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1. A question of importance concerning the interpretation of Section 17 of the Hindu Marriage Act (Central Act XXV of 1955) read with Section 494 IPC is involved in this reference which has been made by my learned brother, Basi Reddy, J.

2. This revision petition is filed by the petitioner (1st accused) against Criminal Appeal No. 338 of 1959 on the file of the Sessions Judge, Rajahmundry who dismissed it. That appeal arose out of C.C. No. 66 of 1959 on the file of the Additional District Munsif-Magistrate, Ramachandrapuram. As against the 1st accused a private complaint was laid Under Section 494 IPC read with Section 17 of the Hindu Marriage Act, 1955 Central Act XXV of 1955) alleging that this accused, a retired elementray School teacher, contracted a marriage with the 2nd accused, who is the daugther of accused 3 and 4, even though he had at the date the marriage with the 2nd accused the complainant as his wife. The 2nd accuse is the second wife of 1st accused; and accused 3 and 4 who are the father and mother of the 2nd accused, stood charged Under Section 494 read with Sections 109 and 114 IPC The learned Additional District Munsif-Magistrate found that the second marriage of the 1st accused with the 2nd accused was solemnized at 2-00 a.m. on 1-9-1959 in Seethanagaram In Rajahmundry taluk, and believing the evidence of the 3rd accused who deposed as D.W, 2 that A-2 and A-4 had no knowledge of the marriage, acquitted them. The 1st accused was charged and convicted Under Section 494 IPC and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 900/-; the 3rd accused was also found guilty Under Section 494 IPC read with Section 114 IPC and sentenced to undergo three months rigorous imprisonment. On appeal by accused 1 and 3, the learned Sessions Judge held the view that the 3rd accused gave his daughter in. marriage under a mistaken impression that the previous marriage of the 1st accused with the complainant has been annulled and that therefore, the 3rd accused did not intentionally aid the commission of the offence. He, therefore, allowed Criminal Appeal No. 332 of 1959 filed by the 3rd accused, but confirmed the conviction and sentence imposed on the 1st accused as he dismissed Criminal Appeal No. 338 of 1959.

5. In this revision petition the same point is again agitated and elaborately argued by Mr. ParthasarathySwamy the learned Counsel for the petitioner. He contends firstly 'that the prosecution, when it charges a person with the offence of bigamy punishable Under Section 494 IPC should prove positively, apart from the marriage which is subsisting, that the accused contracted another valid marriage in accordance with the rites obtaining in the particular caste or sect of the Hindus; and secondly if there is no proof by the prosecution of such a valid second marriage, there is no offence of bigamy. In other words, having regard to the facts of the instant case, what is contended by the learned Counsel is, that short of the evidence of the taking of the seventh step as a result of the performance of ceremony of Saptapadi which must be made available by evidence of the direct witnesses there is no other way of proving the solemnization of a marriage in such a case.

While so, the position in regard to parties to a marriage which could be revoked or dissolved because of its imperfectness only at the instance, I initiation or impeachment by any party, cannot be considered as invalid or void for all purposes even from the inception. The subsistence of the second marriage between the parties whose intention t0 have it performed and who go through a form of it and never attempt to question it could in our view, be definitely taken as proof of that marriage. In such a case it will come Under Section 494, Indian Penal Code as one where the husband or wife married again having already n spouse although the position after a decree for dissolution is obtained for proved infraction of the provisions of Section 7 may be on a different fooling.

It may not be inapt, having regard to the propositions stated above concerning the proof of marriage, to hold that no special responsibility is thrown on the prosecution to prove that the second marriage was completed by taking the se- venth step when especially proof of it will be complete with the play of presumption juris which is always rebuttable.

20. The learned Counsel next placed strong reliance upon the judgment of Sanjeeva Row Nayudu, J., in Satyavathi v. Subbayamma (1959) 1 Andh WR 169 in support of his contention. But we are unable to find anything in it which goes against the accredited principles which we has already referred to concerning the proof of second marriage. After stating that the main fact in issue to be found in cases falling Under Section 494 Indian Penal Code or 'section 4 of the Madras Hindu (Bigamy Prevention and Divorce) Act (Madras Act VI of 1949) is whether the second marriage has in fact taken place or not, the learned Judge arrive at the conclusion on the evidence that, in his opinion, the case failed for want of credible evidence establishing the factum of bigamous marriage. The learned Judge had, there-fore, no necessity to advert to the manner in which the second marriage has to be proved or whether it was necessary to establish the validity of the second marriage even if that is not questioned. We are, therefore, unable to see that any support could be drawn from this decision by the learned Counsel for his contention.