Andhra HC (Pre-Telangana)
Smt. Natari Parvati vs State Of A.P. And Ors. on 22 August, 2003
Equivalent citations: 2003(2)ALD(CRI)731, I(2004)DMC237
Author: K.C. Bhanu
Bench: K.C. Bhanu
JUDGMENT K.C. Bhanu, J.
1. This criminal appeal is directed against the order of acquittal in C.C. No. 365 of 1995 on the file of the Judicial Magistrate of First Class, Gudur.
2. The brief facts that are necessary for disposal of the present case are as follows : The marriage of Paravathi with A-1 took place about 11 years prior to 13.5.1995 at Kodandaramaswamy Temple at Gudur according to Hindu customs. Three years after the marriage, Parvathi gave birth to a female child and the child died subsequently. After the death of the child, A-1 started harassing P.W. 1 as she did not beget further children and started ill-treating her that he would marry second time. A-1 also compelled P.W.1 to sign on papers and to give consent for the second marriage. But P.W. 1 refused to do so. Subsequently, A-1 started ill-treating her demanding to get 25,000/- as additional dowry from her father. Her father did not pay the amount. Subsequently, A-1 married A-2, who is the daughter of A-4 and A-5. A-3 is the brother of A-4, A-6 is the mother of A-4 and A-5, and A-7 is the cousin of A-5. On coming to know about the second marriage, P.W.1 lodged a complaint with the police. The police registered the case and after investigation filed charge sheet against the accused. Basing on the material on record charges have been framed against the accused under Sections 498-A, 494 read with Section 109, IPC. They pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 6 were examined and Exhibits P-1 to P-6 were marked. On behalf of the accused, no witnesses were examined but Ex. D-1 was marked. The lower Court after considering the evidence on record came to the conclusion that the prosecution has failed to prove the cruelty as defined under Section 498-A, IPC against P.W.1 and the prosecution has also failed to prove second marriage between A-1 and A-2 and, accordingly, acquitted the accused. Aggrieved by the same, the present appeal is filed by the appellant questioning the legality and correctness of the judgment.
3. The learned Counsel appearing for the appellant contends that the evidence of P.Ws. 1 and 2 would go to show that A-1 demanded additional dowry of Rs. 25,000/- and demanding of additional dowry is cruelty within the meaning of Section 498-A, IPC. There was no reason for P.W. 1 to implicate her husband falsely and that minor discrepancy would occur even in the case of only truthful witness and if the evidence of P.Ws. 1 and 2 is accepted certainly the offence under Section 498-A, IPC is made out against the accused. She further contends that during the subsistence of the first marriage, A-1 married A-2 second time and if the evidence of P.Ws. 4 and 5 is accepted the marriage of A-1 with A-2 is proved. As the first marriage of A-1 with P.W.1 is still subsisting. The offence under Section 494, IPC is made out against the A-1 and A-2 because they married knowing fully well that the first marriage was subsisting and, therefore, they are liable for punishment.
4. On the other hand, it is vehemently contended by the learned Counsel appearing for the respondents that except the evidence of interested witnesses, there is no other evidence to show that A-1 demanded additional dowry of Rs. 25,000/- and that the father of P.W. 1 had no capacity to lend any amount and, therefore, the question of A-1 demanding additional dowry does not arise. The evidence of P.Ws. 1 and 2 with regard to demand of dowry is inconsistent and that is the reason why the lower Court disbelieved their evidence and the offence under Section 498-A, IPC is not made out. He further contended that the essential ceremonies of "Saptapathi" and "Dattahoma" were not proved for the second marriage and the burden is on P.W.1 to prove the second marriage of A-1 with A-2. He further contends that P.Ws. 4 and 5 were planted witnesses for the purpose of this case, as their names did not find place in the charge-sheet as witnesses to the second marriage and, therefore, the lower Court after considering the evidence on record came to the right conclusion in acquitting the accused. Hence, he sought for dismissal of the appeal.
5. The term "cruelty" has been defined in Explanation (a) to Section 498-A, IPC. Explanation (a) provides that 'cruelty' means any wilful conduct, which is of such a nature as, is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. Hence, under Clause (a) cruelty means any wilful conduct, which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.
6. As seen from the evidence of P.Ws. 1 and 2 the cruelty is not such as is likely to drive P.W.1 to commit suicide. It is not the case of P.W. 1 that she was being beaten by A-1 or caused grave injury or danger to life, limb or health. Coming to Clause (b) of the Explanation, it provides that "cruelty" means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Hence, it is clear that where the harassment is caused with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security, it is punishable under Section 498-A, IPC. The evidence of P.Ws.1 and 2 is that A-1 started demanding P.W. 1 to bring Rs. 25,000/- towards additional dowry. The marriage of A-1 with P.W.1 took place on 7.9.1984. According to P.W. 1, A-1 left her company on 10.5.1995. Nearly for about ten years they lived together and three years after the marriage P.W. 1 begot a female child. But the child died subsequently. P.W.1 did not specifically state as to when or on what date or in which year A-1 started demanding her to get Rs. 25,000/- from her father towards additional dowry. But in the cross-examination, she admitted that one week prior to 11.5.1995, A-1 demanded her to get Rs. 25,000/- by way of dowry or loan from her father. Whereas P.W. 2 has stated in the cross-examination that five or six years after the marriage, A-1 demanded extra money of Rs. 25,000/- from his father. P.W. 2 who is no other than the brother of P.W.1 was unaware of the A-1 demanding money from P.W. 1. But he says that when his father expressed his inability, P.W. 1 requested him to arrange the money. But it is not the case of P.W.1 that she requested P.W. 2 to arrange the money. The earliest version as seen from Ex. P-1 is that A-1 was harassing P.W. 1 to bring Rs. 25,000/- even one and half years prior to giving of the report. Therefore, at what point of time A-1 started harassing P.W.1 to bring Rs. 25,000/- is not known. It varies from witness to witness and also from Ex. P-1. Admittedly, the father of P.W. 1 is not so affluent person to arrange Rs. 25,000/-. Apart from the profession the father of P.W. 1 has no other affordable source of income. He was having 4.56 cents of land, which was leased out, and he has got three more daughters and three sons. In those circumstances, having lived for the years without any ill-feelings or misunderstandings, it is highly unnatural to believe that A-1 started demanding additional dowry of Rs. 25,000/- just one week prior to 11.5.1995. If really the harassment had been there more than two years back or immediately after the death of the first child, then P.W. 1 would have been compelled to complain of such harassment long back to her father or brother. Hence, the theory of demanding of additional dowry appears to have been invented for the first time at the time of giving the report i.e. on 13.5.1995. In these circumstances, it is highly unsafe to place reliance on the evidence of P.Ws. 1 and 2. Hence, the lower Court after appreciating the evidence came to the right conslusion in acquitting the accused for the offence under Section 498-A, IPC.
Coming to the charge under Section 494, IPC, the essential ingredients of the offence are : (1) the accused must have contracted the first marriage, (2) while the first marriage was subsisting, the accused must have contracted the second marriage, and (3) both the marriages must be valid in the sense of necessary ceremonies governing the parties must have been performed. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi i.e., the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. In this case there was no evidence with regard to the customary rites and ceremonies to be performed at the time of the second marriage, P.Ws. 1 and 2 were not witnesses to the second marriage. The examined P.Ws. 4 and 5 as witnesses present at the time of the second marriage.
8. According to P.W. 4, the marriage of A-1 and A-2 was performed at the house of A-3 and at that time "Bajanthries" were played and "Manthras" were chanted by one Pujari and A-1 tied "Tali" around the neck of A-2 and he witnessed the marriage of A-1 and A-2. P.W. 5 also stated similarly. Originally these two witnesses were not cited as witnesses for the second marriage. They were not examined by the police, though the case was registered on 13.5.1995 and after completion of investigation charge-sheet was filed on 30.10.1995. For the first time on 5.1.1999 the police filed a petition under Section 311, Cr.P.C, to issue summons to P.Ws. 4 and 5. That was allowed on 17.3.1999. So, after lapse of nearly five years these two witnesses were examined. Therefore, the evidence of P.Ws. 4 and 5 has to be viewed with suspicion, as their names were brought into existence at a belated stage. Even according to them, they informed about the second marriage of A-1 with A-2 one month after the same to P.W. 2. According to P.W.4, he after witnessing the marriage did not inform to anybody and he went to his in-laws' house at Giddalur. One month thereafter he returned to Nellatur and informed about the second marriage of A-1 to P.W. 2. P.W. 5 also stated that after the marriage he left to Thiruvella of Buchireddipalem where his sister was staying. He also stated that after one month he returned to the village and he informed the same to P.W. 2. Both the witnesses went away and they were not present in the village. But their evidence is quite contrary to the evidence of P.W. 2 to whom they claim to have informed about the second marriage. According to P.W. 2, both the persons came and informed him at about 10.00 a.m. on 10.5.1995 about the taking place of marriage between A-1 and A-2. For the first time P.W.2 stated in his evidence in the Court that P.Ws. 4 and 5 informed him about the second marriage, P.W. 6 admitted that P.W. 2 did not state before him that Seenaiah P.W. 4 witnessed the second marriage. Therefore, the presence of P.Ws. 4 and 5 at the time of the alleged second marriage created any amount of doubt. P.W. 3 is the photographer, who has taken the photograph of A-1 and A-2 under Exs. P-2 to P-5. They did not prima facie reveal about the performance of the marriage between A-1 and A-2.
9. Even assuming for a moment that the marriage of A-1 with A-2 was performed as stated by P.Ws. 4 and 5, can it be said that it is a valid marriage? On this aspect, it is pertinent to refer the decision reported in Kanwal Ram and Ors. v. H.P. Administration, , wherein it is held that in bigamy case, the second marriage is to be proved and the essential ceremony required for a valid marriage should have been performed.
10. The question as to whether "Saptapadi" is an essential ritual to be performed came up for consideration in the decision reported in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, , wherein it was held that the second marriage should be a valid one according to the law applicable to the parties. In that case, there was no evidence regarding the performance of the essential ceremonies, namely, "Dattahoma" and "Saptapadi". In Lingari Obulamma v. L. Venkata Reddy, , the Andhra Pradesh High Court held that two essential ceremonies of a valid marriage, namely, "Dattahoma" and "Saptapadi" were not performed and, therefore, the marriage was void in the eye of law. This finding was upheld by the Supreme Court. The appellant therein contended that among the "Reddy" community in Andhra Pradesh, there was no such custom of performing "Dattahoma" and "Saptapadi", but the High Court held that under the Hindu Law these two ceremonies were essential to constitute a valid marriage and rejected the plea of the appellant on the ground that there was no evidence to prove that any of these two ceremonies has been performed. So much so, the finding of the High Court was upheld by the Apex Court that there was no evidence to prove a second valid marriage. In Santi Deb Berma v. Kanchan Prava Devi, 1991 Supp. (2) SCC 615, also the appellant therein was acquitted by the Apex Court as there was no proof of a valid marriage as the ceremonial "Saptapadi" was not performed. Another decision on this point is Laxmi Devi v. Satya Narayan and Ors., I (1995) DMC 298 (SC)=1994 (5) SCC 515, wherein the Apex Court held that there was no proof that "Saptapadi" was performed and, therefore, there was no valid second marriage and that no offence of bigamy was committed. In the aforesaid decisions rendered by the Apex Court, it has been held that if the parties to the second marriage perform traditional Hindu form of marriage, "Saptapadi" and "Dattahoma" are essential ceremonies and without there being these two ceremonies, there would not be a valid marriage. There was absolutely no evidence to show that these two essential ceremonies were performed in this case. In the absence of any evidence, the lower Court has rightly come to the conclusion that the prosecution has failed to establish the case against the accused and acquitted the accused.
11. In the result, there are no grounds to interfere with the judgment of acquittal. The criminal appeal is, accordingly, dismissed.