Madras High Court

Amutha vs Mani @ Bakthavachalam on 3 March, 2025

Author: Sathi Kumar Sukumara Kurup

Bench: Sathi Kumar Sukumara Kurup

Crl.A.No.420 of 2016

IN THE HIGH Court OF JUDICATURE AT MADRAS

Dated : 03.03.2025

Coram :

THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

Criminal Appeal No.420 of 2016
---

Amutha .. Appellant

Versus

1. Mani @ Bakthavachalam
2. Dhanabakkiam
3. Ramachandran
4. Madhaiyan .. Respondents

Criminal Appeal filed under Section 378 of Code of Criminal Procedure
against the order of acquittal dated 06.01.2016 made in C.A. No. 105 of 2015
on the file of the III Additional District and Sessions Court, Salem reversing
the judgment dated 29.06.2015 made in C.C. No. 2 of 2014 on the file of the
Judicial Magistrate Court, Additional Mahila Court, Salem.

For Appellant : Mr. N. Manoharan
For Respondents : Mr. S.P. Yuvaraj

JUDGMENT

This Criminal Appeal had been filed against the order of acquittal dated

06.01.2016 made in C.A. No. 105 of 2015 on the file of the learned III

Additional District and Sessions Judge, Salem reversing the judgment dated

29.06.2015 made in C.C. No. 2 of 2014 on the file of the learned Judicial

Magistrate, Additional Mahila Court, Salem.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:06 pm )

2. The brief facts, which are necessary for the disposal of this

Criminal Appeal, are given below:

2.1. The marriage between the Appellant and the first Respondent was

solemnised on 01.11.1992. In the course of the matrimonial life, the Appellant

delivered a female child. After the birth of the female child, the first

Respondent and his mother driven the Appellant out of the matrimonial home

when their demand for payment of Rs.10,000/- as dowry was not met by her.

Subsequently, there was a settlement talk made by elders of both the families

and the Appellant was united with first Respondent in the matrimonial home,

after paying the amount demanded by the first Respondent. After a year

therefrom, once again, the first Respondent driven the Appellant out of the

matrimonial home. It is alleged that after driving out the Appellant from the

matrimonial home, the first Respondent developed illicit relationship with

second Respondent and even married her at Uthamacholapuram

Karapuranadhar Swami Temple. It is also alleged that the marriage between

Respondents 1 and 2 was solemnised by the Respondents 3 to 7 and they are

witnesses to the illegal marriage. The Appellant also alleged that out of such

illegal marriage between the Respondents 1 and 2, three children have born and

it stands testimony to their illegal relationship when the marriage between the

first Respondent and the (Appellant https://www.mhc.tn.gov.in/judis was subsisting.

Uploaded on: 13/03/2025 05:36:06 pm ) Therefore, the Appellant

filed a private complaint under Section 200 of the Code of Criminal Procedure

against the Respondents 1 to 7 praying to punish them for the alleged offences

under Sections 494 read with 109 of the Indian Penal Code.

2.2. The learned Judicial Magistrate, Additional Mahila Court, Salem

framed charges against the first Accused for the offence under Section 494 of

the Indian Penal Code and Charge for the offence under Section 494 read with

Section 109 of Indian Penal Code as against the Respondents 2 to 7 therein.

2.3. During trial in the private complaint, the Appellant herein

examined herself as P.W-1 and one Balasubramaniam, Executive Officer of

Karupunathar Temple as P.W-2. She marked 5 documents as Ex.P-1 to Ex.P-5

in support of the private complaint. On the side of the Respondents/Accused,

no witness was examined, however, they have marked two documents as Ex.

R-1 and Ex.R-2.

2.4. The learned Judicial Magistrate, Additional Mahila Court, Salem,

upon considering the oral and documentary evidence passed the Judgment

dated 29.06.2015 by holding that the first Respondent is guilty of offence

under Section 494 of IPC and the Respondents 2, 4 and 5 have committed the

offence under Section 494 of IPC read with Section 109 of IPC. However, the

Respondents 3, 6 and 7 were found not guilty of the offences and therefore

they were acquitted of the charges for the offence under Section 494 of IPC

read with Section 109 of IPC.

https://www.mhc.tn.gov.in/judis                     Ason:far
                                            ( Uploaded       as the05:36:06
                                                          13/03/2025 sentence
                                                                            pm ) is concerned, the Accused

1, 2, 4 and 5 were sentenced to undergo one year rigorous imprisonment and to

pay fine of Rs.1,000/- in default to undergo simple imprisonment for three

years.

2.5. Assailing the Judgment dated 29.06.2015 passed in C.C. No. 2 of

2014, the Respondents 1, 2, 4 and 5 have filed Criminal Appeal No. 105 of

2015 before the learned III Additional District Judge, Salem. The Appellate

Court, by the Judgment dated 06.01.2016 allowed the Appeal and acquitted the

Respondents 1, 2, 4 and 5 herein. Challenging the same, the Appellant is

before this Court with this Appeal.

3. Mr. N. Manokaran, learned Counsel for the Appellant would

submit that the Appellate Court erred in reversing the well considered

judgment of the trial Court. The Appellant has established that the

Respondents 1, 2, 4 and 5 are guilty of commission of the offence punishable

under Section 494 of the Indian Penal Code. The Appellant has marked Ex.P-1

marriage invitation of the Complainant dated 01.11.1992. Ex.P-2 is the

certified copy of the marriage receipt dated 11.07.1997 wherein the name of

the first Respondent and the second Respondent are found. Ex.P-3 is the child

birth extract issued by the Medical Officer, Government Primary Health

Centre, E. Kattur, Salem where the entry in Serial No.70 refers to first

Respondent and second Respondent https://www.mhc.tn.gov.in/judis as Husband ( Uploaded on: 13/03/2025 and 05:36:06 pm ) wife. Ex.P-4 is the voter

list for the Edappadi Legislative Assembly Constituency where the name of

the 1st and 2nd Respondents are reflected in Serial No.280 and 281. Further,

P.W-2 who is the Executive Officer of the Karapuranadhar Swami Temple

clearly stated in his evidence that the marriage between the 1st and 2nd

Respondents was solemnised in the temple on 11.07.1997 for which receipt

was issued. Ex.P-2 dated 11.09.1997 indicates that after five years of marriage

between the Appellant and the first Respondent, the second marriage between

the first and second Respondents was performed before Karapuranatha Swami

Temple on 11.09.1997 which was witnessed by the other Respondents. Thus,

based on the above clear evidence produced by the Appellant, the trial Court

rightly convicted the Respondents 1, 2, 4 and 5. But the Appellate Court

erroneously overturned it.

4. The learned Counsel for the Appellant also invited the attention of

this Court to the signed declaration form by Accused-1 and Accused-2 in C.C.

No. 2 of 2014 before the learned Judicial Magistrate, Additional Mahila Court,

Salem, wherein it was stated as below:

“nkw;go jpUkzk; kzkfd;. kzkfs; ,Utupd; xg;gj[ ypd; ngupy; ,e;J kj jpUkz rl;l';fSf;F cl;gl;L rhl;rpfs; Kd;dpiyapy; eilbgw;wJ/ ve;j xU tpy;y';fSf;Fk; kzkf;fs; kw;Wk; rhl;rpfs; bghWg;ngw;fpnwhk;/ kzkfd; ifbahg;gk;

https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:06 pm )

kzkfs; ifbahg;gk;

fl;lzk; tptuk;

U

5. The declaration form clearly indicates that the marriage was

solemnised as per Hindu rites, customs prevailing among the parties and each

one of the party are liable to the consequences resulting from the marriage.

P.W-2 was cross examined on behalf of the Accused by stating that the names

resembling the Accused was mentioned in the actual original marriage receipts

but he denied it. The address furnished in the receipts would reflect the address

of the Accused-1/first Respondent in this Appeal. Therefore, the claim of the

first Respondent that Ex.P-1 does not reflect the name of the Accused 1 and 2

will not hold good.

6. The learned Counsel for the Appellant also submitted that Ex.P-3

is the certified copy of the birth of the child born to the Accused-1 and 2 in

C.C. No. 2 of 2014 which proves that they have co-habited as husband and

wife. In the voter list for Edappadi Legislative Assembly Constituency the https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:06 pm )

name of the Respondents 1 and 2 are reflected as Husband and wife. The voter

list is a public document which has to be treated as genuine and bonafide

document and there is no reason to discard its. Ex.P-5 Marriage receipt issued

by the Arulmigu Karapuranatha swamy Temple also would prove that the

Respondents 1 and 2 got married, during the subsistence of marriage between

the Appellant and the Respondent No.1. The learned Judicial Magistrate,

Additional Mahila Court, Salem on assessment of evidence rightly convicted

the Accused-1 and 2 for offence under Section 494 of I.P.C. Accused Nos. 2, 4

and 5 were also convicted for offence under Section 494 r/w. 109 of I.P.C

while acquitting the Accused Nos. 3, 6 and 7. The learned Judicial Magistrate

also considered the fact that earlier, the same Complainant had given a

complaint against the first Respondent/first Accused based on which the All

Women Police, Sankari registered a case in Crime No. 13 of 2005 on

09.04.2005 for the offences punishable under Sections 498 (A), 494 and 307 of

Indian Penal Code against the first Accused, who is husband of the Appellant.

After investigation in Crime No. 13 of 2005, final report was filed against the

Accused therein for the offences under Section 498(A), 323 and 506(2) of

I.P.C before the learned Judicial Magistrate-II, Sankagiri. After full trial, the

learned Judicial Magistrate-II, Sankagiri by Judgment dated 29.09.2010 in C.C.

No. 128 of 2005 acquitted the Accused/first Respondent herein for the offences

under Sections 498 A and https://www.mhc.tn.gov.in/judis 306 (2) ( Uploaded of IPC05:36:06 on: 13/03/2025 but convicted pm ) him for the offence

under Section 323 of IPC and sentenced him to pay a fine of Rs.500/- failing

which to undergo simple imprisonment for a period of 3 months. It is

contended that the case in C.C. No. 128 of 2005 has got nothing to do with the

private complaint filed by the Appellant herein. However, the Appellate Court

concluded that when already a complaint was given against the first Accused,

the Appellant herein has given the present complaint against the Accused by

suppressing the earlier criminal complaint given in C.C. No. 128 of 2014.

Further, the Appellate Court has erroneously recorded that the Appellant has

not proved the solemnisation of the marriage between the Respondents 1 and 2

as per the Hindu Marriage Act in relation to the performance of Saptapadi and

datta homam. Such a conclusion reached by the Appellate Court is erroneous

when the Appellant has adduced oral and documentary evidence in abundant to

prove that the Respondents 1 and 2 married each other, lived as husband and

wife and have begotten three children during the subsistence of the marriage

between the Appellant and the Respondent 1. The marriage between the

Appellant and the Respondent No.1 has not been annulled in a manner known

to law, while so, the marriage between the Respondents 1 and 2 would attract

the provisions of Section 494 of IPC. When the Appellant, as complainant,

proved the factum of marriage between the Respondents 1 and 2, through

legally acceptable evidence, the burden shifts on the Accused. However, the

Accused did not enter into https://www.mhc.tn.gov.in/judis the witness ( Uploaded box05:36:06 on: 13/03/2025 and pm depose ) evidence therefore the

Court is duty bound to draw an adverse inference against the Accused. In such

circumstances, the Judgment of the trial Court is well reasoned. But the

Appellate Court reversed the Judgment of flimsy ground that the Appellant has

not proved that the marriage between the Respondents 1 and 2 was preceded by

the custom “Saptapadi” as per Hindu religion and therefore, acquitted them. If

such conclusion of the Appellate Court is to be accepted, then in all other cases

of bigamy, the Complainant/Wife has to suffer for the violation of law

committed by the Husband in contracting a marriage with another woman.

7. The learned Counsel for the Appellant also contended that the

finding of the learned III Additional District and Sessions Judge, Salem is

perverse in the light of the reported decision in the case of S. Nagalingam v.

Sivagami reported in (2001) 7 Supreme Court Cases 487 wherein it was held

as follows:-

“12. The question as to whether "Saptapadi", is an essential ritual to be performed, came up for consideration of this Court in some cases. One of the earliest decisions of this Court is 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. "Datta Homa" and "Saptapadi". In paragraph 25 of the judgment, it was held that the learned Sessions Judge and the High Court have categorically found that "Homa" and "Saptapadi" are the essential rites for a marriage according to the law governing the parties and there is no evidence that these two essential ceremonies have been performed when the Respondent is stated to have married Sandhya Rani. It is pertinent to note that in paragraph 9 of the judgment it is stated that both sides agreed that according to the (law https://www.mhc.tn.gov.in/judis prevalent Uploaded amongst on: 13/03/2025 the 05:36:06 pm ) parties. "Homa" and

"Saptapadi" were essential rites to be performed to constitute a valid marriage. Before this Court also, the parties on either side agreed that according to the law prevalent among them, "Homa" and "Saptapadi" were essential rites to be performed for solemnization of the marriage and there was no specific evidence regarding the performance of these two essential caremonies.

14. In Santi Deb Berma v. Kanchan Prava Devi also, the Appellant was acquitted by this Court as there was no proof of a valid marriage as the ceremonial "Saptapadi" was not performed. This Court noticed in this case also that the High Court proceeded on the footing that according to the parties, performance of "Saptapadi" is one of the essential ceremonies to constitute a valid marriage.

15. Another decision on this point is Laxmi Devi v. Satya Narayan wherein, this Court, relying on an earlier decision in (1971) 1 SCC 864 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.

18. Section 7-A applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons. The main thrust of this provision is that the presence of a priest is not necessary for the performance of a valid marriage. Parties can enter into a marriage in the presence of relatives or friends or other persons and each party to the marriage should declare in the language understood by the parties that each takes other to be his wife or, as the case may be, her husband, and the marriage would be completed by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon any finger of the other or tie a thali. Any of these ceremonies, namely garlanding each other or putting a ring upon any finger of the other or tying a thali would be sufficient to complete a valid marriage. Sub-Section 2(a) of Section 7-A specifically says that notwithstanding anything contained in Section 7, all marriages to which this provision applies and solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1987 shall be good and valid in law. Sub-Section 2(b) further says that notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any Court, all marriages to which this section applies solemnized at any time before such commencement, shall be deemed to have been valid. The only inhibition provided is that this marriage shall be subject to Sub-Section (3) of Section 7-A. We need not elaborately consider the scope of Section 7-

A(3) as that is not relevant https://www.mhc.tn.gov.in/judis for our ( Uploaded purpose.

on: 13/03/2025 05:36:06 pm )

19. The evidence in this case as given by PW-3 clearly shows that there was a valid marriage in accordance with the provisions of Section 7- A the Hindu Marriage Act. PW-3 deposed that the bridegroom brought the "Thirumangalam" and tied it around the neck of the bride and thereafter the bride and the bridegroom exchanged garlands three times and the father of the bride stated that he was giving his daughter to "Kanniyathan" on behalf of and in the witness of "Agnidevi" and the father of the bridegroom received and accepted the "Kanniyathan". PW-3 also deposed that he performed the marriage in accordance with the customs applicable to the parties.

21. "Saptapadi" was held to be an essential ceremony for a valid marriage only in cases it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The Appellant in the instant case, however, had no such case that "Saptapadi" was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section 7-A are applicable to the parties. In any view of the matter, there was a valid marriage on 18.6.1984 between the Appellant and the second Accused, Kasturi. Therefore, it was proved that the Appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6.9.1970.”

8. The learned Counsel for the Appellant also relied on the ruling of

this Court in the case of P. Aruchamy v. Selvakumari and another reported in

2019 SCC Online Mad 27573, wherein it was held as follows in paragraphs

24, 25 and 26:-

“24.The contention of Mr. N.Elumalai, learned Counsel for Aruchami (A1) that 'Saptapadi' is an essential ceremony for the solemnisation of Hindu marriage cannot be countenanced. Section 7 of the Hindu Marriage Act, 1955 reads as under:

'7. Ceremonies for a Hindu marriage – (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either parties thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage https://www.mhc.tn.gov.in/judis becomes ( Uploaded complete on: 13/03/2025 andpmbinding 05:36:06 ) when the seventh

step is taken”.

25. A reading of the above shows that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto and only if the ceremonies include the 'Saptapadi', the marriage becomes complete and binding when the seventh step is taken. But, be it noted that there are several Hindu communities whose marriage ceremonies do not include 'Saptapadi'. Thus, for the mere reason of 'Saptapadi' not being included in the ceremonies marriages cannot be held as invalid.

26. In Saanti Deb Berma (supra), 'Saptapadi' was a ceremony in the marriage process of the parties thereon. In fact, in the state of Tamil Nadu, on account of Section 7-A, ibid, even exchange of 'garlands' in the presence of family members and friends is sufficient to establish the solemnisation of marriage.”

9. The learned Counsel for the Appellant also relied on the

unreported judgment of this Court in S.Shanthi vs. P.Jaganathan in

Crl.A.No.263 of 2012, wherein in Paragraphs 10, 11 and 12, it was held as

follows:

“10. Ex.D3 and Ex.D4 is the Electoral Roll with photo of Valparai Constituency, wherein the name of the Respondent's second wife Karuppathal and his son Manikandan and their photographs are available. The trial Court has declined to consider Ex.P9, Ex.D3 and Ex.D4 for the reason that the Officer of Election Commission was not examined. These three documents are photocopy of the documents issued by the Election Commission. The genuineness of this document is not doubted but the trial Court has rejected these three documents, has not reliable.

11. In the instant case, the complainant had come to Court complaining that her husband, who is a government employee has deserted her and their two children, married another lady illegally and living with her. As a proof of the second marriage had produced the Electoral Roll. This evidence is rejected on a hyper technical reason that it has not been marked through the officer. These exhibits are part of a record maintained by the Election Commission. It is presumed to be genuine and the secondary evidence is admissible under the Indian Evidence Act, 1872, (itUploaded https://www.mhc.tn.gov.in/judis beingon:a 13/03/2025 public document.

05:36:06 pm ) Further the same has

been admitted by the Respondent and marked in the cross examination. Having admitted the genuineness of the entry found in the document, the Court cannot decline to accept the content of the document

12. Thus, the error in application of law and appreciation of evidence is palpably found in the judgment. In the light of the overwhelming evidence that the Respondent has married another lady, while the first marriage in subsistence, the offence under Section 494 of IPC is Page No.7/11 Crl.A.No.263 of 2012 squarely attracted. Therefore, the trial Court judgment is set aside. Charge under Section 494 of IPC found to be proved.”

10. By placing reliance on the above decisions, the learned Counsel

for the Appellant contends that merely because the Appellant did not prove that

“Saptapathi” was performed as an essential ceremony in the marriage between

the Accused 1 and 2, it will not invalidate the marriage. The fact remains that

the Respondents 1 and 2 married each other, lived as husband and wife and

also begotten children. When the Appellant has proved that they are residing

as husband and wife, the mere factum of non-performance of Saptapathi during

their marriage cannot be a reason for the Appellate Court to set aside the well

considered judgment of the trial Court.

11. Per contra, the learned Counsel for the Respondent submit that the

Appellate Court, on assessment of the oral and documentary evidence,

acquitted the Respondents herein. Such a view taken by the Appellate Court

need not be ordinarily disturbed by this Court without any compelling reasons.

When two views are possible, https://www.mhc.tn.gov.in/judis ( Uploaded the one in05:36:06 on: 13/03/2025 favourpm ) of the Accused has to be

accepted. It is the contention of the learned Counsel for the Respondent that

the complaint was filed after several years of marriage only to harass the

Respondents. Also, he invited the attention of this Court to the cross

examination of the Complainant as P.W-1 in which she admitted that she was

not in the matrimonial home after 1995. Thus, to harass the Respondents and

to wreck vengeance the instant private complaint has been filed by the

Appellant. Further, the learned Counsel for the Respondents invited the

attention of this Court to the contents of the Complaint in page 23 which is

extracted as follows:

“1997y; vd; fztu; vdf;;F bjupahky; jdghf;fpak; vd;w bgz;iz cj;jknrhHg[uk; fug[uehju; nfhapy; jpUkzk; bra;J bfhz;L thH;e;J tUfpwhu;/ ehDk; vd; fztu; vd;ida[k;/ vd; FHe;ijiaa[k; miHj;J brd;W thH;f;if elj;Jthu; vd;W gy ehl;fshf kd ntjidnahLk;. Kd cyr;rYlDk; thHe;J te;njd;/ fle;j 07/04/2005 e; njjp fhiy 9 kzpf;F vd; kfis gs;sp Tlj;jpw;F g!; itj;J tpl;L tPl;ow;F ngha; bfhz;oUe;njd;/ mg;nghJ vd; fztu; vd; jiy kapiu gpoj;J fPnH js;sp njtoah fz;lhu xyp nghyprpy; nf!; bfhLj;J tUrbky;yhk; vd;id thH tplhk bjhy;iy bfhLf;fpwha vd;W vd; fGj;ij gpoj;J ,j;njhL brj;J xHpe;Jg;ngh vd;W brhy;ypf;fpl;nl fGj;ij bewpj;jhu;/ ehd; jpkpup bfhz;L rj;jk; nghl;L fj;jnt vd; fztu; Xog;ngha; tpl;lhu;/ ehd; mGJf;bfhz;nl vd; mk;kh tPl;ow;F ngha; tpl;nld;/ vd; mk;khit Tl;o bfhz;L 09/04/2005 e; njjp midj;J kfspu; fhty; epiyaj;jpy; vd; fzth; kPJ eltof;if vLf;Fk; go g[fhu; bfhLf;fpnwd;/”

12. The evidence adduced by the Appellant regarding the factum of

the alleged second marriage in Page 37 Paragraph 6 of the typedset, is

extracted as follows:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:06 pm )

“m/rh/9 jpUkjp/ nahfyl;Rkp. nryk; cj;jknrhHg[uj;jpy; fug[uehju; nfhtpypy; jhd; cjtpahsuhf epu;thf mjpfhupahf gzpapy; 2004y; ,Ue;J 2007 tiu gzpapy; ,Ue;j fhy fl;lj;jpy; me;j nfhtpypy; eilbgWk; jpUkz';fSf;F urPJ nghLk; gHf;fk; ,Ue;jJ vd;Wk;. mJ ,e;J mwepiya Jiwapd; fPH; ,a';Fk; nfhtpyhFk; vd;Wk;. nkw;go nfhtpypy; elf;Fk; jpUkz';fSf;F urPJ tH';Fnthk; vd;Wk; jdghf;fpak;. gf;jtr;ryk; vd;W egh;fSf;F nkw;go nfhtpypy; jpUkzk; eilbgw;wjh vd;gJ jdf;F jw;nghJ “hgfj;jpy; ,y;iy vd;Wk;. mjw;fhd urPij fhl;odhy; jhd; jd;dhy; brhy;y Koa[k; vd;Wk;. nkw;go ahu; jpUkzj;jpw;F urPJ tH';fg;gl;ljh vd;gJ jdf;F “"hgfk; ,y;iy vd;Wk;. rhl;rpak; mspj;Js;shu;”

13. The discussion of evidence by the learned Judicial Magistrate,

Sankagiri based on the Police Report filed in the complaint preferred by the

Complainant/wife in C.C.No.128 of 2005 before the learned Judicial

Magistrate, II Sankagiri and the finding of the learned Judicial Magistrate, II

Sankagiri in Para 18 of the judgment are extracted as follows:

“18. nkYk;. m/rh/.4.5 rhl;rpfs; j';fSila rhl;rpaj;jpy; vjpup m/rh/1 I 8 tUl';fSf;F Kd;g[ moj;J Juj;jptpl;L. ntW XU bgz;iz jpUkzk; bra;Jbfhz;ljhft[k;. 8 tUl';fshf ,UtUk; gpupe;J thH;e;J tUtjhft[k;. rhl;rpak; mspj;Js;shu;fs;/ ,e;j epiyapy;. 97k;

Mz;oypUe;J g[fhu; bfhLf;Fk; ehs;tiu ,UtUk; fztd; kidtpahf xnu tPl;oy; nrh;e;J thH;e;J tuhjgl;rj;jpy; m/rh/1 I vjpup tujl;riz bfhLik bra;jjhff; TwtJ Vw;Wf;bfhs;sf;Toajhf ,y;iy/”

14. By placing reliance on the above, it is contended by the learned

counsel for the Respondent that already, the Appellant has given a complaint

based on which C.C. No. 126 of 2005 was registered. By Judgment dated

29.09.2010, the learned Judicial Magistrate No.II, Sankari acquitted the first https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:06 pm )

Respondent herein. Having failed in convicting the first Respondent/husband

in C.C. No. 126 of 2005, the present case in C.C. No. 2 of 2014 has been filed.

Thus, the private complaint in C.C. No. 2 of 2014 ought not to have been

entertained by the trial Court. The Appellant-complainant in C.C. No. 2 of

2014 is estopped from filing the present complaint at all. Even in the present

case, the burden of proof of second marriage is entirely on the Complainant in

a Criminal proceedings and it never shifts on the Accused. It is well settled that

the Accused in a criminal proceedings shall maintain stoic silence and the

burden is entirely on the prosecution to prove the case without any reasonable

doubt.

15. The submission of the learned Counsel for the

Complainant/Appellant that the Accused avoided the witness box cannot be

countenanced. The learned Counsel for the Respondent relied on the cross

examination of the Executive Officer of the Temple, P.W-2/Balasubramaniam.

If it is to be considered, the proof of marriage had not been proved by the

Appellant. The receipt under Ex.P-2 does not contain the address of the

Accused and it is not a valid document. P.W-2 claim that the so-called

marriage was solemnised as per the Hindu rites and customs whereas the

evidence of Complainant (isUploaded https://www.mhc.tn.gov.in/judis the marriage on: 13/03/2025was solemnised 05:36:06 pm ) as a Suyamariyathai

Kalyanam. Therefore, the learned counsel for the Respondent submitted that

the decision relied on by the learned counsel for the Appellant in S.

Nagalingam v. Sivagami reported in (2001) 7 Supreme Court Cases 487 is not

applicable to the facts of this Case as the reported decision deals with

Suyamariyathi Kalyanam (Self-respect marriage).

16. The learned Counsel for the Respondent invited the attention of

this Court to the findings of the trial Court as a valid marriage which was

overturned by the Appellate Court in its judgment in paragraph 21 and 24 as

follows:

“21. The word “Solemnize” means in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form. Therefore, unless, the marriage is “celebrate or performed with proper ceremonies and due from” it cannot be said to be solemnized. It is therefore essential for the purpose of Section 17 of the act, that 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 intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom.

24. When it was held that even an admission of the marriage is no evidence of the marriage, this Court finds that the conclusion arrived by the Court on the basis of Ex.P-2 to P-5 is not correct and legal. In the absence of evidence to prove that the essential ceremonies were performed during the alleged marriage of the Accused 1 and 2, it cannot held that there was a valid marriage between the Accused 1 and

2. While coming to such conclusion and in view of the settled position above this Court holds that the complainant had miserably failed to prove the offence said to have been committed by the Accused and the judgment beyond the conviction order of the trial Court is not sustainable and the same https://www.mhc.tn.gov.in/judis is liable to be set aside. Points are answered ( Uploaded on: 13/03/2025 05:36:06 pm )

accordingly.”

17. When the Appellate Court had given a finding of acquittal, it shall

not be slightly disturbed by this Court. Further, the Accused 3 and 4 are only

witnesses and there cannot be any presumption against the witnesses. The

evidence of P.W-2 as against Accused-3 and Accused-4 is lacking and it

cannot be put against them to convict them. Accordingly, the learned counsel

for the Respondents prayed for dismissal of this appeal.

Point for consideration:

Whether the judgment of the learned III Additional District and Sessions Judge, in C.A.No.105 of 2015 dated 06.01.2016 acquitting the Accused in C.C. No.2 of 2014 on the file of the learned Judicial Magistrate, Additional Mahila Court, Salem by setting aside the judgment of conviction of the learned Judicial Magistrate, Additional Mahila Court is to be set aside as perverse?

18. Heard the learned Counsel for the Appellant and the learned

Counsel for the Respondents/Accused. Perused the deposition of P.W-1 and

P.W-2 and the documents marked under Ex.P-1 to Ex.P-5 and the judgment of

the learned Judicial Magistrate, Additional Mahila Court, Salem in C.C.No.2 of

2014 and the judgment of learned III Additional District and Sessions Judge, in

Criminal Appeal No.105 of 2015.

19. On consideration of the rival submissions and on perusal of the

judgment of the learned Judicial Magistrate, Additional Mahila Court, Salem in https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:06 pm )

C.C.No.2 of 2014 dated 29.06.2015, it is found that upon proper appreciation

of evidence, the learned Judicial Magistrate Additional Mahila Court had

rejected the claim of the learned Counsel for the defence/Accused that the

Complainant before the learned Judicial Magistrate had suppressed the fact that

she had agitated the same complaint on an earlier occasion. By referring to the

earlier proceedings based on the complaint given by the Appellant before the

Sankagiri Town Police Station in Crime No.13 of 2005, the case was

investigated and final report was filed and it was taken on file as C.C. No. 128

of 2005. On appreciation of evidence, the learned Judicial Magistrate II

Sankagiri had acquitted the Accused in C.C. No. 128 of 2005 from the offence

under Section 498 (A) and convicted him for offence under Section 323 alone.

The Appellant-complainant in her complaint clearly stated that she has

preferred the complaint only for the offence under Section 494 alone.

20. Before the trial Court in C.C. No. 2 of 2014, the claim of the

Respondents/Accused is that they are innocent and did not commit any offence.

The trial Court rejected it by recording reasons in paragraph 15 to 17. It was

found that Accused 1 and 2 had not denied the signature under Ex.P-5 –

marriage receipt. The trial Court also considered the certified copy of the child

birth under Ex.P3, voter list under Ex.P4 and certified copy of the marriage

receipt dated 11.07.1997.( Uploaded https://www.mhc.tn.gov.in/judis These documents on: 13/03/2025 clearly 05:36:06 pm ) show that there was a

marriage between the Respondents 1 and 2, during the subsistence of the

marriage between the Respondent 1 and the complainant. It is not the case of

the first Respondent/Accused No.1 that the marriage solemnised between him

and the Appellant was dissolved through a Court of law. In this context, the

learned Judicial Magistrate, Additional Mahila Court, Salem accepted the

evidence of P.W-2, the Executive Officer of the Temple and concluded that the

claim of the Complainant/wife with regard to Bigamy against the Accused 1

under Section 494 had been proved. However, as there is no direct evidence

to assert that Accused 3, 6 and 7 participated in the second marriage they were

acquitted from the charge under 494 r/w.109 of I.P.C.

21. With reference to the earlier case in C.C. No. 128 of 2005, it was

filed by the Appellant mainly on the ground that she was subjected to

matrimonial cruelty by her husband by demanding dowry. It is her contention

that she was subjected to physical assault as well. Therefore, the case in C.C.

No. 128 of 2005 was registered only against the first Respondent-husband.

The scope of enquiry in C.C. No. 128 of 2005 is entirely different when

compared to the nature of allegations levelled in C.C. No. 2 of 2014.

Therefore, the so-called suppression of earlier C.C. No. 128 of 2005 or the fact

that the said case will operate as a bar for the complainant to file the instant

complaint against the Respondents https://www.mhc.tn.gov.in/judis cannot 05:36:06 ( Uploaded on: 13/03/2025 be countenanced.

pm ) It is true that the

first Respondent herein was acquitted of the charge of Section 498 A of IPC

but only convicted under Section 323 of IPC and sentenced to pay fine of

Rs.500/-. On the other hand, in the present case in C.C. No. 2 of 2014, the

specific case of the Appellant is that the Respondents 1 and 2 married each

other when her marriage with the first Respondent is subsisting. Further, the

other Respondents were roped in with an allegation that they have witnessed

and/or solemnised such illegal marriage between the Respondents 1 and 2.

Thus, the earlier case in C.C. No. 128 of 2005 will not operate as a bar for the

Appellant to file the present case in C.C. No. 2 of 2014. The learned

Additional Mahila Court, Salem, on proper appreciation of the above facts, has

rightly convicted the Respondents herein, but it was erroneously overturned by

the Appellate Court on a specious reasoning that the factum of marriage

between the Respondents 1 and 2 has not been established. This would only

indicate that the Appellate Court has grossly ignored the documentary evidence

filed by the Appellant, which would clinchingly establish that there was a

marriage between Respondents 1 and 2, they lived as husband and wife and

they have also begotten children out of such marriage. In such circumstances,

the judgment of the learned Judicial Magistrate, Additional Mahila Court in

C.C.No.2 of 2014 is found proper.

https://www.mhc.tn.gov.in/judis The finding (of the on:

Uploaded learned 13/03/2025III Additional 05:36:06 pm ) District and Sessions

Judge in Paragraph No.21 and 24 as relied by the learned Counsel for the

Respondent cannot be countenanced in the light of the decision in

S.Nagalingam v. Sivagami reported in (2001) 7 Supreme Court Cases 487

wherein it had been clearly stated that in Tamil Nadu, Section 7 of the Hindu

Marriage Act had been amended, whereby exchange of garland itself is treated

as Suyamariyathai Marriage which also attracts Bigamy.

23. On perusal of the judgment of the reported decision of the

Honourable Supreme Court, it was held that the learned single Judge of this

Court was right in holding that the Appellant has committed the offence of

Bigamy and remanded the matter to the trial Court for awarding appropriate

sentence. In this case, P.W-2 Balasubramanian, Executive Officer of the

Karapuranadha Swami Temple, Uthamacholapuram, Salem deposed that a

declaration form was signed by the bride and bridegroom and it also contained

the address of the parties to the marriage. The first Respondent before us is

Mani @ Bhakthavatchalam, S/o. Ramasamy Gounder. Ex.P-1 is the marriage

invitation wherein the name of the bride groom is given as Mani @

Bhakthavatchalam S/o. Ramasamy Gounder. Ex.P-2 is the receipt from

Arulmigu Karapuranadha Swami Temple, Uthamacholapuram, Salem wherein

the name is found as R.Bhakthavatchalam. The address given in receipt is

Bhakthavatchalam S/o. Ramasamy https://www.mhc.tn.gov.in/judis Gounder, ( Uploaded on: 13/03/2025 05:36:06Meiyanur, pm ) Salem which is the

same as in Ex.P-1. Thus, it is clear that the marriage between Respondents 1

and 2 has been proved.

24. The helpless wife/Appellant who had been deserted by the

Husband and/or driven out of the matrimonial home had been agitating her

right for quite a longer time. It is her certain case that her marriage with the

first Respondent has been dissolved in a manner known to law, while so, the

first Respondent had contracted a marriage with the second Respondent and

committed the offence of Bigamy. To strengthen her case, she has filed oral

and documentary evidence. Upon analysing the same, the trial Court rightly

recorded a judgment of conviction and it cannot be considered as perverse

warranting interference. On the other hand, the observation of the learned III

Additional District and Sessions Judge, Salem that the Complainant as P.W-1

had not proved the claim of Bigamy especially the custom of “Sapthapathi” is

unfounded in the light of Section 7 of the Hindu Marriage Act and the ruling of

the Honourable Supreme Court

25. As far as Tamil Nadu is concerned, Section 7 of the Hindu

Marriage Act will not hold good as there is an amendment regarding various

forms of marriage among Section 7 of the Hindu Marriage Act was amended

by the State of Tamil Nadu https://www.mhc.tn.gov.in/judis andon:Section ( Uploaded 13/03/2025 7 (a) was 05:36:06 pm ) inserted. In the reported

decision in the S.Nagalingam v. Sivagami, the finding by the learned Single

Judge of this Court convicting the Husband for Bigamy was confirmed by the

Honourable Supreme Court. Also in the light of the same judgment, the learned

Judge of this Court had in the reported decision in the case of P.Aruchamy v.

Selvakumar reported in 2019 SCC Online Mad 27573 convicted the Accused

for the offence of Bigamy.

26. With respect to the alleged delay, it is seen from the records that

the marriage between the Appellant and first Respondent was solemnised on

01.11.1992. The first Respondent contracts a second marriage on 11.07.1997,

which was not known to the Appellant. In the year 2005, the Appellant files a

complaint against her husband/first Respondent before the All Women Police

Station, Sankari based on which a case in Crime No. 13 of 2005. After

investigation, a charge sheet was filed which was taken on file in C.C. No. 128

of 2005. By judgment dated 29.09.2010, the said case ended in conviction of

the first Respondent herein only for the offence under Section 323 of IPC and

he was acquitted of the other offences under Sections 498A and 506 (ii) of IPC.

It appears that while filing the complaint in Crime No. 13 of 2005, the

Appellant was aware of the second marriage contracted by her husband. In

fact, the Appellant had been agitating her right to get reunited with her husband

for which purpose several( Uploaded https://www.mhc.tn.gov.in/judis panchayats have05:36:06 on: 13/03/2025 beenpm held ) in the presence of elders

in the Village. For having convened the panchayat, the first Accused assaulted

the Appellant and therefore, the complaint in Crime No. 13 of 2005 was given.

In the given facts and circumstances, merely because the Appellant has filed

the instant private complaint only in the year 2014, it cannot be held that she

had given up her claim against the first Respondent. She has been continuously

agitating her claim that the first Respondent, during the subsistence of marriage

with her, had married the second Respondent. In the light of such facts, it

cannot be said that the instant private complaint given by the Appellant is

belated and on that ground it has to be rejected. In the opinion of this Court,

the mere delay in filing the instant complaint will not be a ground to reject it.

The trial Court, on proper appreciation of the evidence, rightly convicted and

sentenced the first Respondent for the offence under Section 494 of IPC and

the Respondents 2, 4 and 5 for the offence under Section 494 of IPC read with

Section 109 of IPC. It is a well considered decision of the trial Court which

does not warrant any interfere by this Court.

27. In the light of the above discussion, the point for consideration is

answered in favour of the Appellant and against the Respondents. The

judgment of acquittal recorded by the learned III Additional District and

Sessions Judge, Salem in C.A.No.105 of 2015, dated 06.01.2016 is found

perverse and the same is to https://www.mhc.tn.gov.in/judis be seton:aside.

                                           ( Uploaded             The
                                                         13/03/2025      judgment
                                                                    05:36:06 pm ) of conviction recorded

by the learned Judicial Magistrate, Additional Mahila Court in C.C.No.2 of

2014 dated 29.06.2015 is found proper and the same is to be restored.

In the result, this Criminal Appeal is allowed. The judgment of

acquittal recorded by the learned III Additional District and Sessions Judge,

Salem in C.A.No.105 of 2015 dated 06.01.2016 is set aside. The judgment of

conviction recorded by the learned Judicial Magistrate, Additional Mahila

Court in C.C.No.2 of 2014 dated 29.06.2015 is restored.

The learned Judicial Magistrate, Additional Mahila Court, Salem is

directed to issue warrant to Accused 1, 2, 4 and 5/Respondents herein to secure

their presence to undergo the sentence of imprisonment imposed on them vide

judgment dated 29.06.2015 in C.C.No.2 of 2015.

03.03.2025