H. Deka, J.
1. This is an appeal against an order passed by a First Class Magistrate of Barpeta acquitting the accused Mokheswar Khataniar of a charge under Section 494, I.P. Code. The case for the prosecution was that the accused Mokheswar Khataniar married a girl by the name of Hironbala (P.W. 3), daughter of one Keshab Chandra Das, in the year 1955, and that the husband and the wife lived together for about a year, after which they fell out, and the girl went away to her parents' place.
It was further alleged that there was some misunderstanding between the father-in-law and the son-in-law and on 13-3-58, the accused Mokheswar Khataniar married another girl, Musst. Bidyutiprabha daughter of one Ananta Chaudhuri, according to Hindu rites, all the parties concerned being Hindus. A maternal uncle of Hironbala lodged this complaint on 26-3-58 in the Court of the Magistrate at Barpeta on behalf of Hironbala who was alleged to be a purdanashin lady.
The learned Magistrate issued summons under Section 494, I.P. Code, read with Section 17 of the Hindu Marriage Act (Act XXV of 1955). The prosecution examined as many as six witnesses, including Hironbala, the wife of the accused, her father and her maternal uncle Ramesh Chaudhuri (P.W. 1) who filed the complaint. P.W. 4 Kanak Dev Sarma Nayasastri was a priest who performed the marriage of the accused with Hironbala, and P.W. 5 was a priest who performed the marriage between the accused and the daughter of Ananta Chaudhuri on 13-3-58.
2. The accused pleaded not guilty, and his defence, inter alia, was that the reluctance of his former wife Hironbala to come and stay with him and the intransigence on the part of her father, Keshab Ch. Das (P.W. 2), to send her to his place, amounted to a severance of the marital tie, and he was, therefore, free to marry for the second time, which he did.
3. The learned Magistrate who tried this case considered that the evidence showed clearly that there was a divorce between the first wife and the husband (accused) and that the separation was complete. He further took it as an excuse for the husband to marry for the second time because of the insult he received at the hands of the father-in-law who refused to send the wife to the place of the husband (accused). It was urged on behalf of the complainant appellant that there was no evidence of any divorce and that there was no severance of the marriage tie between the accused and his first wife.
The learned advocate for the respondent could not place any evidence worth the name before us which would show that there was actually a divorce, which was valid in the eye of law and which was actually acted upon. The evidence rather makes it clear that it was due to the difference between the parties that the husband, after waiting for some time, chose to marry for the second time, and he did actually marry on 13-3-58 another girl after the Hindu Marriage Act (Act XXV of 1955) had come into force. On the facts, therefore, it is clear that an offence of Bigamy was committed under Section 494, I.P. Code read with, Section 17 of Act XXV of 1955 (Hindu Marriage Act).
4. The only objection that was taken as to the validity of this proceeding was that the complaint was not filed by the girl or the person aggrieved, as is the requirement of Section 198, Cri.P.C. which says:
No Court shall take cognizance of an offence falling under Chap. XIX or Chap. XXI of the Indian Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence.
The proviso to that section is in these terms:
Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf.
In this particular case, leave was obtained by the uncle on behalf of the girl Hironbala who was not, of course, a minor. The learned advocate for the respondent argued that she having appeared in Court to depose, it could not be said that she was not used to appear in public. But, 'to appear in pubic' and 'ought not to be compelled to appear in public' are two different things. If the girl would not of her own accord appear in Court, possibly her status would justify her not appearing in public. Therefore, this objection is not very serious, and the leave once obtained for filing the complaint, is valid in the eye of law. This contention, therefore, has not much force.
5. We are, therefore, of the opinion that the accused is liable to be convicted under Section 494, I.P. Code, on the facts as proved and admitted. But having regard to the circumstances of the case, we think a light sentence would meet the ends (ft justice. It is also clear that there was some misunderstanding between the parties, and that the father of the girl was to some extent responsible for not sending her to her husband's place. We, therefore, convict the accused under Section 494, I.P. Code, and sentence him to simple imprisonment for one week and a fine of Rs. 200/-, in default, further simple imprisonment for two weeks.
C.P. Sinha, C.J.
6. I agree.