Skip to content


Emperor Vs. Bai Ganga - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 363 of 1916
Judge
Reported in(1917)19BOMLR56
AppellantEmperor
RespondentBai Ganga
Excerpt:
.....to the complainant in about 1898 ; but the marriage was not consummated. shortly afterwards, the complainant proceeded to kimberly in south africa, and during his absence there, he wrote neither to his relatives nor to his wife, nor did he furnish her with maintenance. ultimately, the caste of the parties'gave a farguti to accused no. 1, on the strength of which she contracted a remarriage with accused no. 2. the accused were, on these facts, convicted of an offence punishable under section 494 of the indian penal code. on appeal:-- ;that the caste panch having no authority to grant the fanjati, it was inoperative and the original marriage between accused no. 1 and the complainant remained undissolved ; and that, therefore, the subsequent marriage between accused nos. 1 and 2 fell..........a bench of this court said : 'the court does not recognize the authority of the caste to declare a marriage void, or to give permission to a woman to remarry.' that principle, thus announced in 1876, was reiterated by another decision of this court in 1915: see keshav v. bai gandi . to that principle i think that we should still adhere. and the result is that, the paneli having no authority to grant the fargati which they did grant, that fargati is inoperative and the original marriage between ganga and the complainant remained undissolved and in full force. that being so the subsequent marriage between the 1st and 2nd accused falls within the prohibition of section 494 of the code and the conviction must be confirmed.4. at the same time having regard to the position of the parties and.....
Judgment:

Batchelor J.

1. The appellants in this case have been convicted under Section 494 of the Indian Penal Code which provides punishment for marrying again during the lifetime of a husband in all cases where such marriage is void by reason of its taking place during the life-time of such husband.

2. The facts upon which the conviction has proceeded are not disputed and are these:--

The 1st accused Ganga was married to the complainant about 18 years ago, she then being about six years old and the complainant being about 9. The marriage was not consummated and shortly after it the complainant proceeded to Kimberly in South Africa for the purpose of earning his livelihood. During his absence there, though he did write to his own uncle, it appears that he did not communicate with his wife Ganga, nor did he furnish her with maintenance. Ultimately in the absence of the husband a fargati was obtained by the caste who took a sum of Rs. 110 from the accused No. 3 and the palla, ornaments. Upon the faith of this faregati accused No. 1 remarried with the accused No. 2 on the 6th of June 1916. Four days later the original husband returned from Kimberly. The only question is whether the second marriage was void by reason of its taking place during the life-time of the first husband, the complainant.

3. No doubt, as Mr. Strangman has urged, the circumstances appearing in this particular case seem at first sight to be rather stronger in the wife's favour than the circumstances which underlay the custom sought to be set up in other cases which this Court has had to consider, as, for instance, the custom alleged in Reg. v. Karsan Goja and Reg v. .Bai Rupa (1864) 2 B. H. C. R. 117. It appears to me, however, that it is inexpedient to examine with any great nicety the particular form of custom which may be alleged in any particular case, and that it is expedient to abide by the general principle which this Court has long since adopted and consistently followed. That principle was stated in Reg. v. Sambhu Rayhu so far back as 1876, and in that case a bench of this Court said : 'The Court does not recognize the authority of the caste to declare a marriage void, or to give permission to a woman to remarry.' That principle, thus announced in 1876, was reiterated by another decision of this Court in 1915: see Keshav v. Bai Gandi . To that principle I think that we should still adhere. And the result is that, the Paneli having no authority to grant the fargati which they did grant, that fargati is inoperative and the original marriage between Ganga and the complainant remained undissolved and in full force. That being so the subsequent marriage between the 1st and 2nd accused falls within the prohibition of Section 494 of the Code and the conviction must be confirmed.

4. At the same time having regard to the position of the parties and the possibility that they believed that they would be legally justified in acting upon the authority which the Panch arrogated to itself, we think the sentence may be reduced and we do reduce it to that which the appellants have actually suffered,

Shah J.

5. I am of the same opinion.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //