnized by observing all the essential ceremonies of a valid marriage. He then contends that the evidence recorded by the Presiding Officer is not valid evidence in proof of the factum of the second marriage or that the marriage was performed with essential ceremonies required to establish a valid marriage as required under Section 494 IPC to prove the offence of bigamy. He also contends that the contents of the complaint do not disclose as to when the marriage took place, where the marriage took place and in what form the said marriage took place and what are the essential ceremonies that were observed at the time of the alleged second marriage. He submits that there is no evidence at all in proof of the factum of the second marriage. Therefore, there is absolutely no legal evidence on record to establish that any offence punishable under Section 494 IPC was committed by the revision petitioner. So, there was no authenticated material before the trial court to take cognizance under Section 494 IPC against the accused petitioner. Hence the impugned order of the revisional court as well as the order of cognizance by the learned trial court are not sustainable.
8. Before adverting to the same, it is apt to consider Section 5 of the Hindu Marriage Act, which contains essential conditions of a Hindu marriage, Section 7 which deals with ceremonies of a Hindu marriage and Section 17 which makes a marriage between two Hindus solemnized is void if at the date of such marriage either party had a husband or wife living and making the said second (Downloaded on 12/11/2023 at 06:29:07 AM) [2023:RJ-JD:31338] (4 of 11) [CRLMP-149/2019] marriage an offence of bigamy punishable under Section 494 IPC.
9. As per Section 5 of the Hindu Marriage Act, a marriage may be solemnized between any two Hindus, if the conditions laid down in the said Section are fulfilled. Five conditions are enumerated therein to make a marriage between two Hindus a valid marriage. We are only concerned with the first condition which is relevant in the present context relating to a bigamous marriage. The first condition reads as follows:-
"Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) Neither party has a spouse living at the time of the marriage;
(ii)...
(iii)...
(iv)...
(v)...."
10. Therefore, it is evident that if a party to the marriage has a spouse living at the time of marriage, the said marriage cannot be held to be a valid marriage. Section 5 has to be read with Section
17. Section 17 says that any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or a wife living. So, the second marriage performed or solemnized while the party to the said marriage had a husband or a wife living at that time, would not only be void under Section 17 of the Hindu Marriage Act but also attracts the provisions of Sections 494 and 495 IPC punishable for commission of the offence of bigamy. Section 7 deals with ceremonies to be observed at the time of solemnization of a Hindu marriage. It says that a Hindu marriage may be solemnized following the customary rites and ceremonies of either party thereto and clause (2) thereof says that where such rites (Downloaded on 12/11/2023 at 06:29:07 AM) [2023:RJ-JD:31338] (5 of 11) [CRLMP-149/2019] and ceremonies include the Saptapadi, the marriage becomes complete and binding when the 7th step is taken. This Section 7 assumes significance in the context which says that a Hindu marriage is to be solemnized in accordance with the customary rites and ceremonies of either party thereto. So, for a Hindu marriage to be valid has to be solemnized in accordance with the customary rites and ceremonies of either party thereto. As per the settled law, even to prove a second marriage between two Hindus to prosecute them for the offence of bigamy punishable under Section 494 IPC, it shall be proved that the second marriage is also solemnized in accordance with the customary rites and ceremonies of either party thereto. In other words, both the marriages i.e. the first marriage and the second marriage must be valid marriages and must be proved that the second marriage was also performed or solemnized following the customary rites and ceremonies.
11. A three-Judges Bench of Hon'ble Supreme Court in the case of Bhaurao Shankar Lokhande v. State of Maharashtra : 1965 AIR 1564, 1965 SCR (2) 837 held that the marriage between two Hindus is void in view of Section 17 if two conditions are satisfied:
(i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. It is further 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 (Downloaded on 12/11/2023 at 06:29:07 AM) [2023:RJ-JD:31338] (6 of 11) [CRLMP-149/2019] 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 intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom. It is further held at para.5 of the said judgment as follows:-
"We are of the opinion that unless the marriage which took place between appellant No. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been 'solemnized' and therefore appellant No.1 cannot be held to have committed the offence under Section 494 IPC."
12. At para.12 of the said judgment it is held as follows:-
"We are therefore of the opinion that the prosecution has failed to establish that the marriage between appellant No.1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by Section 7 of the Act. It was certainly not performed "in accordance with the essential requirements for a valid marriage under Hindu law. It follows therefore that the marriage between appellant No.1 and Kamlabai does not come within the expression "solemnized marriage" occurring in Section 17 of the Act and consequently does not come within the mischief of Section 494 IPC even though the first wife of appellant No.1 was living when he married Kamlabai in February 1962."
13. In the case of A. Subash Babu v. State of A.P. : Criminal Appeal No. 1428/2011 Hon'ble Supreme Court held that to prove an offence of bigamy punishable under Section 494 IPC, it is essential to prove that the second marriage was performed while observing all essential ceremonies of marriage.
14. In the case of Gopal Lal v. State of Rajasthan : 1979 AIR 713 Hon'ble Supreme Court again opined that in order to bring out the provisions of Section 494 IPC, both the marriages of the accused (Downloaded on 12/11/2023 at 06:29:07 AM) [2023:RJ-JD:31338] (7 of 11) [CRLMP-149/2019] must be valid in the significance that the necessary ceremonies required by the personal law must have been duly performed. Hon'ble Apex Court further held that the essential ingredients of the offence under Section 494 IPC are (i) that the accused spouse must have contracted the first marriage; (ii) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage; and (iii) that the second marriage was valid one in the sense that necessary ceremonies required by law or by custom had been actually performed.
15. 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.
16. 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 lifetime 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. Therefore, it is to be now ascertained from the evidence that was examined by the trial court and collected by the Enquiry Officer under Section 202 Cr.P.C. whether there is any (Downloaded on 12/11/2023 at 06:29:07 AM) [2023:RJ-JD:31338] (8 of 11) [CRLMP-149/2019] prima facie evidence to establish the factum of the second marriage i.e. that the second marriage has 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.
17. This Court has meticulously gone through the contents of the complaint as well as the statements of the witnesses AW-1 Vijay, and AW-2 Ramkrishna and the statements of the witnesses recorded under the enquiry of Section 202 Cr.P.C. to ascertain whether there is evidence in proof of the factum of the second marriage or not i.e. whether the second marriage was 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.
18. A reading of the complaint shows that it is devoid of any evidence in proof of factum of the alleged second marriage. The complainant did not aver as to when the said second marriage between petitioner and Dharamveer took place and where it took place and how it was performed and what is the form of marriage and what were the ceremonies observed in solemnizing the said marriage. Since these are the essential requirements and ingredients required to prove an offence of bigamy punishable under Section 494 IPC, as per the law laid down by Hon'ble Apex Court in the above-cited judgments, the complainant has to invariably establish the said facts and place prima facie evidence to establish the same even for the purpose of taking cognizance to (Downloaded on 12/11/2023 at 06:29:07 AM) [2023:RJ-JD:31338] (9 of 11) [CRLMP-149/2019] that effect against the accused to try them for the said offence. There is absolutely no evidence on the record to prima facia indicate the factum of the second marriage. No evidence is produced to show that the 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 prima facie evidence much less an 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.
19. The three-Judge Bench judgment of Hon'ble Apex Court in Kanwal Ram v. Himachal Pradesh Administration : 1966 AIR 614, 1966 SCR (1) 539 held at para.7 of the judgment as follows:-
"......Now the statement admitting the second marriage by these persons is certainly not evidence of 'the marriage so far as Kanwal Ram and Seesia are concerned; they did not make it. Nor do we think, it is evidence of the marriage even against Kubja....."
20. It is further held:-
"....Secondly, 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..."
21. In fact, Section 50 of the Evidence Act reads as under:-
"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:(Downloaded on 12/11/2023 at 06:29:07 AM)
[2023:RJ-JD:31338] (10 of 11) [CRLMP-149/2019] Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."
22. The aforesaid Section demonstrates that an opinion as to the relationship of one person to another, 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.
23. Therefore, the evidence of AW-1 Vijay, AW-2 Ramkrishna AW-3 Vedprakash and AW-4 Monica and the statements of witnesses recorded in the enquiry conducted under Section 202 Cr.P.C, namely Rameshwari Devi, Dharmpal, Rameshwar, Dayalo Saiyed Ali Munshaf Ali are clearly inadmissible in evidence in proof of the factum of the second marriage between petitioner and accused Dharmveer as per the proviso to Section 50 of the Evidence Act.
24. There is definitely no other satisfactory legal evidence on record to prove that any bigamous marriage as required under Section 494 IPC and Section 17 of the Hindu Marriage Act was solemnized between the petitioner and the other summoned accused Dharmveer.
25. It is already noticed supra that for the limited purpose of ascertaining whether there is sufficient ground to proceed against the accused to try the accused for the offence, the Court can weigh and sift the evidence and if the evidence relied on by the complainant is weighed and sifted for the said limited purpose, as discussed supra, the said evidence is not sufficient to hold that there is sufficient ground to proceed against the petitioner. (Downloaded on 12/11/2023 at 06:29:07 AM)
[2023:RJ-JD:31338] (11 of 11) [CRLMP-149/2019] The learned trial court and so also the revisional court did not consider the factual aspect in terms of the essential elements ingrained under Section 494 IPC for initiating the criminal proceedings against the petitioner and other summoned accused.
26. Corollary to the above, the criminal miscellaneous petition is allowed and the impugned order dated 23.08.2018 passed by the revisional Court is set aside and further, the proceedings initiated by the trial court vide order dated 02.02.2016 against the present petitioner as well as the other accused are quashed.
(PRAVEER BHATNAGAR),J AK Chouhan/-
(Downloaded on 12/11/2023 at 06:29:07 AM) Powered by TCPDF (www.tcpdf.org)