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Emperor Vs. Manju Hanumant Naik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 579 of 1947
Judge
Reported in(1948)50BOMLR379
AppellantEmperor
RespondentManju Hanumant Naik
DispositionAppeal dismissed
Excerpt:
.....penal code (act xlv of 1860), section 404-criminal procedure code (act v of 1898), section 198-bigamous marriage contracted by accused-validity of such second marriage whether necessary to constitute an offence-whether complaint under section 198, criminal procedure code, necessary.;the law with regard to bigamous marriage is that it is not necessary in order to commit an offence that a valid second marriage should be solemnised. it is enough if the parties accused of bigamous marriage go through a form of marriage when the first marriage is still subsisting.;every offence falling under the bombay prevention of hindu bigamous marriages act, 1946, can be taken cognizance of under the provisions of the criminal procedure code, 1898, without any complaint being made by any person..........first class, honavar. accused no. 1 was charged under section 3 of the bombay prevention of hindu bigamous marriages act, 1946, read with section 494 of the indian penal code, and accused no. 2 under section 6 of the same act.2. the prosecution case was that accused no. 1 contracted marriage on or about may 17, 1947, with accused no. 2 when he had another wife living. it is to be borne in mind that the fact that accused no. 1 married accused no, 2 is not disputed or challenged by the defence, nor is it disputed or challenged that accused no. 1 has another wife living. the only question that falls for determination in this appeal is, whether accused no. 1 married accused no. 2 on may 17, 1947, or at least some time after the new act came into force, which was on november 6, 1946. [his.....
Judgment:

M.C. Chagla, C.J.

1. This is an appeal from an order of acquittal passed by the Resident Magistrate, First Class, Honavar. Accused No. 1 was charged under Section 3 of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, read with Section 494 of the Indian Penal Code, and accused No. 2 under Section 6 of the same Act.

2. The prosecution case was that accused No. 1 contracted marriage on or about May 17, 1947, with accused No. 2 when he had another wife living. It is to be borne in mind that the fact that accused No. 1 married accused No, 2 is not disputed or challenged by the defence, nor is it disputed or challenged that accused No. 1 has another wife living. The only question that falls for determination in this appeal is, whether accused No. 1 married accused No. 2 on May 17, 1947, or at least some time after the new Act came into force, which was on November 6, 1946. [His Lordship then discussed the evidence and proceeded:]

3. We, therefore, feel that in view of this strong circumstantial evidence the prosecution had established that accused Nos. 1 and 2 got married some time about May 17, 1947, and in view of this evidence, the evidence of the Pujari and of the two band-men also receives added importance and significance. As we have already pointed out, by itself that might not establish anything, but read in conjunction with other evidence, that evidence clearly goes to show that those ceremonies were performed and the band-men were employed not in connection with any Puja but in connection with the marriage which had taken place about that time.

4. Mr. Shanbhag has taken the point that the prosecution case was that this marriage was contracted according to the Gandharva form and that that form is obsolete today under Hindu law, and that, therefore, no marriage at all was in fact contracted and, therefore, no offence was committed. Now, it is important to note that both the accused admitted having been married. They do not say that they have not contracted marriage, and the law with regard to bigamous marriage is clear that it is not necessary in order to commit an offence that a valid second marriage should be solemnised. It is enough in law if the parties accused of bigamous marriage go through a form of marriage when the first marriage is still subsisting.

5. The other point raised by Mr. Shanbhag is that the prosecution is bad inasmuch as there is no proper Complaint as required by Section 198 of the Criminal Procedure Code. That section provides that no Court shall take cognisance of an offence falling under, among other sections, Section 494 of the Indian Penal Code except upon a complaint made by some person aggrieved by such offence, and it is common ground that in this case there is no complaint by any person aggrieved. The answer to that point lies in the provisions of the new Act, Section 9 of the Act provides that the offences under that Act shall be cognizable. Therefore, every offence falling under the new Act can be taken cognisance of under the provisions of the Criminal Procedure Code without any complaint being made by any person aggrieved by such offence. Whereas Section 198 of the Code restricts cognizance of certain offences only to cases where a complaint by private party was made, offences under the new Act, although they may fall under Section 494, Indian Penal Code, have been made cognizable without a complaint of a private party. Mr. Shanbhag has sought to argue that Section 9 only refers to Sections 6 and 7 where several offences arc created by the Act. These are for solemnising bigamous marriage, and also for persons having charge of minors concerned in bigamous marriage. Now, Section 5 provides ;

Notwithstanding any law, custom or usage to the contrary, whoever not being a minor contracts a bigamous marriage which is void under Section 4 shall be deemed to have committed an offence under section 404 of the Indian Penal Code.

And Section 4 of the Act makes bigamous marriages void. It is clear, therefore, that before the passing of this Act a Hindu could contract a polygamous marriage and would not be guilty of an offence under Section 494. It is only this Act which makes the second or bigamous marriage void and thereby constitutes it an offence under Section 494 of the Indian Penal Code. It is true that this Act does not prescribe the penalty for that offence because under Section 5 the offence under this Act is deemed to be an offence under Section 494. But even so, it is by reason of this Act and by reason of second marriage being made void that an offence is constituted under Section 494 of the Indian Penal Code. Besides, one has only got to look at the language of Section 8 and the language of Section 9 of the Act to realise that the offences under this Act are not only offences under Sections 6 and 7 but also the offence constituted under Section 5. Section 8 provides:

Notwithstanding anything contained in section 199 of the Code of Criminal Procedure, 1898, no Court other than that of a Presidency Magistrate or a Magistrate of the First Class shall take cognisance of or try any offence punishable under Section 6 or 7 of this Act.

Now, the reason for this section was that but for this section offences under Sections 6 and 7 would have been triable by even second class and third class Magistrates. Therefore, the law provides that offences under Sections 6 and 7 should be tried only by Presidency Magistrates or Magistrates of the First Class. But the important thing to note is that Section 8 speaks of any offence punishable under Section 6 or 7 of this Act which implies that there are other offences under this Act besides those under Sections 6 and 7. If Mr. Shanbhag's argument was sound, then the language used in Section 8 would be similar to that used in Section 9, viz. that any offence under this Act instead of specifying offences under Sections 6 and 7. Therefore, it is clear that while Section 8 deals only with offences under Sections 6 and 7, Section 9 deals with all the offences under the Act and the most important offence created under the Act is the offence of bigamy referred to in Section 5 of the Act. We, therefore, think that when a second marriage is contracted by a Hindu which has been rendered void by this Act and which is made an offence under Section 494 of the Indian Penal Code, no private complaint is necessary as contemplated by Section 198 of the Criminal Procedure Code. That offence has been made cognisable by Section 9 of the Act.

6. The result will be that the order of acquittal will be set aside and the accused will be convicted. As the marriage has been declared void under the Act and this is a new piece of legislation and public opinion has yet to be educated, we think the ends of justice will be met if accused No. 1 is sentenced to one month's simple imprisonment and accused No. 2 to one day's simple imprisonment.

Bhagwati, J.

7. I agree.


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