A.D.V. Reddy, J.
1. This appeal is by the husband, whose complaint against his wife and others for the offences under Sections 494 and 494 read with Section 109, I.P.C. had resulted in acquittal of the accused of the charges against them.
2. In the complaint he alleged that on 14-5-66 he had married A-1, who is the daughter of A-3 at their house at China Lingala Village according to Hindu Dharmasastra and thereafter she resided with him for five years and then left him, that the second marriage of A-1 with A-2 was proposed to be performed on 18-6-19,70 at 10-40 A.M. in the Kanakadurga temple situated at Vijayawada, but for reasons best known to them, the venue was changed and the marriage was performed at Sri Venkateswara Swamy temple in Jamalapuram Village of Madhira Taluk, that A-1 to A-3 knowing that A-1's marriage with the complainant was not dissolved, got the second marriage of A-1 with A-2 performed without obtaining a decree for divorce and they had thereby committed an offence under Section 494, I.P.C.. that A-4 and A-5 who were mediators at the first marriage, had organised and attended the second marriage between A-1 and A-2 and thereby they had committed the offence under Section 494 read with Section 109, I.P.C.
3. In order to prove the first marriage, the complainant had examined himself and also F.Ws. 5 and 7 who had attended the marriage as well as P.W. 6 the Purohit who officiated at the marriage besides filing Ex. P-l the marriage invitation card. To prove the second marriage he had examined P.W. 2 the Ar-chaka who had presided over the marriage in the Sri Venkateswara Swamy temple at Jamalapuram and also P.Ws. 3 and 4 the clerk and the Executive Officer of the said temple and got filed Ex. P-2 the wedding invitation card for that marriage, Ex. P-3 the marriage register of the said temple containing the relevant entry Ex. P-4 with the signature Ex. P-5 of P.W. 2, and also Ex. P-6 the counterfoil of the receipt book for the receipt issued for the payment of money for performing the said marriage in the temple.
4. The Magistrate on a consideration of the evidence found that the first marriage between the complainant and A-1 as well as the second marriage between A-1 and A-2 did in fact take place. He however held that it is not clear whether the marriage between the complainant and A-1 had been performed according to law or the caste custom and with regard to the second marriage, he held that the complainant has failed to establish that the marriage between A-1 and A-2 has been solemnised in accordance with customary rights as required by Section 7 of the Hindu Marriage Act, that it was not performed in accordance with the essential requirements of a valid marriage under Hindu Law, as the two essential requirements of invocation before the Sacred Fire and Saptapadi i.e. taking of seven steps by the bride and bride-groom together around the Sacred Fire, have not been performed, that the marriage does not come within the expression of 'solemnised' occurring in Section 17 of the said Act and does not attract the mischief of Section 494, I.P.C. and acquitted all the accused of the charges against them. Hence this appeal.
5. Though Section 494. I.P.C. making bigamy an offence has been in the statute book i.e. Indian Penal Code since 1860, bigamous or polygamous marriages amongst Hindus did not constitute an offence as such marriages under Hindu Law were valid and Section 494, I.P.C. made only second marriages which are void by reason of its taking place during the lifetime of the husband or wife punishable. It is only the passing of the Hindu Marriage Act of 19-55 by virtue of Section 17 which, made the second marriage during the lifetime of any of the spouses void, that attracted the provisions of Sections 494 and 495, I.P.C. Though it was not necessary, to state it, this section itself provides that to such marriage the provisions of Sections 494 and 495, I.P.C. will apply. Therefore any Hindu, either husband or wife, marrying a second time during the subsistence of the first marriage, would be committing the offences of bigamy. But what is the marriage that would attract the provisions has been the subject-matter of judicial interpretation, as it was thought that it was not any and every ceremony that goes by the name of marriage to attract the provision but only such marriages as are solemnized as per the Hindu Law or customary rights that would attract the provisions.
6. In the present case, an anomalous position appears to have been faced by the trial court. Though the court found that both the first marriage of A-1 with the complainant and her second marriage with A-2 had been performed they are not legal marriages and as such the provisions of Section 494, LP.C. are not attracted.
7. As far as the first marriage between the petitioner and A-1 is concerned, it is not the case of the accused that it was not performed as per Hindu rites and it is not a valid marriage. While P.W. 1 the husband stated that he had married A-1 as per Hindu rites at his father-in-law's house in China Lingala Village on 14-5-1966, both A-1 who is admittedly the wife and A-3 his father-in-law have admitted this marriage in their statements. P.Ws. 5 and 7 who have attended the marriage have also spoken to it. Ex. P-l is the marriage invitation card admittedly issued for the said marriage. The fact that P.W. 6 the Purohit, who performed the marriage had turned hostile and would not speak to the ceremonies that were conducted, would not make the marriage invalid. Hindu marriages are not registered. Evidence with regard to the marriages that has necessarily to be let in is mainly oral, except for the production of invitation card if available and preserved. It will be unfortunate if for want of certain details with regard to the ceremonies performed, these marriages are to be held to be invalid and not legal with its damaging consequences, especially when all the parties are agreed that a valid marriage had been performed. I therefore, on the above considerations And that the marriage between the petitioner and A-1 is a valid marriage. During the subsistence of the marriage in the lifetime of the spouses, if any of the spouses contracts another marriage, he or she will be guilty of the offences under Section 494, I.P.C. Even with regard to the second marriage, what Section 494, I.RC. requires is the taking place of a second marriage which is void by reason of either of the spouses of the first marriage living at that time. Till the passing of the Hindu Marriage Act and incorporation of Section 17 therein, any number of marriages by a Hindu husband were valid, as it was permitted under Hindu Law. The second marriage of a wife during the lifetime of her husband however attracted the provisions of Section 494, I.P.C. as such a marriage would have been invalid as a Hindu wife could not marry a second time, unless she be a widow, marrying under the Hindu Widows Remarriages Act. Now Section 17 of the Hindu Marriages Act has put the husband also on a par with the wife. What is however open for contention is that any form of second marriage indulged in by either of the spouses would be void during the subsistence of the first marriage, and it need not be & valid and legally enforceable marriage to attract the provisions of Section 494, I.P.C. as otherwise what was intended by the Legislature to be a social reform by penalising such second marriage, would be defeated by the interpretation of the Courts the only legal marriages are attracted. The Supreme Court has however held in Bhaurao Shankar Lokhande v. State of Maharashtra : 1965CriLJ544 that Section 17 of the Hindu Marriages Act provides that any marriage' between two Hindus solemnized after the commencement of the Act, is void if at the date of such marriage either party had a husband or wife living that the word 'solemnize' means in connection with a marriage, 'to celebrate the marriage, with proper ceremonies and in due form, according to the Shorter Oxford Dictionary, that it follows therefore, that unless the marriage' is celebrated or performed with proper ceremonies and due form it cannot be said to be 'Solemnized' and that in solemnization of a Hindu marriage, there are two essential ceremonies and they are (1) Homa (invocation before the sacred fire) and (2) Saptapadi (taking of seven steps by the bride-groom and bride jointly around the sacred fire) that only such second marriages that are duly solemnized that attract the provisions of Section, 494. I.P.C. They further held that if it is not a valid Hindu marriage as per the Sastras, it should be a marriage as per the custom of the parties to be valid and if the marriage is not a valid marriage, it is no marriage at all in the eye of law that merely going through certain ceremonies is not enough. In Kanwal Ram v. Him. Pra. Administration : 1966CriLJ472 it was observed that even admission of marriage by the accused is not evidence of it for purposes of proving the marriage in adultery and bigamy case and the marriage, wherein the essential ceremonies constituting it, had taken -place must be proved.
8. It is contended that it should not be taken as a rule that the two ceremonies i.e. Homa (invocation before the sacred fire) and Saptapadi are essential for every Hindu marriage and unless custom otherwise is pleaded and established it will not amount to a valid marriage because even Tahureton's book on Castes and Tribes in Southern India shows that a very large number of castes have their own marriage ceremonies wherein Homa and Saptapadi are not performed. But the Supreme Court had however held otherwise and in Priya Bala v. Suresh Chandra AIR 1971 SC 1153 : (1971 Cri Lj 939). the same position is reiterated and held that proof of second marriage in accordance with the essential religious rites applicable to the parties is a must for a conviction on a charge of bigamy. This would mean that the ceremonies which are most essential for the purpose of a Hindu marriage are Homa and Saptapadi, unless the parties plead and prove that they are not essential and that they have other customary rites. In this case, the petitioner in his petition stated that the first marriage was performed as per Hindu rites. He did not plead any custom. In the second marriage of A-1 with A-2 admittedly the ceremonies of Homa and Saptapadi had not been performed, though the said marriage as per the evidence and the findings of the two Courts below did take place. Even the Archaka at Sri Venkate-swara Swamy Temple at Jamalapuram who presided over the marriage stated that the marriage was performed according to the Puranayuktha procedure and (as per its requirements, 'Bhashingam' |was tied, Vigneswar Puja was performed, Punyavachanam and Kankanaruia were done, new clothes were presented to the new couple, Mangalyapuja was performed, Jeelakarra Bellam was presented, Telambralu were poured and after tying of the Brahma Mudi, Nallapoosalu were tied and Mangalasutram was also tied that all these formalities and rituals were performed in his presence. He has not spoken to the performance of Homam and Saptapadi. He has also not stated that according to Puranayuktha procedure, these are not necessary, and it was not also established that Puranayuktha form of ritual is the one adopted as the customs of their community at their marriages. Therefore, I am constrained to hold that the second marriage was not a valid marriage and not being a valid marriage, the provisions of Section 494, I.P.C. are not attracted. Though A-1 and A-3 who admitted the first marriage of A-1 with the complainant, had got performed a second marriage for A-1 with A-2 they and others who are said to have abetted, will not be liable for the offence under Sections 494 and 494 read with 109, I.P.C. The Magistrate has therefore rightly acquitted them of the charges against them.
9. This appeal fails and is dismissed.