1. The Petitioner before this Court was the first accused in the Trial Court. The second accused before the Trial Court was the second wife of the first accused and the complainant in the case was his first wife. The petitioner has been convicted for an offence under Section 494, Indian Penal Code and sentenced to six months rigorous imprisonment by the trial Court. The trial Court also convicted the second accused for an offence under Section 494 read with Section 109, Indian Penal Code. In the appeal filed by the accused the learned Sessions Judge allowed the appeal of the second accused and acquitted her. So far as the appeal filed by the first accused 13 concerned, the learned Sessions Judge confirmed his conviction and the sentence. In this revision, the petitioner challenges the correctness of the conviction and sentence passed on him by the learned Sessions Judge.
2. The petitioner married the respondent-complainant at Jolarpet about nine years before the complaint. After living for some time with the complainant and after getting two children, the complainant's case is that the first accused started ill-treating her and drove her out of the house. Thereafter, during the life time of the complainant and while the marriage as between her and the first accused was subsisting, the first accused married the second accused at the premises of one Balaji Singh at Bangarapet on 11-5-1967, The complainant therefore charged the accused with having committed an o0ence of bigamy under Section 494, Indian Penal Code.
3. Shri M. V. Devaraju, learned counsel appearing on behalf of the petitioner has contended that the complainant has not established that the petitioner has undergone a valid second marriage according to Hindu rites. The contention on behalf of the petitioner is that the second marriage has not been duly solemnised according to Hindu rites and as such it is not a valid marriage. As laid down by the Supreme Court, two things are necessary for solemnisation of a valid. Hindu marriage:-- (1) Invocation before the sacred fire, and (2) Saptapadi. Unless these two ceremonies are performed, the marriage will not be a valid marriage. It is contended by Shri Devaraju that the evidence of the ceremonies performed at the time of the marriage given by the various witnesses is discrepant and conflicting. There is no clear evidence that saptapadi was performed during the ceremony. Shri Devaraju hasstrongly relied on the decisions in Bhaurao Shankar Lokhande v. State of Maharashtra, : 1965CriLJ544 , Kanwal Ram v. The Himachal Pradesh Administration, : 1966CriLJ472 , Venkata Subbarajudu Chetty v. Tanguturu Venkataiay Shresti, (1958) Mad LJ (Crl.) 73 and in Laxmawa v. Hanmappa Bhimappa, (1967) 1 Mys LJ 553 in support of his contention that no valid marriage had been solemnised.
4. I will first consider what are the legal requirements of a valid Hindu marriage. In : 1965CriLJ544 , their Lordships have laid down what are the legal requirements of a valid Hindu marriage. In paragraph 5 of the judgment their Lordships have observed as follows:--
'The word 'solemnise' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnised'. It is, therefore, essential for the purpose of Section 17 of the Act, that the marriage to which Section 494, Indian Penal Code, applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, wilt not make the ceremonies prescribed by law or approved by any established custom.'
4a. Again in paragraph 8 their Lordships have laid down what are the two essential ceremonies which should be performed to make it a valid marriage. At paragraph 8 their Lordships have quoted the passage from Mulla's Hindu Law, 12th Edition, at page 615:--
'(1) There are two ceremonies essential to the validity of a marriage, whether marriage be in the Brahma form or the Asura form, namely-
(1) invocation before the sacred fire, and
(2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.
(2) A marriage may be completed by the performance of ceremonies other than those referred to in Sub-section (1), where it is allowed by the custom of the caste to which the parties belong.'
It may be mentioned that the complainant in this case has not relied on any custom of the caste, according to which, by performing certain ceremonies a valid marriage could take place between the parties.
5. In the said decision as the required two essential ceremonies had not been performed, their Lordships set aside the conviction of the accused for an offence under Section 494, Indian Penal Code.
6. Again in : 1966CriLJ472 their Lordships have reiterated what had beenlaid down in the earlier decision. Their Lordships held that in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved and that admission of marriage by the accused was not evidence of it for the purpose of proving marriage in an adultery of bigamy case and that where, therefore, in prosecution for offences under Section 494/109 Indian Penal Code the evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed, the conviction of the accused persons could not be sustained.
7. In (1967) 1 Mys LJ 553 a bench of this Court followed the above mentioned decision of the Supreme Court and held that in a prosecution under Section 494, Indian Penal Code read with Section 17 of the Hindu Marriage Act, the prosecution must establish that the essential ceremonies for a valid marriage were gone through by the accused.
8. I will now examine the evidence let in on behalf of the complainant in the case. P. W. 4 Nanjunda Sastry is said to be the Purohit who performed the said marriage. He has nowhere stated that saptapadi was performed at the time of the marriage. All that he has stated is as follows:--
'The Homa and the tying of Tali was got performed by me. A-1 tied the Tali to A-2', He has nowhere stated that the essential ceremony of a Hindu valid marriage, that is, saptapadi was performed. He has admitted in cross-examination that he was not a purohit by profession. He has stated that he has been working as a teacher for the last 18 years. He has also admitted that he has not studied Sanskrit and that he does not know how many kinds of marriages there are in Hinduism. It is obviously because of his ignorance of the essential ceremonies that he did not perform Saptapadi while performing the marriage of the accused Nos. 1 and 2. P. W. 2 Samsingh has not stated that there was any invocation before the sacred fire. He has also not stated that accused Nos. 1 and 2 took seven steps together before the sacred fire. P. W. 3 Lokn Baiamma has also not spoken to any invocation before the sacred fire.
In cross-examination, she has stated that she does not know the meaning of Saptapadi. Even the evidence of P. W. 5 Jayaram Singh does not indicate that Saptapadi, i.e., seven steps were together taken by the couple round the sacred fire. There is considerable force in the contention of Shri Devaraju that the evidence of the ceremonies performed at the time of the marriage let in by the complainant is discrepant and conflicting. The Purohit who is said to have performed the marriage has nowhere stated that the married couple performed the Saptapadi. It is therefore clear that the complainant has not proved by reliable evidence that the marriage between accused 1 and 2solemnised according to Hindu rites. In the state of the evidence mentioned above, the accused is entitled to the benefit of doubt.
9. I, therefore, allow this revision petition and set aside the conviction and sentence passed on the petitioner.
10. Revision allowed.