Madras High Court

S.Vasuki vs Sivananda Pandian on 10 September, 2024

Author: N.Seshasayee

Bench: N.Seshasayee

                                                                                  Crl.A.No.363 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              Reserved on : 04.09.2024

                                             Pronounced on : 10.09.2024


                                        CORAM : JUSTICE N.SESHASAYEE

                                                Crl.A.No.363 of 2019


                S.Vasuki                            .... Appellant / Respondent / Complainant

                                                        Vs


                1.Sivananda Pandian
                2.Nilambikai                     .... Respondents / Appellants / Accused



                Prayer : Criminal Appeal filed under Section 378 Cr.P.C., praying to call for
                the records in C.C.No.4128 of 1994 on the file of XVIII Metropolitan
                Magistrate Court and set aside the order dated 23.04.2007 passed in C.A.No.123
                of 2007 on the file of III Additional Sessions Judge, City Civil Court, Chennai,
                and punish the respondents herein and pass such other suitable orders.


                                        For Appellant        : Mr.C.Umashankar

                                        For Respondents      : Mr.M.Bharath & Mr.P.Gunaraj
                                                               for R1 & R2




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                                                                               Crl.A.No.363 of 2019




                                                  JUDGMENT

This appeal is preferred challenging a judgment acquitting the respondents by

the learned III Additional Sessions Judge, City Civil Court, Chennai, in

C.A.No.123 of 2007 of the charges U/s.494 I.P.C. Very evidently, the appellant

is the defacto complainant and the 1st respondent is her husband and the 2nd

respondent is alleged to be married to the 1st respondent as second time, even

while his marriage to the appellant is subsisting.

2.1 The appellant was married to the 1st respondent on 31.08.1977. It appears

that their matrimony has not been comfortable almost since their journey

commenced. The appellant has also preferred certain complaints before the

learned Chief Metropolitan Magistrate, sometime in 1990 against the 1st

respondent on the allegations of dowry demand. Be that as it may, 1st

respondent had moved the Family Court with his petition for dissolution of

marriage with the appellant on the grounds of desertion, the appellant would

counter it with her petition for restitution of conjugal rights. These petitions

were decided against the 1st respondent.

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2.2 It is in this setting, the appellant has preferred a complaint before the learned

Magistrate, alleging that the 1st respondent has married the 2nd respondent, and

that their marriage had secretly taken place in the house of the 1st respondent at

Chennai, and that she had preferred complaints to the Special Cell of the Chief

Minister, pursuant to which the police enquired the matter and found that the 1 st

respondent had married the 2nd respondent and that they have two children born

out of their wedlock. She had also made a fair statement that when her father

visited the 1st respondent at the said house, he only found the children and he

did not find the 2nd respondent wearing thali or mangalsutra. The prosecutrix

also produced Ex.P1 to Ex.P7.

3.When confronted with this accusation, the respondents denied the same,

following which the trial Court framed necessary charges and proceeded to hold

a trial for the charges framed. During trial, the complainant examined herself as

PW1 and she examined three other independent witnesses as PW2, PW3 and

PW4. For the respondents, the 1st respondent entered the box and examined

himself as DW1.

4. The trial court entered a finding of guilt against both the accused persons, and

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the evidentiary facts which persuaded the trial Court to arrive at its decision

are:

a) that the 1st respondent had admitted that the two children born

to the 2nd respondent were born through him and produced the

birth Certificates of the children to establish the same.

b) that in Ext.P5, voter's list, the 2nd respondent is shown as the

wife of the 1st respondent.

c) PW2, a cousin of the 1st respondent has spoken about the

marriage between the respondents, which he had witnessed in

1989 at Tiruchendur. PW3 also speaks about the same.

Accordingly, the trial Court proceeded to hold that the 1st respondent indeed

had married the 2nd respondent and convicted both of them for two years R.I.

and also slapped a fine of Rs.5,000/- on each of them.

5. This judgement was taken in appeal by the respondents herein, in

C.A.No.123 of 2007, before the III Additional Sessions Court, Chennai. The

learned Sessions Judge, however, has held that the prosecutrix has not

established the guilt of the respondents beyond reasonable doubts. He

essentially found that while in her complainant the appellant herein had made a

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categorical statement that the respondents had married secretly in the house of

the 1st respondent at Chennai, both PW2 and PW3 had testified that they had

witnessed the marriage between the respondents sometime in September, 1989

at Tiruchendur, and he granted benefit of doubt to the respondents, and

acquitted them. This judgement of the sessions court is now under challenge in

this appeal.

6. The learned counsel for the appellant made the following submissions :

a) It is not in dispute that the first respondent had married the appellant

sometime in 1977, and they did not share a comfortable matrimony.

The first respondent more or less deserted the appellant, as a result of

which she was forced to shift her residence from Madurai, where she

has gone with her husband after marriage to him, to Chennai. And

there had been civil litigations instituted by the appellant against her

husband besides a petition for restitution for conjugal rights. The first

respondent on his part had filed a petition for dissolution of marriage

with the appellant. While the trial Court dismissed the first

respondent's petition for dissolution of marriage, it did allow the

appellant's petition for restitution of conjugal rights. This is a setting

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which needs to be appreciated while appreciating the evidence relating

to the appellant's allegation of first respondent contracting second

marriage with the second respondent.

b) So far as the factum of second marriage is concerned, PW2 and PW3

were the eyewitnesses to the event, and they both make a consistent

statement that the marriage had taken place at Tiruchendur temple

sometime in August, 1989, that it was conducted by a certain Krishna

Iyer, a priest for the function, and both had stated that they shared this

information with the appellant. It is that true the appellant did not

raise the issue of second marriage immediately but she as PW1 had

deposed that there had been efforts to dissolve the differences between

the first respondent and the appellant, and that answers the delay.

c) It may be that there is some variance as to the place where the

marriage took place if something which the appellate Court has found,

but it pales into insignificance if one looks to Ext.P4, birth certificate

of the child born to the respondents wherein the name of the first

respondent is stated to be the father of the child born, as well as Ext.P5

voter's list where the second respondent is noted as the wife of the first

respondent. It is too difficult to establish the second marriage for it is

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something done very secretly. Therefore, the second marriage in large

number of circumstances might have to be inferred from certain

attending circumstances.

Reliance was placed on the authorities in Baba Natarajan Prasad Vs

M.Revathi [MANU/SC/0624/2024]; Shiramabai and Ors. Vs The Captain,

Record Officer for O.I.C. Records and Ors. [MANU/SC/0902/2023] and Tulsa

and Ors. Vs Durghatiya and Ors. [MANU/SC/0424/2008].

7. Per contra, the learned counsel for the respondents submitted that it is not just

a place where the marriage is alleged to have taken place alone matters in

proving the allegation of bigamy, but the conduct of both PW2 and PW3 read

alongside the conduct of PW1. In a case of bigamy what is significant is not the

birth of the child but the factum of marriage. It may be that the first respondent

might have fathered the children delivered by the second respondent, but that

does not ipso facto concludes the second marriage. The voter's list makes a

statement but it does not operate as a proof to establish the second marriage.

And in that testimony of both PW2 and PW3 would state that they have

witnessed certain marriage at 10.00 a.m., on a certain August day in 1989, and

that the marriage was conducted by a certain Krishna Iyer. This Krishna Iyer

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was not examined. Turning to the contention of the appellant that there were

panchayats to resolve the dispute is concerned, she in her testimony has cited

that a certain Santhosh Pandi, her brother is one of the witnesses to the event,

but she did not choose to examine him.

8.1 Given the nature of charge for which the respondents herein faced trial and

given the quality of evidence made available by the appellant, an unequivocal

statement that could be made is that the first respondent, the husband of the

appellant indeed was living with the second respondent and also had fathered

the children through her, as could be seen from Ext.P4 and Ext.P5. But the

issue here is whether the first respondent had married the second respondent. In

terms of the definition of bigamy under Section 494 IPC, one of the spouse

marrying a man or woman as the case may be during the subsistence of a

marriage, is sine qua non for constituting the very offence. Therefore, this

necessarily implies that the appellant is under a burden to establish that the first

respondent had contracted another marriage with the second respondent, during

the subsistence of her marriage with him.

8.2 When turning to prove this, this Court does not find any coherence in

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evidence for establishing bigamy. It is explained :

(a) PW2 and PW3 claim that they are related to the complainant, and they

were the eyewitnesses to the marriage of the first respondent with the

second respondent. According to them, the marriage had taken place

at Tiruchendur sometime in a August day in 1989. And they also

claim that they had shared this information with the appellant. But the

appellant did not react to that immediately. According to the counsel

for the appellant, there were peace talks between the parties and that

was the reason for the delay. However when the chief examination of

PW1 is perused, it does disclose about the panchayats made by the

elders, but that was deposed in the context of the appellant's narration

as to the initial separation early in the matrimony and not in the

context in which the learned counsel for the appellant projected;

(b) Both PW2 and PW3 claim that they have seen the marriage and that

they did share what they saw at Tiruchendur, but the response of the

appellant was not consistent with the ordinary course of human

conduct, as she laid her complaint some four years thereafter. It also

lead to the suspicion whether PW2 and PW3 at all witnessed the

marriage. In this context, it is relevant to note that the appellant had

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produced Ext.P3, a copy of the common order passed in

FCOP.No.871/1993 and FCOP.No.1217/1993. Of these two cases,

FCOP.No.1217/1993 was laid by the appellant for restitution of

conjugal rights. In paragraph No.4 of the said order, the Family Court

had extracted the pleadings of the appellant. This narration nowhere

disclose any allegation of the first respondent's marriage with the

second respondent. To emphasis this, the petition was laid in 1993,

but the alleged second marriage had taken place in 1989 which PW2

and PW3 have claimed to have witnessed. If only PW2 and PW3 had

witnessed the second marriage and have also duly conveyed the same

to the appellant, then it is inconceivable that the appellant could have

omitted to mention the same in her pleadings in FCOP.No.1217/1993.