Vaishakha vs State Of Rajasthan ...
2023 Latest Caselaw 7595 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 149/2019

Vaishakha D/o Sh. Hari Ram, Aged About 22 Years, B/c Bhookhar Jat, Chak 3 A, Suthar Colony, Teke Wali Gali, Sri Ganganagar.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Monika @ Mohini W/o Sh. Dharamveer, B/c Jat, Kheru Wala , Tehsil Sardulshahar, Distt. Sri Ganganagar

----Respondents

For Petitioner(s) : Mr. Umesh Kant Vyas For Respondent(s) : Ms. Anita - PP

HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Order REPORTABLE

22/09/2023

1. The present criminal misc. petition under Section 482 Cr.P.C.

has been filed by the petitioner against the order dated

23.08.2018 passed by learned Additional Sessions Judge No.1, Sri

Ganganagar (hereinafter referred to as 'revisional court') in Cr.

Revision No.116/2017, whereby, learned revisional court

dismissed the revision petition filed by the petitioner against the

order dated 02.02.2016 passed by the learned Additional Chief

Judicial Magistrate, Sadulshahar, District Sri Ganganagar

(hereinafter referred to as 'trial court') in Cr. Case No.81A/2016,

whereby, learned trial court took cognizance against the petitioner

for the offences under Sections 494 and 120-B IPC.

2. Brief facts of the case are that a complaint was filed by

respondent No.2 - Monika @ Mohini on 16.01.2014 stating therein

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that on 04.04.2002 she got married to Dharamveer with Hindu

rites and rituals. After marriage respondent No.2 went to her in-

law's house at Kishanpura. Out of the said wedlock she gave birth

to a daughter Shagun. Accused Dharamveer, Rameshwari Devi

and their family members (in-laws) treated the respondent No.2

with cruelty for dowry and in the year 2011 she was thrown out of

the house. After some time father of respondent No.2 came to

know that accused Dharamveer got married to Vaishakha

petitioner herein.

3. A complaint was filed before the trial court. After recording

the statement of respondent No.2 under Section 200 Cr.P.C., the

complaint under Section 202 Cr.P.C. was sent for investigation to

the concerned Police Station, Sadulshehar. After investigation a

report was submitted.

4. The trial court after taking into consideration the statements

of witnesses and perusing the investigating report observed that

prima facie it is established that accused Dharamveer got married

to Viashakha and by the impugned order dated 02.02.2016 took

cognizance against accused Dharamveer, Vaishakha and Hariram

under Sections 494 & 120(B) I.P.C. and summons were issued.

5. Aggrieved against the said order dated 02.02.2016 passed

by the trial court a criminal revision under Section 397 Cr.P.C. was

filed by Vaishakha before the revisional court.

6. The revisional court by the impugned order dated

23.08.2018 dismissed the criminal revision.

7. Learned counsel for the petitioner would submit that the

complainant has to prove that the second marriage has in fact

taken place and the said factum of the second marriage has to be

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proved like any other fact with acceptable legal evidence. He

contends that there is absolutely no evidence to prove the factum

of the second marriage and also that the said second marriage

was solemnized by observing all the essential ceremonies of a

valid marriage. He then contends that the evidence recorded by

the Presiding Officer is not valid evidence in proof of the factum of

the second marriage or that the marriage was performed with

essential ceremonies required to establish a valid marriage as

required under Section 494 IPC to prove the offence of bigamy. He

also contends that the contents of the complaint do not disclose as

to when the marriage took place, where the marriage took place

and in what form the said marriage took place and what are the

essential ceremonies that were observed at the time of the alleged

second marriage. He submits that there is no evidence at all in

proof of the factum of the second marriage. Therefore, there is

absolutely no legal evidence on record to establish that any

offence punishable under Section 494 IPC was committed by the

revision petitioner. So, there was no authenticated material before

the trial court to take cognizance under Section 494 IPC against

the accused petitioner. Hence the impugned order of the revisional

court as well as the order of cognizance by the learned trial court

are not sustainable.

8. Before adverting to the same, it is apt to consider Section 5

of the Hindu Marriage Act, which contains essential conditions of a

Hindu marriage, Section 7 which deals with ceremonies of a Hindu

marriage and Section 17 which makes a marriage between two

Hindus solemnized is void if at the date of such marriage either

party had a husband or wife living and making the said second

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marriage an offence of bigamy punishable under Section 494 IPC.

9. As per Section 5 of the Hindu Marriage Act, a marriage may

be solemnized between any two Hindus, if the conditions laid

down in the said Section are fulfilled. Five conditions are

enumerated therein to make a marriage between two Hindus a

valid marriage. We are only concerned with the first condition

which is relevant in the present context relating to a bigamous

marriage. The first condition reads as follows:-

"Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) Neither party has a spouse living at the time of the marriage;

(ii)...

(iii)...

(iv)...

(v)...."

10. Therefore, it is evident that if a party to the marriage has a

spouse living at the time of marriage, the said marriage cannot be

held to be a valid marriage. Section 5 has to be read with Section

17. Section 17 says that any marriage between two Hindus

solemnized after the commencement of this Act is void if at the

date of such marriage either party had a husband or a wife living.

So, the second marriage performed or solemnized while the party

to the said marriage had a husband or a wife living at that time,

would not only be void under Section 17 of the Hindu Marriage Act

but also attracts the provisions of Sections 494 and 495 IPC

punishable for commission of the offence of bigamy. Section 7

deals with ceremonies to be observed at the time of solemnization

of a Hindu marriage. It says that a Hindu marriage may be

solemnized following the customary rites and ceremonies of either

party thereto and clause (2) thereof says that where such rites

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and ceremonies include the Saptapadi, the marriage becomes

complete and binding when the 7th step is taken. This Section 7

assumes significance in the context which says that a Hindu

marriage is to be solemnized in accordance with the customary

rites and ceremonies of either party thereto. So, for a Hindu

marriage to be valid has to be solemnized in accordance with the

customary rites and ceremonies of either party thereto. As per the

settled law, even to prove a second marriage between two Hindus

to prosecute them for the offence of bigamy punishable under

Section 494 IPC, it shall be proved that the second marriage is

also solemnized in accordance with the customary rites and

ceremonies of either party thereto. In other words, both the

marriages i.e. the first marriage and the second marriage must be

valid marriages and must be proved that the second marriage was

also performed or solemnized following the customary rites and

ceremonies.

11. A three-Judges Bench of Hon'ble Supreme Court in the case

of Bhaurao Shankar Lokhande v. State of Maharashtra : 1965 AIR

1564, 1965 SCR (2) 837 held that the marriage between two

Hindus is void in view of Section 17 if two conditions are satisfied:

(i) the marriage is solemnized after the commencement of the

Act; (ii) at the date of such marriage, either party had a spouse

living. It is further held that the word 'solemnize' means, in

connection with a marriage, "to celebrate the marriage with

proper ceremonies and in due form", according to the Shorter

Oxford Dictionary. It follows, therefore, that unless the marriage is

"celebrated or performed with proper ceremonies and due form",

it cannot be said to be 'solemnized'. It is therefore, essential, for

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the purpose of Section 17 of the Act, that the 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 the intention

that the parties be taken to be married, will not make them

ceremonies prescribed by law or approved by any established

custom. It is further held at para.5 of the said judgment as

follows:-

"We are of the opinion that unless the marriage which took place between appellant No. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been 'solemnized' and therefore appellant No.1 cannot be held to have committed the offence under Section 494 IPC."

12. At para.12 of the said judgment it is held as follows:-

"We are therefore of the opinion that the prosecution has failed to establish that the marriage between appellant No.1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by Section 7 of the Act. It was certainly not performed "in accordance with the essential requirements for a valid marriage under Hindu law. It follows therefore that the marriage between appellant No.1 and Kamlabai does not come within the expression "solemnized marriage" occurring in Section 17 of the Act and consequently does not come within the mischief of Section 494 IPC even though the first wife of appellant No.1 was living when he married Kamlabai in February 1962."

13. In the case of A. Subash Babu v. State of A.P. : Criminal

Appeal No. 1428/2011 Hon'ble Supreme Court held that to prove

an offence of bigamy punishable under Section 494 IPC, it is

essential to prove that the second marriage was performed while

observing all essential ceremonies of marriage.

14. In the case of Gopal Lal v. State of Rajasthan : 1979 AIR 713

Hon'ble Supreme Court again opined that in order to bring out the

provisions of Section 494 IPC, both the marriages of the accused

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must be valid in the significance that the necessary ceremonies

required by the personal law must have been duly performed.

Hon'ble Apex Court further held that the essential ingredients of

the offence under Section 494 IPC are (i) that the accused spouse

must have contracted the first marriage; (ii) that while the first

marriage was subsisting the spouse concerned must have

contracted a second marriage; and (iii) that the second marriage

was valid one in the sense that necessary ceremonies required by

law or by custom had been actually performed.

15. Thus, from the exposition of law made in the aforesaid

judgments, the legal position is manifest that in order to prove an

offence of bigamy under Section 494 IPC, firstly, the factum of the

second marriage has to be established and proved like any other

fact with acceptable legal evidence; secondly, it has to be proved

that the said second marriage was solemnized in due form as per

the custom and ceremonies prevailing in the said community; and

thirdly, it has to be proved that both i.e. the first marriage and the

second marriage are valid marriages solemnized as per the

ceremonies prevailing in the community.

16. If the second marriage is proved to be solemnized as per the

ceremonies prevailing in the community and if it is found to be a

valid marriage, then Section 17 of the Hindu Marriage Act makes

the said second marriage void which took place during the lifetime

of the spouse of one of the parties to the said marriage and it also

makes the said second marriage an offence punishable under

Section 494 IPC. Therefore, it is to be now ascertained from the

evidence that was examined by the trial court and collected by the

Enquiry Officer under Section 202 Cr.P.C. whether there is any

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prima facie evidence to establish the factum of the second

marriage i.e. that the second marriage has taken place. If so,

whether it was solemnized in due form as per the ceremonies

prevailing in the said community to hold that it is a valid marriage

or not, and whether any offence of bigamy punishable under

Section 494 IPC was committed or not.

17. This Court has meticulously gone through the contents of the

complaint as well as the statements of the witnesses AW-1 Vijay,

and AW-2 Ramkrishna and the statements of the witnesses

recorded under the enquiry of Section 202 Cr.P.C. to ascertain

whether there is evidence in proof of the factum of the second

marriage or not i.e. whether the second marriage was solemnized

or not and also to ascertain if it was solemnized, whether it was

solemnized as per the ceremonies prevailing in the caste custom

as required under Section 7 of the Hindu Marriage Act to find out

whether it is a valid marriage or not.

18. A reading of the complaint shows that it is devoid of any

evidence in proof of factum of the alleged second marriage. The

complainant did not aver as to when the said second marriage

between petitioner and Dharamveer took place and where it took

place and how it was performed and what is the form of marriage

and what were the ceremonies observed in solemnizing the said

marriage. Since these are the essential requirements and

ingredients required to prove an offence of bigamy punishable

under Section 494 IPC, as per the law laid down by Hon'ble Apex

Court in the above-cited judgments, the complainant has to

invariably establish the said facts and place prima facie evidence

to establish the same even for the purpose of taking cognizance to

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that effect against the accused to try them for the said offence.

There is absolutely no evidence on the record to prima facia

indicate the factum of the second marriage. No evidence is

produced to show that the second marriage was in fact

solemnized. So also, no evidence was produced to show that the

second marriage was solemnized by observing the essential

ceremonies prevailing in the said community to hold that it was

also a valid marriage like the first marriage as required under law.

Evidence is totally lacking in respect of these material particulars.

Therefore, this Court has no hesitation to hold that there is no

prima facie evidence much less an iota of evidence on record in

proof of the factum of the second marriage and also in proof of

the essential ceremonies said to have been observed in

solemnization of the second marriage.

19. The three-Judge Bench judgment of Hon'ble Apex Court in

Kanwal Ram v. Himachal Pradesh Administration : 1966 AIR 614,

1966 SCR (1) 539 held at para.7 of the judgment as follows:-

"......Now the statement admitting the second marriage by these persons is certainly not evidence of 'the marriage so far as Kanwal Ram and Seesia are concerned; they did not make it. Nor do we think, it is evidence of the marriage even against Kubja....."

20. It is further held:-

"....Secondly, it is clear that in law such admission is not evidence of the fact of the second marriage having, taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it, must be proved..."

21. In fact, Section 50 of the Evidence Act reads as under:-

"50. Opinion on relationship, when relevant.--When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

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Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."

22. The aforesaid Section demonstrates that an opinion as to the

relationship of one person to another, expressed by conduct, as to

the existence of such relationship, of any person who, as a

member of the family or otherwise, has special means of

knowledge on the subject is a relevant fact.

23. Therefore, the evidence of AW-1 Vijay, AW-2 Ramkrishna

AW-3 Vedprakash and AW-4 Monica and the statements of

witnesses recorded in the enquiry conducted under Section 202

Cr.P.C, namely Rameshwari Devi, Dharmpal, Rameshwar, Dayalo

Saiyed Ali Munshaf Ali are clearly inadmissible in evidence in proof

of the factum of the second marriage between petitioner and

accused Dharmveer as per the proviso to Section 50 of the

Evidence Act.

24. There is definitely no other satisfactory legal evidence on

record to prove that any bigamous marriage as required under

Section 494 IPC and Section 17 of the Hindu Marriage Act was

solemnized between the petitioner and the other summoned

accused Dharmveer.

25. It is already noticed supra that for the limited purpose of

ascertaining whether there is sufficient ground to proceed against

the accused to try the accused for the offence, the Court can

weigh and sift the evidence and if the evidence relied on by the

complainant is weighed and sifted for the said limited purpose, as

discussed supra, the said evidence is not sufficient to hold that

there is sufficient ground to proceed against the petitioner.

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The learned trial court and so also the revisional court did not

consider the factual aspect in terms of the essential elements

ingrained under Section 494 IPC for initiating the criminal

proceedings against the petitioner and other summoned accused.

26. Corollary to the above, the criminal miscellaneous petition is

allowed and the impugned order dated 23.08.2018 passed by the

revisional Court is set aside and further, the proceedings initiated

by the trial court vide order dated 02.02.2016 against the present

petitioner as well as the other accused are quashed.

(PRAVEER BHATNAGAR),J AK Chouhan/-

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