Bombay High Court
Smt. Indu Bhagya Natekar vs Bhagya Pandurang Natekar And Others on 18 September, 1991
Equivalent citations: 1992(1)BOMCR390, 1992CRILJ601
JUDGMENT
1. An issue of immense sociological importance has been thrown up for a decision in this appeal, which I am summarising as follows :
What is the degree and nature of proof that is required for purposes of establishing an offence under Section 494 of the Indian Penal Code; and more importantly, is it obligatory that the complainant must as of necessity prove that all necessary rites and ceremonies have been complied with in respect of the alleged second marriage ? Conversely, whether a conviction for bigamy is sustainable if there is other reliable evidence to establish the charge ?
2. The offence of bigamy, hits at the very root of the social institution of marriage and the framers of the Indian Penal Code have categorically classified it as a serious criminal offence, having regard to its deleterious fall out on the subsisting marriage. This offence is often alleged but rarely held to be proved before the Courts. While interpreting Section 494, IPC, which has been the subject-matter of many decisions of the High Courts and the Supreme Court on different facts and circumstances, the Court has to bear in mind that a party contracting a second marriage during the subsistence of the first one, is essentially put on guard by the fact that the consequences could be serious to both the persons involved in that act and invariably, therefore, keeps the marriage; particularly the defence part of it, as secret as possible. The aggrieved house is confronted with a situation of the parties living together openly professing to be husband and wife, possibly acknowledging the paternity of the children. When these facts are complained of before a Court of law in a proceeding under Section 434, I.P.C., the aggrieved house is confronted with the legal requirement of proving the factum of the second marriage and in absence of being able to do so, in the majority of prosecutions under Section 494, I.P.C., the wrong-doer is acquitted by the Criminal Courts. Section 494, I.P.C. reads as follows :
"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 in seven years, and shall also be liable to fine.
Explanation. - 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 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."
Mr. Nitin Jamdar, the learned Advocate appearing on behalf of the Appellant, in the present case, has started his address with the submission that the interpretation of Section 494, I.P.C. and its application by the Courts should not result in the Section becoming redundant but that, for very valid reasons, a constructive and healthy interpretation and realistic and practical one be put to it so that the genuinely aggrieved spouse can ensure that the wrong-doer is punished by the Criminal Courts.
3. I shall briefly recount the facts that have given rise to this appeal. The Appellant-Wife Smt. Indu Bhagya Natekar filed a Criminal Complaint, being Criminal Case No. 2531 of 1978 in the Court of the Chief Judicial Magistrate, Thane, against her husband Bhagya Pandurang and the husband's cousin Ganpat Sharma Natekar alleging that during the subsistence of her marriage with the husband, he had contracted a second marriage with one Manjula Narayan Kadam on 15-11-1978. The Complainant - wife relied on the marriage certificate issued by the Registrar of Marriages at Thane dated 21-11-1978, which is Exhibit No. 24 of the record, and which indicates that the Accused No. 2 was a witness to the marriage and to this extent she contended that he was an abettor to the offence and was liable to be punished under Section 494 read with Section 114 of the Indian Penal Code. The learned Judicial Magistrate, P.C., Thane, after considering the evidence on record, convicted both the accused and sentenced each of them to suffer rigorous imprisonment for two years and to pay a fine of Rs. 250/-, in default to suffer further R.I. for one month.
4. In view of the importance of this case, I shall briefly recount the prosecution averments. The Complainant Indubai has stated that she was married to the Accused No. 1 at Bombay in the year 1968 according to Hindu rites and ceremonies. She states that she cohabited with the Accused No. 1 as his wife for a number of years and that she has a son by the Accused No. 1, whom she is looking after. She alleges that accused No. 1, who is a fisherman, was addicted to drinking, that he was given to using violence against her, and that not only did he not support her and the child at the time, but furthermore he was in the habit of assaulting her without any provocation and that on one occasion he threw a large stone on her, whereby she sustained in injury of a serious nature. She was required over the years to lodge several police complaints against the accused No. 1, who ultimately drover her out of the house and she started residing in another chawl. It is her case that the accused followed her to that part of Kalyan where she resided separately, that he used to beat her and take money from her and consequently after 2 1/2 years she went to reside in Ulhasnagar with her mother. She alleges that the accused traced her out thers also and once again started threatening and assulting her and demanding money from her, as a result of which, she was required to file complaints with the police authorities in that town. She further alleges that in view of the fact that the accused No. 1 never supported her or the child, she was required to file maintenance application No. 40 of 1977 in the Court of the Judicial Magistrate, P.C., Ulhasnagar, which proceeding was decided in her favour. Amongst the documents relied upon by the complainant is the reply filed in some other proceeding by the accused wherein he has admitted the marriage of the complainant and the birth of the male child Jitendra from the wedlock.
5. In Support of the charge under Section 494, I.P.C., the complainant produced the Marriage Certificate dated 21-11-1978, which is a public document issued by the Registrar of Marriages, Thana, which indicates that the accused No. 1 went through a ceremony of marriage, which was conducted by one Sirish Madhukar Joshi, who was the priest who officiated over the ceremony and who has also signed the application for registration of marriage. It is obvious that the accused No. 1 was aware of the fact that this second marriage could not have been registered if the subsistence of the earlier first marriage was known to the authorities and, therefore, he has given his status in the application as that of a divorcee. Since the document was a public document and was admitted in evidence without the formality of summoning a witness in that behalf from that office, we do not know as to whether any evidence was produced in support of the statement that the accused No. 1 was a divorcee or whether the authorities concerned overlooked this fact. The learned trial Magistrate, in a well-considered judgment, held that the document Exhibit No. 24 coupled with the evidence of the Complainant, which had virtually gone uncontroverted in the proceedings, by virtue of the fact that there was hardly any cross-examination on the point, was sufficient, in his opinion, to hold that an offence under Section 494, I.P.C. was established and he accordingly convicted the accused No. 1. As far as accused No. 2 was concerned, the learned Magistrate held that since he was a relation of the accused No. 1 and was also present at the time when the marriage took place as a witness, that he was liable to be convicted under Section 494 read with Section 114 of the I.P.C.
6. Against the order of conviction and sentence passed by the learned Judicial Magistrate, P.C., Thane, in the Criminal Case No. 25312 of 1978, both the accused filed Criminal Appeal No. 77 of 1982 and the learned V Additional Sessions Judge, Thane, by his judgment and order dated 20th April, 1983 set aside the conviction of accused No. 1 on the ground that the law on the point as has been interpreted by the Supreme Court and also by this Court required strict proof of the second marriage and consequently more production of the marriage certificate was insufficient in the circumstances of the case because the priest who is alleged to have performed the marriage was not examined as a witness. The Appeal Court took note of one curious factor viz. that the alleged second marriage had not taken place before the Registrar, but that it was only an application for registration which had been filed and, therefore, some distinction would have to be drawn between a case where the marriage was performed before that authority and the one where the marriage was performed elsewhere. In the present case, since the marriage had taken place on 15-11-1978 and it is only a mere application for registration, the learned Additional Sessions Judge held that the factum of the second marriage was not established and, therefore, set aside the conviction. It is against this judgment and order of the learned Additional Sessions Judge that the present appeal has been filed.
7. Mr. Jamdar, the learned counsel appearing on behalf of the Appellant, strenuously urged that as a matter of public importance the issue involved in this case must be duly analysed and decided. It is true that the appellant is an extremely poor woman who has gone through a hellish experience which alone has impelled her to persist with the litigation and come up to this Court. All credit, therefore, goes to Mr. Jamdar, who regardless of the obvious fact that this is a social cause, has handled this matter with a high degree of industry and persistence which is often times looking from the bar even in wellpaid briefs. It is often times through the effort of the humblest of litigants that an issue of importance comes to be decided. Mr. Jamdar pointed out that the decision of the Supreme Court is being misunderstood to mean that in every case of bigamy, unless the second marriage can be proved by bringing in the evidence of the performance of the ceremonies itself, that a conviction under Section 494, I.P.C. is virtually impossible. He further submitted that the judgment of the Supreme Court in the case of Bhaurao Shankar Lokhande v. The State of Maharashtra, , which has been followed in several subsequent decisions and is regarded as the leading case on the point is invariably interpreted to hold that no conviction under Section 494, I.P.C. would be possible unless it is established that the second marriage is one that would have been valid in all respects but for the existence of the first marriage. He submitted that on the said facts of the present case, which are not so pathetic as they are atrocious, a Court cannot confront the aggrieved wife with an obstacle that she has not established the charge in spite of the proof of the present type as is adduced in this case and, secondly, in the present case, it will have to be held that the trial Court was right and that order ought to be confirmed.
8. Mr. Jamdar, initially, referred to the aforesaid judgment of the Supreme Court and sought to distinguish it by pointing out that the validity or otherwise of the second marriage was the only issue in these proceedings. However, in the decided case, the Supreme Court has held that the second marriage had been performed in the Gandharva form and that it did not constitute an offence under Section 494, I.P.C. The Supreme Court held that the second marriage that is complained of must have been solemnised through all the valid marriage ceremonies and having regard to the provisions of Hindu Law where it is found that the necessary ingredients of a valid Hindu marriage viz. 'Homa' and 'Sapta-padi' had not been performed, the ceremony in the Gandharva form could not be regarded as a valid marriage and in that view, acquitted the accused. Mr. Jamdar is justified in his submission that the aforesaid decision will not apply to the facts of the present case and that it is clearly distinguishable. In the present case, the fact that a marriage ceremony took place on 15-11-1978 is not at all in dispute and, in fact, the accused No. 1 has voluntarily applied for registration under Section 8 of the Hindu Marriage Act to the Registrar of Marriage at Thane, wherein the factum of this marriage has been mentioned and thereby confirmed. He has also given the name of the priest who performed the marriage and he, therefore, had no ground whatsoever to call the ceremony into question nor could the Court have disputed its validity. The learned Additional Sessions Judge was, therefore, in error in having raised the doubt with regard to the validity of this ceremony when, in fact, the position in law is exactly the opposite.
9. In support of his submission that the ceremony performed on 15-11-1958 must be taken to be a valid one, in the absence of any challenge to it and presumed to be so, Mr. Jamdar followed up his agreement by citing a judgment of the Orissa High Court in the case of Linga Malik v. Ajedhya Mallikani, .The High Court, in that case, referred to the presumption that arises under Section 114 and Section 101 of the Evidence Act and held that where there is proof of a marriage having taken place, a presumption that all legal formalities are complied with, necessarily follows and that the burden to prove to the contrary is on the one challenging the validity of the marriage. This view has been called out from an old decision of the Privy Council in Mouji lal v. Chandrabai Kumari, (1911) ILR 38 Cal 700 (PC), where it was held that where a ceremony of marriage undoubtedly took place, the strong presumption in favour of the marriage applies to the forms and the ceremonies necessary to constitute it a valid marriage. Admittedly, the marriage certificate has established the ceremony of the marriage having taken place on 15-11-1978 and its registration on 21-11-1978 and it has not been called into question in the present proceedings. It was, therefore, impermissible for the Appellate Court to have disputed this fact and thereafter to have applied the ratio of the Supreme Court judgment to the facts of the present case.
10. The Appeal Court has placed considerable reliance on the judgment of the Supreme Court in the case of Kanwal Ram v. The Himachal Pradesh Administration, , which judgment has been thereafter reiterated in the case of Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, reported in AIR 1971 SC 1153 : (1971 Cri LJ 939), wherein the Court held that admissions or acknowledgments of a marriage would not be sufficient proof for the purpose of a conviction under Section 494, I.P.C. All these judgments are distinguishable because we are not concerned here with a case of acknowledgment or a case of admissions, but we are concerned with a tangible piece of evidence viz. the marriage certificate from the Registrar of Marriages, who is the competent authority, which in turn endorses the fact that the second marriage did take place before a priest on 15-11-1973, in respect of which marriage, as indicated earlier, a legal presumption arises. The learned Additional Sessions Judge has also relied on the decision of this Court in the case of Chhababai, w/o Chindu Patil v. Chindu Shankar Patil, , wherein Pendse, J. has reiterated the position as enunciated in Bhaurao Shankar Lokhande v. The State of Maharashtra, , namely, that in the case of a Hindu marriage, the valid ingredients of the same must be established and that mere oral evidence will not be sufficient. In the present case, it is not the oral evidence alone that is relied upon and, therefore, it is distinguishable. Suffice it to say that even the oral evidence of the Appellant wife has not been seriously challenged.
11. Section 494, I.P.C. was placed on the statute book for purpose of punishing a spouse who violates the sanctity of a marriage contract by attempting to fraudulently substitute it by another to the prejudice of the aggrieved spouse. In applying this Section, a Court will, therefore, have to adopt an approach of practicability in so far as evidence, direct, oral or circumstantial which can prove the charge will have to be good enough, and this does mean only evidence of the actual solemnisation of the marriage in keeping with religious rites and ceremonies. Neither the Supreme Court nor the High Courts had circumscribed the mode of proof in these cases.
12. It is a common ground that the first marriage, as indicated by me earlier, between the complainant and accused No. 1 had taken place in the year 1968 and that there is no dispute with regard to its validity nor is there any dispute with regard to its subsistence. Under these circumstances, the accused No. 1, in so far as he has gone through a ceremony of marriage on 15-11-1978 during the subsistence of the first valid marriage and during the lifetime of the Complainant, has clearly committed an offence under Section 494, I.P.C. and is liable to be convicted for the same. As far as the accused No. 2 is concerned, undoubtedly he is a relation of the accused No. 1 and he is also a witness to the second marriage, but it is necessary for a Court of law to take note of the fact that beyond these two circumstances, there is nothing alleged against him. To my mind, it is necessary in a serious case of the present type, that before passing an order of conviction for abatement, it must be considered whether the accused No. 2 was instrumental in getting the accused No. 1 to commit the offence and above everything else, that the evidence indicates that he was aware of the subsistence of the first marriage. This last ingredient has not been established and consequently the conviction of the accused No. 2 has rightly been set aside by the Appellate Court.
13. The Accused No. 1 has been duly served with the notice of this proceeding, but he has not been represented before me. Under these circumstances, this Court is left with no option except to confirm the conviction and sentence imposed on him by the trial Court.
14. The Appeal is accordingly allowed. The conviction and sentence of the respondent No. 1 (Original Accused No. 1) imposed on him by the trial Court is confirmed. The judgment and order of the Appeal Court setting aside the conviction and sentence of the trial Court as against the Original Accused No. 1 set aside. The trial bonds of both the respondents to stand cancelled.
15. Before parting with this judgment, I would like to observe that undoubtedly the parties to these proceedings come from a very poor strata of society and it is, therefore, very creditable that the learned counsel appearing in this case viz. Shri Nitin Jamdar, Shri S. M. Dange and Mr. K. H. Chopde, Assistant Public Prosecutor, have put in considerable research and have admirably assisted the Court in dealing with the rather complicated though important point of law involved.
16. Order accordingly.