1. This is a revision petition against the order in Criminal Revision petition 74/48-49 on the file of the 1st Additional Sessions Judge, Bangalore, confirming the order of discharge passed by the City Magistrate in C.C. No. 1157 of 1948-49 on the file of his Court.
2. The complaint is one of bigamy, an offence punishable under Section 494, Penal Code. The accused a Hindu by birth was, after con-version into Christianity married to the complainant a Christian by birth. Both of them were later on converted into Hinduism by Aryasamaj and he then married a Hindu girl. The Magistrate discharged the accused holding that his second marriage after he was converted into Hinduism does not amount to an offence and this view was upheld in revision by the Sessions Judge. It is against this order of the Sessions Judge that the complainant has filed this revision petitions.
3. The offence punishable under Section 494, Penal Code is based on the law of England. According to 24 and 25 Vict. Order 100, S. 57:
'whoever, being married shall marry any other person during the life of the former husband or wife shall be guilty of felony.'
It will be seen that according to this definition any domicile subject to the Law of England commits the offence, if he or she marries again during the lifetime of the former husband or wife as the case may be, as according to that law neither plurality of wives, nor plurality of husbands is recognised. A second marriage by a Hindu or a Muslim male during the lifetime of his first wife allowed by their religion cannot be made punishable in India where the Hindus and Muslims from the major portion of the population and an exception had to be made in the case of these persons. According to Section 494, Penal Code, therefore, 'Whoever having a husband or wife living married' is punishable only 'in any case in which such marriage is void by reason of its taking place during the life of such husband or wife.' The result is that Polygamy or Polyandry is protected wherever it is allowable. The Hindu or Muslim male can marry again though the first wife is alive but a Hindu or Muslim female cannot do so. A Toda woman cannot be punished for bigamy as amongst Todas Polyandry is recognised. A Christian male or female is guilty of this offence both in England and in India, if being married marries another person during the lifetime of the first wife or husband.
4. No difficulty arises in applying the law when the facts are as simple as stated above, but some difficulty arises in the application of the law when a man or woman of a religion in which Polygamy is not allowed embraces a religion in which it is allowed or vice versa and in this revision petition a case of this kind has to be dealt with. Converts to Christianity commit this offence, if they marry when their first husband or wife as the case may be in alive; unless the first marriage has been annulled. Does it follow that this is so when a married Christian relapsing into Hinduism marries again and if not why? No decision of this Court on the point, is brought to my notice. There is a certain amount of conflict of opinion in the decisions of Indian High Courts and the matter has, therefore, to be examined.
5. The conversion of a Hindu by birth to Christianity deprives him of the right to marry a second wife during the lifetime of his first wife. He would be clearly guilty of bigamy if he marries again while his first wife is alive when both the marriages are celebrated in Christian form after he becomes a Christian. It is so, as, though Christianity does not prohibit polygamy which in fact was in vogue amongst the early Christians, the law of Christendom by which the Indian Christians are governed prohibits it. In the case of conversion of married Hindus, the point for consideration is whether their first marriages comes in the way of a second marriage. It was observed in Abraham v. Abraham, I W.R.P.C. 1 at p. 5, that change of religion would release the converts from the trammels of the Hindu Law, Can it be said that conversion puts on end to the marriage relationship which existed prior to the marriage? The decision is Behman Bee Bee v. Rokeya Bee Bee, 1 Norton's Leading cases on Hindu Law p. 12) supports an answer in the affirmative. This is based on the fact that Hindu law regards a converted person as beyond its pale; he is regarded as civilly dead but as observed in In the matter of Ram Kumari, 18 Cal. 264:
'This may be so as regards her civil rights, but we find no authority in Hindu law for the position that an apostate is absolved from all civil obligations incurred before the degradation or apostacy.'
According to Vridda Harita IV. 152.
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ik'k.M ifrrkukap u pkoSfnd deZ.kke AA**
The hermit, the ascetic, the celebate the heretic, the outcaste, or one who does not perform vedic ceremonies does not get a share in the properties. The hermit and the outcaste are classed together in this respect since wealth is regarded in Hindu law s acquired for performance of sacrifices and all these persons are not fit to perform them. According to Katyayana cited by Ratnakars and Apararka:
;KkFk nzO;eqRiUua rLeknzO;a fu;kst;sr A
LFkkius'kq /keZ;qs'kq u hew[kZfo/kafeZ'kqAA
6. From this it does not follow that the marriage tie is severed by conversion or by any act of the parties. Hindu law does not regard marriage as a mere contract. It regards that marriage makes the husband and wife one person. According to it, marriage is indissoluble and not even by sale or by repudiation is a wife released from her husband: Manu IX: 45 and 46.
,rkokuso iq:'kks;Ttk;kRek iztsfrg AL
foizk% izkgqLrFkk pSr|ks HkrkZ lkLe`rk>uk AA
u fu'; folxkZH;ka HkrqZHkkZ;kZ foeqP;rsA
,oa /kefotkuhe% izkd iztk ifrfufeZre AA
It follows therefore that mere conversion from Hinduism has not the effect the unfastening the marriage tie. The result is that it has been held that a married Hindu convert to Christianity commits the offence of bigamy if he or she marries when the Hindu spouse is alive unless the first marriage is dissolved. Under the Native Converts Marriage Dissolution Act, it is recognised. The marriage prior to conversion is not dissolved by the conversion. I may here refer to In re Millard, 10 Mad. 218 and Gobardhan Dass v. Jasadamoni Dassi, 18 Cal. 252.
7. The decisions that deal with cases of conversion from Hinduism are applicable to cases of conversion into Hinduism to the extent that in both kinds of cases, the marriages prior to conversion have been regarded as valid for the purpose of considering whether an offence under Section 494, Penal Code is committed when the converted persons marry again after conversion during the lifetime of the first wife or husband, but whether they commit an offence under S. 494, Penal Code in such a case depends also upon whether the religion into which they are converted allows a second marriage or not. A Christian man or woman is not allowed to marry again during the lifetime of the first wife or husband as the case may be, it has been held that he is guilty of bigamy if he or she does so, even though the first wife or husband is a Hindu and the marriage took place before conversion. This is also the case when married women converted to Hinduism marry again, as Hindu law which is applicable to them after conversion does not countenance plurality of husbands though it allows plurality of wives
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is what is enjoined in Aitereya Brahmana 3-2-12. The prohibition is applicable to a woman converted to Christianity or Mahomedanism marrying again during the lifetime of her first husband of these religious do not also recognise plurality of husbands. Mt. Nandi v. Emperor, 1 Lah. 440: (A.I.R. (7) 1920 Lah. 379 : 22 Cr.L.J. 1); Govt. of Bombay v. Ganga, 4 Bom. 330; In re Millard, 10 Mad. 218 and Gobardhan Dass v. Jasadamoni Dassi, 18 Cal. 252, might be cited as authorities on the point. IN 5 Mys. C.C.R. 131, it was observed that 'mere conversion to Mahomedanism does not dissolve a Hindu marriage' and the conviction under Section 494, Penal Code of a Hindu wife marrying after conversion to Mahomedanism during the lifetime of her Hindu husband was upheld. The head note in the case reported in 7 Mys. C.C.R. 100 is misleading and it appears from it that what is decided in it is inconsistent with the previous decision though the acquittal ordered in that case appears to have been due to the fact that the first marriage of a Christian woman prior to conversion to Mahomedanism had been dissolved by a notice issued to the first husband in accordance with Mahomedan law. In the matter of Ram Kumari, 18 Cal. 264, recognises a divorce of this kind, but United Motor Transport co., Ltd. v. Sree Lakshmi Motor Transport Co., Ltd. : AIR1945Cal260 , deserves notice when the point arises directly for consideration.
8. Hindu or Mahomedan makes are legally entitled to have more than one wife, subject to the limit of four wives in the case of Mahomedan makes. So if a Christian male is converted to Hinduism or to Mahomedanism and marries again during the lifetime of his first wife whom he had married prior to conversion, he is not guilty of bigamy as polygamy is allowed by Hindu and Mahomedan laws. It is wrong to say as was argued that Hinduism does not recognise conversion. During the time Buddhism was prevalent in India, conversion from Hinduism to Buddhism or from Buddhism to Hinduism was to frequent that it was not uncommon for a Brahmin to become a Buddhist for some time and later to relapse into Hinduism. Conversion to Vaishanavism by Shri Ramanuja is well known and the case of Vishnuvardhana a Jain King is a familiar instance. In this case the accused is a born Hindu Lingayat and it is not disputed that he was reconverted to Lingaitism before his second marriage. There is a sect amongst Lingayats who are converts from Jains and there is an inscription showing conversion of numerous Jains to Lingaitism, It cannot, therefore, be said that conversion to Hinduism is not recognised and that a Christian converted into Hinduism does nt acquire the rights of a Hindu. It is stated in Mayne's Hindu Law that as it is open to a Hindu by birth to become a convert to Christianity or Mahomedanism it is equally open to a Christian or Mahomedan to become a convert to Hinduism.' As observed in High Court Proceedings, 8th November 1866, 3 M.H.C. (Appx.) VII:
'It seems impossible to assume that a man is not equally free to go from Hinduism to Christianity and if he pleases, back from Christianity to Hinduism.'
Moreover, a Hindu by birth converted into Christianity relapsing into Hinduism as in this case is more a case of taking back into the fold of Hinduism by purification a man who is Hindu by birth but had gone astray.
9. The question of a Hindu Christian converted relapsing to Hinduism and marrying a Hindu woman during the lifetime of his first wife married to him when he was a Christian as in this case came up for consideration in 1866 in the Madras High Court in the last mentioned case. Holloway J., who made the remarks quoted above, gave two reasons for holding that the accused was not guilty of an offence under Section 494, Penal Code. The first reason is that as Hindu law allows polygamy and the accused was a Hindu at the time of his second marriage, it is impossible to say that the second Hindu marriage is void on account of a previous valid Hindu marriage:
'It is manifest therefore that the second Hindu marriage cannot be rendered void in consequence of a previous marriage which the Hindu law would not have recognised, it not having been performed with reference to its provision.'
The second reason given is as follows:
'If again as it seems to me impossible to do, the man is to be treated as still a Christian, the union entered into with the Hindu woman would not in the view of any law governing Christian union be considered a marriage at all.'
10. It has, however, to be stated with respect that though this decision is the basis for most of the later decisions, the second reason give in it is not tenable. If a Christian having a wife married in accordance with Christian rites marries another in accordance with Hindu rites he is clearly guilty of the offence of bigamy. The legality of the first marriage in such a case is beyond doubt. It is because that the second marriage by a Christian cannot be considered a marriage at all that he is punished for bigamy. The fact that the second marriage is also void as it was entered into with a Hindu woman does not make it less bigamous. In 10 con. 411, an Irish case, the second marriage was void by statute as it was celebrated by a Roman Catholic Priest between a Protestant who falsely stated he was a Roman Catholic and a Roman Catholic. It was held in that case that the second marriage was not a marriage at all and that the offence of bigamy was not, therefore, committed ; but later on in R. v. Allan, (1872) L.R. 1 C.C.R. 367 : (41 L.J.M.C. 97), which is the leading case on this point, this decision was not approved of and it was pointed out by Cockburn C.J., that the English Statute was not intended to prevent the co-existence of two real wives, which was not possible under that law, but that it was intended to prevent the co-existence of a real and an unreal wife. R. v. Robinson, (1938) 26 Cr. App. R. 129, is a more recent came on the point. The dictum of Holloway J., that the second marriage o a Christian male with a Hindu female in Hindu form during the lifetime of his Christian wife does not amount to bigamy as the second marriage is a nullity according to the law of Christendom, cannot therefore be accepted.
11. There is, however, no doubt that a Christian convert relapsing into Hinduism and marrying a Hindu woman during the lifetime of his Christian wife cannot be convicted of bigamy as Hindu law which is applicable to his case after his conversion to Hinduism allows polygamy. The case is different if a Christian having a Christian wife living, marries a Hindu woman according to Hindu rites without renouncing his religion, he is guilty of bigamy as in that case the law of Christendom which does not allow polygamy is applicable. This was what was held in Emperor v. Lazar, so Mad. 550 : (6 Cr.L.J. 338), but the observation made in that case, that the result would have been the same, if the Christian had become a Hindu before the second marriage is an obiter. It is incorrect and was not followed in Emperor v. Anthony, 33 Mad. 371: (11 Cr.L.J. 682), in which the decision in High Court Proceedings, 8th November 1866, 3 M.H.C. (Appx.) VII was followed with approval. The correctness of this decision was not questioned in High Court Proceedings, 18th February 1868, 4 M.H.C. (Appx.) III, in which it is referred to. In Gladys Sainapathi v. Sainapathi, A.I.R. (19) 1932 Lah. 116; (136 I.C. 262), it was held that:
'When a Hindu male has contracted his first marriage with a Christian woman in England in Christian form and subsequently marries for a second time, while his first Christian wife is living, a Hindu female, in Hindu form, it cannot be said that he has committed bigamy under the Penal Code.'
It has to be observed here that this opinion was arrived at after it was held that the first marriage was a valid Christian marriage. It has been observed in Mrs. Chitnavis v. A.S. Chitnavis, A.I.R. (27) 1940 Nag. 195 : (I.L.R. (1941) Nag. 260 S.B.), that
'where a Hindu after marrying a Christian wife and while that Christian wife is living, marries a Hindu wife in a Hindu form, though the second marriage does not amount to bigamy it amounts to a second marriage.'
There is thus no doubt that so long as the accused is a Hindu at the time of his second marriage he does not commit and offence of bigamy though the second marriage takes place when his first wife whom he had married, when both of them were christians, is alive. The decisions dealing wit second marriages of converts to Christianity are not applicable to cases of second marriages of converts to Hinduism as the former religion does not allow polygamy while the latter does.
12. It appears to me that it is very unlikely that Section 494, Penal Code was intended to be applied to the abnormal cases of converted persons who are sometimes force to marry a second time when their spouses who have not been converted refuse to live with them. It is much more likely that it was intended only to apply to cases of a Christian marrying a second time during the lifetime of the first Christian wife or husband as the case may be and to the case of a Hindu or Mahomedan wife marrying a second time during the lifetime of her first husband. It is one thing to say that a converted person is bound to maintain his wife married to him before conversion and that he cannot avoid by changing his religion, the responsibility which, by marrying her he had undertaken before conversion. It is another thing to say that he is bound to remain unmarried, unless he could manage to get a divorce and that his marriage without getting a divorce amounts to a criminal offence. The matter might need reconsideration when the point arises directly for consideration.
13. A married Hindu or Mahomedan converted to Christianity can be convicted of the offence of bigamy only if it is shown that the second marriage is void by reason of an earlier marriage with another person alive is valid and subsisting according to the laws of Christendom. The case of R v. Allen, ((1872) L.R. 1 C.C.R. 367: 41 L.J.M.C. 97), previously referred to shows that the second marriage is void for some reason other than its being bigamous does not come in the way of a conviction for bigamy. This case does not however support conviction of a Christian for bigamy when the first marriage is not legal according to the law of Christendom If the first marriage is invalid as for instance when it is between two persons within prohibited degree, it cannot make a second marriage bigamous (Chandwick, 1847-11 R.B. 205 and Rex v. Kay, 1887-16+ Cox, CC. 292). In dealing with case of persons marrying after conversion to Christianity, it is the law of Christendom that is applicable and if so can it be said that a Hindu marriage which took place prior to conversion, however indissoluble it may be according to Hindu law has to be regarded as a real subsisting marriage according to law applicable to Christendom so as to form the basis for a conviction for bigamy? It was observed by Lord Brougham in Warrender v. Warrender, (1835) 2 cl. & Fin. 488 at p. 533: (37 R.R. 188), as follows:
'Marriage is one and the same thing substantially, all the world over. Our whole law of marriage assumes this; and it is important to observe that we regard is as a wholly different thing a different status from Turkish or other marriages among infidel nations, because we clearly never would recognise the plurality of wives, and consequent validity of second marriages. It is thus clear that marriage in accordance with Hindu or Mahomedan law which allows polygamy cannot be basis for holding that a second marriage in invalid unlike the case of a Christian marriage which does not allow polygamy and invalidates a second marriage during the lifetime of the first husband or wife.
In short, as observed by Lord Pemmener in Hyde v. Hyde, (1938) 1. P. & D. 130:
'a marriage as understood in Christendom which for this purpose may be defined to be the voluntary union for life of one man and one woman to the exclusion of all others.'
It is thus clear that the law applicable to a converted christian does not recognize the validity of a marriage which takes place in Hindu form as according to Hindu law polygamy is permitted. If the Hindu law is applied to a person converted from Hinduism to Christianity his second marriage during the lifetime of his first wife is not an offence. If the law of Christendom is applied to him, it does not recognize the first polygamous marriage as valid.
14. For holding that an offence of bigamy is committed, the second marriage must be found to be invalid on account of a valid first marriage. Would it be correct to apply Hindu law for holding that the first marriage is valid and to apply the law of Christendom for holding that the second marriage is void as a basis for conviction of an offence of bigamy? Whatever the law in England might be, we are governed in India by the wording of Section 494, Penal Code, and an offence of bigamy is committed only if the second marriage is void on account of the first marriage. Can a marriage in Hindu form which allows polygamy be the basis for holding that the second marriage is void, is the short question that arises for consideration. There may be other points for and against this view but these doubts may have to be cleared in a case in which the question directly arises for consideration. It is sufficient to state in this case that the decisions that hold that a married Hindu commits the offence of bigamy if after conversion to Christianity he marries during the lifetime of his first wife are not applicable to cases of a male converted to Hinduism marrying again during the lifetime of his first wife, as Hindu law by which be is governed allows polygamy.
15. The Magistrate was, therefore, right in discharging the accused. This revision petition is dismissed.
16. Petition dismissed.