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 lifetime of such husband.
2. The facts upon which the conviction has proceeded are not disputed and are these:
3. The first accused Ganga was married to the complainant about eighteen years ago, she then being about six years old and the complainant being about nine. 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 fargati accused No. 1 re-married 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 lifetime of the first husband, the complainant.
4. 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 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 Raghu 1 B. 347 ; 1 Ind. Jur. 380 ; 1 Ind. Dec. 231 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 re-marry.' That principle, thus announced in 1876, was reiterated by another decision of this Court in 1915: see Keshav Hargovan v. Bai Gandi 29 Ind. Cas. 952 ; 17 Bom. L.R. 584 ; 39 B. 538. To that principle I think that we should still adhere. And the result is that the panch 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 first and second accused falls within the prohibition of Section 494 of the Code and the conviction must be confirmed.
5. 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.
6. I am of the same opinion.