P.K. Goswami, J.
1. This criminal revision is directed against the judgment of conviction under Section 494 Indian Penal Code and sentence of six months' rigorous imprisonment, passed by the learned Magistrate First Class, Dibrugarh and affirmed by the learned Sessions Judge, Lakhimpur.
2. The prosecution case is that the petitioner married the Opposite Party, Mst. Surjya Baruati, on 14th September, 1962 according to Hindu rites and they were living as husband and wife for some time. A female child was born at wedlock. Thereafter, however, the petitioner deserted Mst. Surjya and married one Manorama Konwar on 8th September, 1965. On these allegations the petitioner was charged under Section 494 Indian Penal Code and convicted and sentenced as stated above.
3. The only point which the learned Counsel for the petitioner urges before me is that the second marriage with Mst. Manorama has not been established by the Prosecution to have been solemnised as provided for under the law and that the conviction under Section 494 Indian Penal Code is, therefore, not tenable. Section 494 Indian Penal Code is in the following terms:
494. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
This offence, which is known in English law as bigamy, is directed against the second marriage. The second marriage, therefore, must be a legally valid marriage so as to come within the mischief of Section 494 Indian Penal Code. In order to appreciate whether the second marriage is void under the law, since the parties are admittedly Hindus, we have to refer to Section 17 of the Hindu Marriage Act, 1955, which is as follows:
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 wife living; and provisions of Sections 494 and 495 of the Indian Penal Code (Act 45 of I860) shall apply accordingly.
Section 17 pointedly refers to solemnization of marriage after the commencement of the Act. Prosecution, therefore, is under an obligation to satisfactorily establish by evidence that the second marriage with Manorama has been solemnized in accordance with law or custom which is applicable to the parties, The parties in this case claim to be Ahoms and they also admit that the form of their marriage is known as 'Saklong'. In dealing with Section 494, Indian Penal Code, the Supreme Court in the case of Bhaurao Shankar v. State of Maharashtra AIR 1965 SC 1564, has observed as follows:
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.
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 the purpose of Section 17 of the Act, that the marriage to which Section 494, I.P.C. 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 the ceremonies prescribed by law or approved by any established custom.
In the case of Kanwal Ram v. Himachal Pradesh Administration AIR 1966 SC 614, their Lordships observed as follows:
In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it, must be proved: Empress v. Pitambur Singh (1879) ILR 5 Cal 566 (FB), Empress of India v. Kallu (1882) ILR 5 All 233, Archbold, Criminal Pleading Evidence and Practice (35th Ed.,) Article 3796, In Kallu's case (1882) ILR 5 All 233 and in Morris v. Miller (1767) 4. Burr 2057 : 98 ER 73, it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case.
It is, therefore, clear that there must be a finding of the Court below in this casa based on the evidence produced by the prosecution that the second marriage has been performed according to the 'Saklong' custom of the parties. It may be stated here that the learned Sessions Judge has not gone into that aspect of the matter and has disposed of this point by merely observing as follows:
While this marriage (referring to the first marriage) subsisted it is admitted by accused-appellant himself that he married Musst. Manorama Konwar, and, as such, he clearly committed the offence under Section 494, I.P.C.
Evidence of the first marriage was given by the prosecution by examining several witnesses and after appreciating that evidence the Courts below came to the conclusion that the first marriage with Musst. Surjya was valid marriage in accordance with the custom of the parties. This being a finding of fact, the petitioner is not entitled to challenge it and even if it were permissible, I am clearly of opinion that the conclusion arrived at by the learned Sessions Judge is perfectly correct and sound. As has been noticed above, the learned Sessions Judge has not discussed any evidence regarding the second marriage. I had therefore to find out what evidence was led by the prosecution on this point. As it appears from the records as well as the judgment of the learned Magistrate, evidence in that regard came only from P. W. 6, whose brief testimony does not refer to the solemnization of the marriage at all. The witness merely stated that the marriage was solemnized according to Ahom custom, that is 'Saklong', It is not at all clear from the evidence what are the ceremonies which are performed in connection with this 'Saklong' marriage. My attention has been drawn to Gait's 'History of Assam', 1963 revised edition, where the following description appears relating to this type of marriage:
Ahoms who embraced Hinduism observed Hindu marriage ceremony. The real Ahom rite is called Saklong, The detailed descriptions of their ceremony are given by P. R. Gurdon thus: 'The bridegroom sits in the courtyard; the bride is brought in, and she walks seven times round the bridegroom. She then sits down by his side. After this both rise and proceed to a room screened off from the guests. Here one end of the cloth is tied round the neck of the bride, the other being fastened to the bridegroom's waist. They walk to a corner, where nine vessels full of water have been placed in plantain leaves, the Shiring Phukan (or master of the ceremonies) reads from the Saklang puthi; and three cups containing milk, honey and rice frumenty, are produced, which the bride and the bridegroom have to smell. Some uncooked rice is brought in a basket, into which, after the bride and the bridegroom have exchanged knives, rings are plunged by bride and bridegroom respectively, unknown to one another, it being the intention that each should discover me other's ring and wear it on the finger. The exchange of the knives and rings is the binding part of the ceremony. Bride and bridegroom are then taken outside and do sewa (homage) to the bride's parents and to the people assembled, and the marriage is complete.
There is no evidence to show that any of the material ceremonies, which are necessary to be performed in a Saklang marriage, have been observed, In the absence of any evidence in that regard, mere admission by the accused that he married Mst. Manorama will not satisfy the ingredients which are necessary to be established by the prosecution in an offence under Section 494 Indian Penal Code. The offence under Section 494 Indian Penal Code has, therefore, not been proved in this case and as such the accused is entitled to acquittal.
4. In the result, the petition is allowed and the conviction and sentence are set aside and the accused-petitioner is acquitted. The petitioner is discharged from his bail bond.