C. Sanjeeva Row Nayudu, C.J.
1. This revision petition is directed against a conviction of the petitioner Trailokya Mohan Nath on a charge under Section 494, Indian Penal Code and a sentence of three months' rigorous imprisonment and a fine of Rs. 100, in default S.I. for one and a half months, he having performed a second marriage with Sefali Debi when his wife Subarna Bala Nath is living. Sefali Debi was also an accused in the case, but she has been acquitted by the learned Sessions Judge.
2. The case of the prosecution was that the petitioner having already a wife living by name Subarna Bala Nath, married a second time one Sefali Debi and thus committed the offence of bigamy punishable under the Indian Penal Code read with the provisions of the Hindu Marriage Act, 1955.
3. The only point which has been seriously pressed before us by Mr. Chaudhuri, the learned Counsel for the petitioner, is that unless it in established that the second marriage has been duly and properly solemnised in accordance with the customs applicable to the parties, the offence under Section 494, Indian Penal Code, cannot be said to have been established. He points out that as the legality of the conviction rests on the validity of the second marriage and as the same has not been established in this case, the petitioner is entitled to an acquittal.
4. It is true that under the provisions of the Hindu Marriage Act, one of the conditions of a valid Hindu marriage is that it should be solemnised between two Hindus, neither party having a spouse living at the time. Section 17 of the Hindu Marriage Act provides:
Any marriage between two Hindus solemnised after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly. The relevant provision of Section 494, Indian Penal Code, provides:
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.
5. Mr. Chaudhuri has taken us through the evidence in the case in support of his contention that there is no proof of a valid marriage. In support of his contention he placed reliance on two decisions of the Supreme Court: (1) : 1965CriLJ544 Bhaurao Shankar v. State of Maharashtra and (2) : 1966CriLJ472 , Kanwal Ram v. Himachal Pradesh Administration. In the former case their Lordships of the Supreme Court held on the evidence before them in that case that the second marriage was not solemnised in accordance with law and, therefore it was not valid. They held that it the marriage is not a valid one according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises, and if the marriage is not a valid marriage, it is no marriage in the eye of law. There is a discussion in the judgment regarding the solemnisation of the marriage in accordance with law. Their Lordships accepted the defence that solemnising the marriage means solemnising the marriage with proper ceremonies. On the facts of that case the alleged Gandharva marriage is said to have taken place but not to have been performed in accordance with the customs and completing the ceremonies that are required. This decision is not of much assistance to us because it rests on the facts of that case and we have to examine what the evidence is in support of the second marriage.
6. We notice that the petitioner himself in his statement under Section 342, Criminal Procedure Code, had admitted that he did not marry Sefali Debi during the lifetime of Subarna Bala Nath, whom he married first. It may be useful to quote the question and the answer:
Q. - What is your defence on the allegation brought against you that you have married Sefali during the lifetime of your married wife on 25.9.1960?
Ans. - Subarnabala is my wife and complainant in this case. During the lifetime of my wife I have married Sefali.
The answer is obvious, because the main point for consideration in the criminal case is whether the offence of bigamy had been committed. In response to the question, which is very simple, the petitioner admitted that he did marry Sefali during lifetime of his wife Subarnabala. This admission does not stand alone. There is the evidence of P.W. 5 Sailaza Mahanta the family priest of Gopal Nath, father of Sefali, who spoke of the performance of the marriage between the petitioner and Sefali. P.W. 5 admitted to have performed the marriage of the petitioner with Sefali. He stated that he was the family priest of Gopal Nath. He said that the marriage ceremony was peacefully held and nobody protested. The evidence of this witness, which is corroborated by the evidence in the case, receives further support from the evidence of D.W. 1 Nalini Kanta Dey, who stated as follows:
Accused Trailokya is a Gram Sevak. H6 was at Moina for about a year in this quarter. Accused was at Hafania before coming to Moina. When he shifted to Moina he was accompanied by his wife Subarna. After that Trailokya again married for second time...after two months of his arrival at Moina. He married the daughter of accused Gopal Nath.
He further said in cross-examination that he knew Sefali the second wife of Trailokya Nath and that she was living with Trailokya now as bis wife.
7. Another significant point to be noticed is that nowhere in the cross-examination the stand is taken by any of the witnesses that the second marriage was invalid. The petitioner throughout has claimed that there was a valid marriage between him and Sefali. The circumstances of the case and the evidence adduced in the case seem to be similar to the case of P. Mutyala Paradehi v. P. Subbalakshmi AIR 1962 Andh Pra 311. There the question of the validity of the second marriage also came up for consideration. The following observations which seem to be pertinent to this case, may be quoted:
The law as conceived in the Evidence Act regarding proof and presumption has been made applicable both in regard to the legality of a marriage which has in tact taken place and also with regard to the performance of ceremonies. This principle finds statutory recognition in Section 7 of the Hindu Marriage Act.
A marriage cannot be proved merely by statements which relate to the existence of any relationship or by the opinion of any person given out or even expressed by conduct as to the existence of such relationship of any person although that person has special means of knowledge of the subject; or by the admissions made by the parties to the marriage who may at times be actuated by ulterior motives, but, if, in addition thereto or independently, any evidence of parents of the parties regarding celebration or solemnisation of a marriage is available, it would go a long way in establishing the factum of marriage.
The absence of cross-examination of the witnesses for the prosecution who deposes as to the factum is a material consideration which goes to establish that the evidence as to the fact of marriage is undisputed; so also, it is not possible to question the validity of a marriage without disputing or impugning the fact in some way or other in the cross-examination. When there is celebration or solemnisation of a marriage which has been intended by the parties to Be binding on each other and the form of it has not been wholly opposed or against the customs of the community or the caste to which the parties belong, the presumption that the ceremonies were complete and the marriage is legal arises, as on the supposition that it is possible that after a consideration of the marriage before it the Court can believe that the marriage tie exists and has therefore been proved. The reason is that the intention of the parties, when patent, is not to be easily negatived by merely taking into account subsequent denials of the parties or the willingness to take advantage of one's own purposeful remissness, or because others question it out of questionable motives, but the presumption of the marriage can be rebutted only by strong, satisfactory arid conclusive evidence.
8. Such evidence in this case is totally lacking. On the other hand, the parties proceeded to the trial in the case in the Court below en the footing that t valid marriage has been solemnised and this is the basis of the admission made by the accused petitioner under Section 342, Criminal Procedure Code, which admission, in our opinion, is fully relevant and can be relied on.
9. In the result, therefore, there is no substance in this revision petition, which fails and is dismissed.
10. The bail bond should be cancelled and the accused petitioner rearrested to serve out the sentence.