(1) The two petitioners have been convicted, the first under S. 494, Penal Code, and the second under S. 4 (4) of the Madras Act (6 of 1949) and sentenced to regorous imprisonment of 6 months and to fine of Rs. 200/- with a default rigorous imprisonment of six weeks respectively.
(2) A complain was filed by the wife of the 1st accused that during the subsistence of her marriage with him he had taken a second wife, the daughter of the 3rd accused. The 2nd wife was impleaded as the 2nd accussed. The charge against the 1st and 2nd accused was one under S. 494, Penal Code. while that against the 3rd accused, that is, the 2nd petitioner, was one under S. 4 (4) of Madras Act (6 of 1949).
(3) The defence of the accused was that the 2nd marriage had not taken place as alleged by the prosecution and that, in any event, as the marriage with the complainant was dissolved, the 1st accused was competent to marry a second time and therefore no offence was committed by any of the accused. A plea was put forward on behalf of the second accused that she, being a minor, could not be held to be guilty of the offence with which she was charged.
(4) The trial Court acquitted the second accused finding that she was a minor. With regard to the celebration of the second marriage, the Magistrate found that the prosecution had established it beyond reasonable doubt. He also found that there was really no divorce between the complianant and the 1st accused as pleaded by the accused. In the result, he convicted the two petitioners for the offences mentioned above. This was confirmed in appeal by the Additional Sessions Judge, Guntur.
(5) In this revision case against the judgment of the lower appellate court, Mr. Sarma attacks the findings of the Court below regarding the divorce, not questioning the finding with, regard to the factum of the second marriage. In addition he raised a constitutional point that the proviso to S. 4 (1) of the Madras Hindu (Bigamy Prevention and Divorce) Act is repugnant to the provisions of S. 494, Penal Code and by virtue of Art. 254(1) of the Constitution, the law enacted in S. 494, Penal Code shall prevail and to that extent the law made by the local Legislature would become void.
(6) Art. 254(1) of the Constution of India, enacts thus :
'If any provision of the law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of the existing law with respect to one of the matters enumerated in the Concurrent list, then, subjects to the provisions of cl. (2) the law made by Parliament whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.'
(7) According to Mr. Sarma, the repugnance between S. 494, Penal Code, and the proviso to S. 4 (1) of the Madras Hindu (Bigamy Prevention and Divorce) Act consists in this : while the exception to S. 494, Penal Code permits a person accused of the offence under that section to plead in defence that the first marriage had been declared by a court of competent jurisdiction void the proviso to S. 4 (1) of the Madras Hindu (Bigamy Prevention and Divorce) Act requires six months to lapse between the actual divorce or the order of the Court as the case may be and the second marriage, to make the second marriage valid. In other words, the divorce would become effective only if the period mentioned in the proviso had lapsed.
(8) I will deal with this point first.
(9) To appreciate these contentions it is necessary to set out the relevant provisions of both the enactments. Section 4 (1) of the Madras Hindu (Bigamy Prevention and Divorce) Act enacts as follows :
'4 (1) Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnised after the commencement of this Act between a mad and a woman either of whom has a spouse living at the time of such solemnisation shall be void, whether the marriage is solemnised within or outside the State of Madras :
Provided that a man or woman whose marriage has been dissolved by a final order of a court of competent jurisdiction under S. 5 or under any other law for the time being in force, or in accordance with any custom or usage permitting of divorce, may solemnise a valid marriage with another, after the expiry of six months from the date of such final order or from the date on which the marriage was dissolved in accordance with such custom or usage, as the case may be. Explanation : An order shall be deemed to be final order within the meaning of the above proviso, if no appeal lies against such order or if the time allowed for the filing of an appeal against such order has expired without an appeal having been filed.'
(10) Section 494, Penal Code runs thus :
'Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception : This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marraige during the life of a former husband or wife, if such husband or wife at the time of the subsequent marriage shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place. inform the person with whom such marriage is contracted of the real state of facts as far as the same are within his or her knoledge.'
(11) It is seen from the Exception to S. 494, Penal Code, that an exception is made in the case of a person whose first marriage is declared void by a Court of competent jurisdiction. The proviso to S. 4 (10 says that before the second marriage could be solemnized six months should expire from the date of the order of Court or the date of dissolution of marriage in accordance with such custom or usage. This proviso contemplates a marriage being dissolved either by an order of Court or in accordance with custom or usage and the six months' period fixed in this proviso governs both types of divorces. The question for consideration is whether really there is any repugnancy between this proviso and the terms of the Exception to S. 494, Penal Code.
(12) At the outset it has to be mentioned that Exception to S. 494, Penal Code, marely speaks of a Court declaring the first marriage void. The machinery for doing it is not provided for in that section and this has to be looked for elsewhere. That provision is contained in S. 57 of Act (4 of 1869) entitled the Indian Divorce Act. Section 57 provides as follows :
'When six months after the of an order of a High Court confirming the decree for dissolution of marriage made by a District Judge have expired, or when six months after the date of any decree of a High Court dissolving a marriage have expired and no appeal has been presented against such decree to the High Court in its appellate jurisdiction, or when any such appeal has been dismissed or when in the result of any such appeal any marriage is declared to be disolved :
But not sooner, it shall be lawful for the respective parties to the marriage to marry again, as if the prior marriage had been dissolved by death : Provided that no appeal to Her Majesty in Council has been presented against any such order or decree.'
(13) When such appeal has been dismissed, or when in the result thereof the Marriage is declared to be dissolved , but not sooner, it shall be lawful for the respective parties to the marriage to marry again as if the prior marriage had been dissolved by death.
(14) According to this section the first marriage becomes null and void only after the expiry of six months from the date of the decree of the Court. This section confers a liberty upon a spouse to marry again only if the requirements thereof are satisfied. Before the expiry of the six months the first marriage shall be deemed to be in force and it is therefore not competent for either of the spouses to contract a second marriage during that period and if a second marriage is contracted, it is void. It follows that the benefit of the Exception to S. 494, Penal Code, could be availed of only when the first marriage is declared void as stated above.
(15) So, 'de hors', the proviso to S. 4 (1) of the Madras Hindu Bigamy Prevention and Divorce) Act, if a person, be it husband or a wife, contracts a second marriage before the expiry of six months of decree 'nisi' (if the divorce is effected by virtue of an order of Court) or from the date of actual divorce if it is in accordance with custom or usage such a marriage is rendered void by reason of S. 57, Divorce Act. So there is nothing new in the impugned section. The proviso is evidently based on the provisions of S. 57, Indian Divorce Act. It was competent for the local Legislature to enact this proviso and really there is no inconsistency between this proviso and S. 494, Penal Code, Provisions analogous to S. 4 are contained in S. 5 of the Parsi Marriage and Divorce Act and S. 15 of the Special Marriage Act.
(16) In -- 'J. S. Battle v. G. G. Brown', AIR 1916 Mad 847 (2) (A), it was laid down that the second marriage, solemnized before the expiry of six months from the date of the decree 'nisi' was issued was void as S. 57, Indian Divorce Act does not completely dissolve the tie of the marriage until the lapse of six months. This view was shared by the Allahabad High Court in -- 'Jackson v. Jackson', 34 All 203 (A). In the present case admittedly the second marriage took place within six months of the decree. This argument based on the terms of Exception to S. 494 is therefore repelled.
(17) It follows that a second marriage solemnized within six months from the date of the alleged divorce is void and the contracting parties to such a marriage are guilty of an offence under S. 494, Penal Code. That apart, in this case the finding of the Courts below is that there was in reality no divorce at all. As pointed out by the Additional Sessions Judge, the effect of the evidence adduced by the accused was only a divorce was permissible under the custom of the community and to which the parties belong and not that there was in fact a divorce. That is not the same thing as saying that there was in fact a divorce. So even if the whole evidence for the defence was accepted, it did not establish the factum of divorce. Consequently, the finding of the Courts below has to be accepted and the plea of the accused that there was a divorce rejected even on that basis.
(18) It was lastly argued that the second petitioner ought to have been convicted under subsection (3) of S. 4 and not under sub-section (4). First I fail to see what difference it makes for the second petitioner whether he is convicted under S. 4 (3) or 4 (4). Besides, there is no force in this contention. Sub-section (3) applies only to a case of a guardian who permits such a void marriage to take place with the knowledge of the existence of the first marriage or who fails to take steps or who neglects to take steps to prevent such a marriage. It is seen that it only applies to a person who does not take an active part in the solemnization of such a marriage and a case of the second category is provided for in sub-s. (4). In the present case, the prosecution case is that the second petitioner took an active part in the performance of the second marriage. He was therefore rightly convicted under S. 4 (4) of the Madras Hindu (Bigamy Prevention and Divorce) Act. It follows that the petitioners were rightly convicted.
(19) The Revision Case is therefore dismissed.
(20) Revision dismissed.