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In Re: Dolgonti Raghava Reddy and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Family
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 26 of 1965
Judge
Reported inAIR1968AP117; 1968CriLJ447
ActsIndian Penal Code (IPC), 1860 - Sections 494 and 495; Hindu Marriage Act, 1955 - Sections 5, 7, 11 and 17; Hindu Law
AppellantIn Re: Dolgonti Raghava Reddy and anr.
Appellant AdvocateV. Madhava Rao, Adv.
Respondent AdvocateA. Gangadhar Rao, Addl. Public Prosecutor
DispositionRevision dismissed
Excerpt:
.....conviction - bigamy punishable under section 494 - second marriage must performed with proper ceremonies - ceremonies prevailing in area properly performed - petitioners validly married and guilty of bigamy. - - order 1. this revision is directed against the judgment of the learned sessions judge, karimnagar, given on 6th january 1965 whereby he confirmed the sentence awarded to the 1st accused and also confirmed the directions given in regard to a-2 that she should be acquitted on condition that she executed a bond for good behaviour finding them guilty under section 494 i. thus if the marriage is violative of section 5(i). it is void both under section 11 as well as under section 17 of the act. that is the purpose of section 17 8. the words 'solemnised' used in section 17..........17 of the act. i do not think it necessary to make enquiries as to why section 17 declares such a marriage void when that was already stated in section 11. it is enough to say this section penalises the offender and putting effective check on persons preventing (sic) the rule of monogamy. the essential purpose of section 17 is to punish bigamy and in order to do that, the section provides that in such cases, the provisions of sections 494 and 495 i. p. c. shall apply. before the commencement of the act, a hindu male having more wives than one at the same time, was not guilty of bigamy under sections 494 and 495 i. p. c since such marriages were not void according to law then prevailing. section 5(i) has now enforced monogamy and section 4 which has an overriding effect, abolishes prior.....
Judgment:
ORDER

1. This revision is directed against the judgment of the learned Sessions Judge, Karimnagar, given on 6th January 1965 whereby he confirmed the sentence awarded to the 1st accused and also confirmed the directions given in regard to A-2 that she should be acquitted on condition that she executed a bond for good behaviour finding them guilty under Section 494 I. P. C

2. The relevant facts are that A-1 married A-2 in the temple at Kottagattu on 1-2-1964 at about 4 a.m. on a Jatra day although his marriage with the complainant subsisted It was therefore contended that the two accused have committed the offence under Section 494 I.P.C. Some other persons were also impleaded as accused under the charge of abetting in the marriage

3. Accused 1 and 2 denied their marriage, and they also denied the charge. The trial Court examined six witnesses on be-half of the prosecution. Two witnesses also were examined on behalf, of the accused. Upon this material, the trial Court reached the conclusion that the second marriage as alleged by the complainant has been solemnised and found accused 1 and 2 guilty of Section 494 I. P. C. Accused No. 1 was awarded three months R. I. while A-2 was directed to execute a bond of Rs. 200 under Madras Probation of Offenders Act. The other accused also were directed to execute similar bonds.

4. The accused therefore, preferred an appeal to the Sessions Court. Karimnagar, The learned Sessions Judge, by his order under revision, acquitted all the other accused, except A-1 and A-2. He confirmed the sentence awarded to A-1 and also confirmed the direction of executing a bond in so far as A-2 is concerned. It is this Judgment of the learned Sessions Judge that is now assailed in this revision filed by A-1 and A-2.

5. The principal contention of Mr. V. Madhava Rao the learned counsel for the petitioners is that it was necessary for the prosecution to establish that the alleged second marriage of A-1 with A-2 in February 1964 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through in the community to which the accused belong. It was contended that the essential ceremonies for a valid marriage amongst Reddy community included the invocation of sacred fire and Saptapadi. Since this essential ceremony has not been performed, the second marriage could not be said to have been established by the prosecution evidence.

6. Now according to section 494 I. P. C. whoever having a husband or a 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 7 years and shall also be liable to fine. It cannot be in doubt that the expression 'whoever marries' must necessarily mean marries validly. If the marriage is not a valid one, according to the provision of law applicable to the parties, no question of its being void by reason of its taking plea during the lifetime of the husband or will of the person marrying can arise. If the second marriage is not a valid marriage, it is no marriage in the eve of the law. Merely because a man and woman live as husband and wife, they do not in fact become husband and wife in accordance with the provisions of law which recognises such status In order to constitute a valid marriage certain ceremonies have to be necessarily gone through What ceremoines are necessary, depends upon the custom of the community to which the parties belong

7. In order to find out what marriage is void for the purpose of section 494 I, P. C. it is necessary to refer to Hindu Marriage Act 1955 which makes the second marriages void in certain cases. Section 5 of the Hindu, Marriage Act provides that a marriage may be solemnised between any two Hindus if the conditions referred to in that section are fulfilled. The first condition referred to in the section is that neither party has a spouse living at the time of marriage. Section 11 of the said Act declares marriage which has^ been solemnised in contravention of section 6(1) shall be void. Section 17 which is material in this respect reads as follows:

'Any marriage between two Hindus after the commencement of this Act is void if on the date of such marriage, either party had a husband or wife living and provisions of sections 494 and 495 I. P. C. shall apply accordingly.'

It will thus be seen that this section lays down two things: first when a person remarries after the commencement of this Act, if on the date of the marriage he or she has a spouse living of the earlier marriage, such marriage is void; and secondly the provisions of Sections 494 and 495 I. P. C. shall apply accordingly to such marriages. Under the prior Hindu Law, polyandry was unlawful but pollgamy was lawful. The Hindu Marriages Act now enforces monogamy. Thus if the marriage is violative of section 5(i). it is void both under Section 11 as well as under Section 17 of the Act. I do not think it necessary to make enquiries as to why Section 17 declares such a marriage void when that was already stated in Section 11. It is enough to say this section penalises the offender and putting effective check on persons preventing (sic) the rule of monogamy. The essential purpose of section 17 is to punish bigamy and in order to do that, the section provides that in such cases, the provisions of sections 494 and 495 I. P. C. shall apply. Before the commencement of the Act, a Hindu male having more wives than one at the same time, was not guilty of bigamy under sections 494 and 495 I. P. C since such marriages were not void according to law then prevailing. Section 5(i) has now enforced monogamy and section 4 which has an overriding effect, abolishes prior Hindu Law relating to poligamy. Therefore bigamous Hindu marriage solemnised after this Act would be punishable under Sections 494 and 495 I. P. C. That is the purpose of section 17

8. The words 'solemnised' used in Section 17 clearly indicates that a marriage must be celebrated with proper ceremonies and in due form according to the customs in the community to which the parties belong. Unless therefore the marriage is celebrated or performed with proper, ceremonies in due form, it cannot be said to be a marriage solemnised for the purpose of Section 17. What must follow is that it is essential for the purpose of Section 17 of the Act that the marriage to which Section 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely because some ceremonies have been gone through in order to show that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom. Section 7 of the Act enjoins that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the Saptapadhi (that is. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

9. It will thus be seen that ordinarily a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. Unless of course it is shown that such rites and ceremonies include Saptapadhi. then the marriage would be complete and binding when the 7th step is taken round the sacred fire.

10. What has therefore to be seen in this case is whether invoking the sacred fire and taking of seven steps round such sacred fire, are necessary ceremonies for a valid marriage of persons belonging to Reddy community in Telangana area. Caste and Tribes of H.E.H. the Nizam's Dominion (Vol. I) By Syed Sirajul Hasan at page 307 narrates the customs in regard to Kapus. Kapu is another name for Reddy in Telangana area. I am not concerned with their other customs relating to other ceremonies. The ceremonies which are necessary in regard to the marriage are referred to at page 310. At page 313 It appears that the following ceremonies are usually performed:

'Lagnam: The bride and bridegroom dressed in wedding clothes of a saffron colour are conducted to the marriage booth. On a mat of Snendi (wild date palm) are placed two wooden seats, on which the couple are made to stand racing each other, a screen being held between them. The Brahman priest recites mantras, or sacred texts and the assembled guests throw rice over the heads of the couple.

Padghattan. The bridegroom places his right foot upon a stool placed beneath the screen and the bride touches it three times with her left foot. Then, the bride, in her turn puts her right foot upon the stool which is trodden upon by the bridegroom with his left foot three times.

Jirs Gudam; The bride and bridegroom throw a mixture of jira (cumin seeds) and guda (jaggery) three times alternately over each other's head. The screen is then removed

Kanvadan; The parents of the bride wash the feet of the bridegroom and give him a mixture of honey, curds and ghee to drink (Madhupark) Then follows the formal gift of the bride by her father and the formal acceptance of her by the bridegroom. The bride's father is made to repeat the words: I give her to you as a gift' to which the bridegroom replies: 'I accept her'.

Puete Metallu: In a shallow cup are placed two ornaments, viz. puste (mangalsutra, a string of small black glass beads with a gold disci and metallu (silver toe ring) and after they have been worshipped by the Brahman priest and passed round to be blessed by those present the bridegroom ies the puste round the bride's neck and puts the metallu on her toes

Tilabaulbium: Thread bracelets (Kankanam), dipped in turmeric water, are worshipped by the wedded pair and tied, together with pieces of turmeric, on their wrists by the priest. Rice is thrown over their heads by all the people present; the bride and bridegroom also throwing rice over each other's heads

Brahmamodi: The ends of the garments of the married couple are tied together in a knot with a piece of turmeric, a piece of cocoanut kernel and a pice. Lucky lights, placed in a shallow plate, .are then waved round their faces by married females

Arundhati Darshan: The goddess Arundhati, wife of the sage Vashistha, and represented by the pole star, is shown to the weeded pair as a pattern of constancy and fidelity Two ornaments are put in an earthen vessel, which is conjointly taken by the couple outside the house. The bashingams are then removed from their foreheads and milk and curds are given them to drink. Thereupon, the bride prepares gruel and the bridegroom turns up the earth in furrows in which he sows five kinds of seed grains. While thus engaged, his child-wife brings him the gruel to drink

Nagveli: A square is marked out on the ground, with a water pot at each of its corners. the Dots being encircled five times with a raw cotton thread Inside this are arranged the Arweni Kundalu vessels, the small earthen vessels (Palamantal) and six plates made of leaves holding lighted lamps. The bridegroom taking a dagger and the share of a plough in his hand, goes five times round the polu accompanying the bride, her parents five married women and the priest.

Airwani Kundalu and the Palamuntal vessels are united '

I am not concerned with other ceremonies mentioned in the said book. It is however stated that the marriage ceremonies are completed with trip feast

11. The same ceremonies are stated to be usually Deformed in marriage between the persons belonging to Kapus or Reddys in Caste and Tribes of Southern India by Thurston and Rahgacharl Vol III at p. 222.

12. Omitting the other side ceremonies, the essential ceremonies must tying of Mangalsutra and putting the toe ring, throwing rice over each other's head and the ceremony connected with the yoke. If these ceremonies are performed, the marriage at a Reddy couple gets completed and binding on the parties.

13. I have, therefore, to see whether these essential ceremonies have been spoken to by the witnesses in this case. P. Ws. 4 to 6 are the material witnesses in this behalf. They all speak with one voice that these essential ceremonies have been performed. A question was put in cross-examination by the accused to a witness whether Homam was performed or not to which he replied that in then community, no Homam was made at the time of marriage. They say that the Mangalsutra was tied by A-l to A-2. Toe rings were also put on the toes of A-2 by A-l A-9 chanted mantras. The rice was thrown over each others head. They also speak about the ceremonies relating to yoke. It is, therefore, clear from this evidence that' Homam is not a necessary ceremony. That evidence of the witness, in my opinion, is quite in consonance with the extracts which are made from the two learned authors. I must here refer in particular to page 229 of Castes and Tribes of Southern India by Thurston and Rangachari, Vol. III where it is stated: 'At these no Homam (sacred fire) ceremony is performed, and no worship of ferred to Vigneshwara'. When the homam itself is not there, no question of Saptapadi round the sacred fire arises because saptapadi comes in only where invocation of sacred fire is prescribed. They go together. When there is no custom in this community to invoke sacred fire, what must follow is that the requirement of saptapadi also is not necessary. I am, therefore, satisfied that when the witness says that in Reddy community Homam was not a necessary custom for a valid marriage and when it is supported by the extract from the two books cited by me above, I do not find any difficulty in holding that it was not necessary to constitute a valid marriage between A-l and A-2 that they should have performed the ceremonies of Homam and sapatapadi. Since according to the witnesses the essential ceremonies were performed, I experience no difficulty in holding that the marriage between A-1 and A-2 was validly solemnised

14. I must in this connection state that this objection was not specifically raised either before the trial Court or before the learned Sessions Judge. It is true that a ground was raised in the appeal as it is raised in this revision, but from the Judgment of the learned Sessions Judge, it appears that this question was not pressed before him It is also evident from the way in which the witnesses were cross-examined that the requirement of Homam and Saptapadi was not put to witnesses at all except to one witness as observed earlier.

15. Since no other argument was advanced, I find no valid reason to interferewith the judgment of the learned SessionsJudge. This revision therefore is dismissed.


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