Varadaraja Iyengar, J.
1. This appeal is by the complainant in a private prosecution for offences under Section 494 and Section 114 I.P.C. and is directed against the judgment of acquittal entered by the court below.
2. The complainant had married the 1st accused in Mithunam 1116. They both came from the village of Thalayolaparamba in North Travancore and belonged to the Shia sect of Muslims. They lived together cordially till 22-9-1121 when the 1st accused left the complainant for her father the 2nd accused's house for good. According to her, she was driven out forcibly by the complainant after divorcing her by words of 'Talak' pronounced.
She accordingly filed suit O. S. 428 of 1122 on the file of the Vaikom Munsiff's Court for recovery of Mahar and also certain movables. The court however found against the allegation of divorce by the complainant, but still gave judgment in favour of the 1st accused for the value of the movables: vide Ext. P-4 judgment dated 17-6-52. While that suit was pending, the complainant filed O. S 175/1124 before the Alleppy District Court, against the 1st accused and her father as 1 and 2 defendants, for restitution of conjugal rights.
That suit was contested by the 1st accused on the plea of divorce by, the complainant already alleged in her own previous suit and alternatively on grounds of cruelty and ill-treatment at his hands. The District Judge found against the 1st accused on her primary plea as to divorce but upheld her alternative plea as to cruelty and ill-treatment and in the result dismissed the suit by his judgment Ext. P-7 dated 8-1-52. It was indeed based upon this Judgment that the learned Munsiff, entered his finding in Ext. P-4 judgment above referred to. The complainant took up the matter before the High Court of Travancore-Cochin as A. Section 305/57, but without success -- vide Ext. P-5 judgment dated 20-1-1954.
3. On 10-5-1954, the 1st accused sent Ext. D-1 registered cam to the complainant intimating the fact of her having effected divorce of the complainant 'Fasakh' on the ground of his failure to maintain her from 1121 onwards. This letter returned to her as refused. She sent further letter Ext. D-2 on 18-5-1954 referring once again to the matter of the 'fasakh', but this also came back refused. Subsequently; on 18-5-1955 she married the third accused and it may be added that a child has been born to her of this union.
4. This complaint was thereafter filed before the Sub-Divisional Magistrate, Kottayam on 9-7-1956 on the footing that there was and could have been no divorce of the complainant by the 1st accused, by her 'fasakh' on 10-5-1954 as claimed by her and her second marriage with the 3rd accused was therefore bigamous under Section 494 I. P. C. Accused 2, 4 and 5 were charged with abetment of the accused 1 and 3 under Sections 404 and 114. The 2nd accused as already mentioned is the father of the 1st accused.
The 4th accused is the sister's husband of the 3rd accused and the 5th accused is the priest who officiated at the second marriage. The learned Sub-Divisional Magistrate dismissed the complaint under Section 203 Crl. P. C. after examining the complainant on oath, on the ground that no prima facie case was disclosed against the accused. However in revision the case was remanded for re-trial. It was later filed as C.C. 34 of 1956 on the file of the District Magistrate, Kottayam. Pending trial the accused 2 and 4 died. The learned District Maigstrate has now by the judgment herein acquitted the accused, 1, 3 and 5 under Section 258(1) Crl. P. C.
5. In arriving at his conclusion, the learned District Magistrate found (1) that the 1st accused did conduct a divorce of the complainant on 10-5-1954, (2) that the divorce was however unauthorised by the Muhammadan Law governing the matter, (3) that therefore the subsequent marriage of the 1st and 3rd accused on 18-8-1955 though conducted with all religious formalities, was a void; marriage and (4) that nevertheless the accused were entitled to acquittal because they had no criminal intention and the benefit of doubt should be given to them.
Mr. S. Subramania Iyer, learned counsel for the appellant complainant contends that the court below had gone wrong in thinking that criminal intention was at all necessary to be found, for a conviction under Section 494(1) I. P. C. and the acquittal was in the circumstances unwarranted. Mr. Pocker, learned counsel for the respondents-accused, questioned the finding of the court below as to the invalidity of the divorce effected by the 1st accused while supporting the conclusion of the court below on the basis it had adopted.
6. The questions that arise for consideration in this appeal are thus: (1) Are the divorce proceedings (fasakh) taken by the 1st accused valid; (2) Assuming the second marriage is bigamous have the accused been properly acquitted for want of mens rea.
7. Taking up the first question we notice, to begin with, that the court below found as a fact and this finding was not disputed on behalf of the appellant before us, that the ground of failure to maintain relied upon by the 1st accused for her divorce of the complainant was amply made out in the case. But the court below thought such ground was insufficient under Muhammadan Law to sustain a divorce outside court relying for the purpose on the decision of the Travancors-Cochin High Court in Mohammad Kannu v. Kasim Beevi, 1953 Ker LT 791 : (AIR 1954 Trav-Co. 219) and so it found against the validity of the divorce. That case had held that though under the Shafi School of Law to which the parties here belong 'inability to maintain' is a valid circumstance for a wife to annul her marriage without the intervention of the Court.
'Desertion and non-payment of maintenance are not sufficient as neither of them in the case of quarrelling spouses need necessarily be founded on lack of means and the consequent inability to maintain a wife',
and reference was made to Tyabji, Sections 205 and 207. Learned counsel for the respondents-accused urges that the distinction drawn in the passage above, between inability to maintain and failure to maintain was unduly restrictive of the Muhammadan wife's right of divorce under the Shafi Law and he relied upon the passage in Fitzgerald's Muhammadan Law (1931) page 95.
'According at least to Shafi and Malik, arrears of unpaid maintenance are a debt for which the wife can sue, and continued inability or failure to pay maintenance is a ground for dissolution of marriage. In Hanafi law inability to pay is not such a ground.'
He also argued for the application here of theameliorative principle governing Section 2(ii) of the Dissolution of Muslim Marriages Act VIII of 1939(Indian)
'2. A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: '(ii) that the husband has neglected or has failed to provide for her maintenance for a period; of two years'.
8. Dealing with the Muslim wife's right of dissolving her marriage, A. A. Fyzee in a learned article in (1936) 38 Born LR summarised the position at p. 115 as follows :
'In short, Ameer Ali, Wilson and Fitzgerald show that Muhammadan marriage being a civil contract, physical cruelty, desertion, persistent failure to maintain, contraction of a loathsome disease, insanity (Sircar, i 411, para ccexvi), gross misrepresentation, lack of consensus ad idem on a vital matter would be sufficient grounds for dissolution of marriage at the instance of the wife.'
The article examined the texts and observed :
'The Sunnis are divided into four schools, Hanafi, Maliki, Shafi and Hanbali; the Shites into innumerable ones, the most important of which are the Itbuna Ashari and the Ismaili. Considering all these six schools, it will appear that the Maliki school is the most favourable to women; the Shafi comes next; the Hanafi, Hanbali, Ithuna Ashari and Ismaili are the least favourable to them.'
and finally advocated
'(a) the adoption of the Maliki rules, in the case of the Hanafis, by their own principles; and in the case of other Sunnis by justice, equity and good conscience; and (b) the wide use of an agreement for delegated divorce (talak-i-tafwiz) on the happening of certain events.'
9. The Indian Act VIII of 1939 in fact achieved the principle above advocated. For in the course of the Statement of Objects and Reasons it was stated :
'As the Courts are sure to hesitate to apply the Maliki Law to the case of a Muslim woman, legislation recognizing and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women.'
We have therefore to hold that apart from 'inability to maintain', as such, 'neglect or failure to maintain', is quite a good ground under the Shafi law for the wife to dissolve her marriage. If so, as observed in Mulla's Muhammadan Law, 13th Edn. p. 276, Section 325 :
'Mere inability of the husband to maintain his wife is no longer a ground for refusing a divorce and it is absolutely immaterial whether the failure to maintain is due to poverty, failing health, loss of work, imprisonment or any other cause whatsoever unless, it is submitted, her conduct has been such as to disentitle her to maintenance under the Muhammadan Law'.
10. Reference may also be made in this connection to the decision in Slate v. Sheik Mohammad, (1950) 5 DLR TC 398 (Kunhi Raman C. J. and Sankaran, J.) in circumstances almost similar to those in this case that:
'A Muslim woman belonging to Shafi School can dissolve marriage, without the intervention ot the Court, on the ground that the husband is not able to maintain or that he has not been maintaining her for a considerable time.'
11. The evidence in the case also supports the contention of learned counsel. P.w. 2 Moulvi andKhateeb of the mosque and similarly D.W. 1,Musaliar, religious divine and teacher, speak offailure to maintain the wife as sufficient groundfor her to effect divorce of her husband. P.W. 3was no doubt declared hostile but his cross-examination as well as that of D.W. 1 turned more on,the factum of failure to maintain than on its effectiveness in the matter. There is no reason on thewhole, to hold that the divorce of the complainant(fasakh) effected by the 1st accused did not bring(about the dissolution of their marriage. It wouldfollow that the subsequent marriage of the 1st and3rd accused is not hit by Section 494, I. P. C.
12. The second question may not arise in the-light of our finding as above. But the question, having been argued before us, we will express our opinion thereon also. Section 494 runs as follows : --
'494. 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 of wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage 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 fakes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.'
It will be seen that the section makes no reference to intention, knowledge, fraud or deceit but constitutes the mere contracting of the second marriage a crime. But docs it mean that the normal presumption that a penal statute requires mens rea, even though it contains no express words to the effect should not be given effect to? In the celebrated decision in R. v. Tqlson, (1889) 23 QBD 168 CCR, the requirement of mens rea was read into the bigamy section, though it was not expressly mentioned and although the section itself expressed some exemptions from responsibility that did not cover that particular case.
The intent to commit bigamy was held to be negatived by the accused's mistaken belief in the death of her husband. How far the exemption accorded by the decision depends on the reason ableness of the mistake, has led to some controversy which it is unnecessary for us to pursue. It would seem anyhow that in the absence of words in the statute dispensing with proof of mens tea it should be held that the crime can be committed only intentionally or recklessly. So if a person charged with bigamy believed that he was legally free to marry again it cannot be said that the crime was committed either intentionally or recklessly and the question whether the belief was unreasonable is irrelevant. See Glanville Williams, Article 44, page 141.
In R v. Dolman, (1949) 1 All ER 813, the question was whether it was a good defence if the accused person can prove that at the time of the second marriage he had reasonable cause to believe and honestly believed that .his first marriage was void on the ground that the woman he then married was already married to another man. Streat-field, J. before whom the case came for trial in directing the Jury to hold in the affirmative said:
'If the prosecution prove that the party accused was married to one person and then went through a form of marriage with another person, that constitutes the crime of bigamy, but it has been held that bigamy, like many other offences, requires that there shall be what is known as guilty knowledge; there must be an appreciation that a crime is being committed. In many cases the law requires that in addition to an unlawful act there shall be a specific intention to do some thing or other. That does not apply here, but the person accused must have a culpable, guilty knowledge that he is doing something unlawful.' Reference may also be made to the decision in Janaki Amma v. Padmanabhan Nair, 1954 Ker LT 977 (Sankaran J.)
'In prosecution under Section 494 the accused's criminal intention in the act complained of against him is of greater importance and significance than the question of any civil right as between himself and the complainant. Criminal intention or guilty knowledge must be made out against the accused before the act complained of can be held to constitute a penal offence. It is clear from the expression 'having a husband or wife living' that it is not enough that the individual contemplated is alive at the relevant period but also that his or her earlier marriage also is subsisting in law. Only when both these conditions are satisfied can it be said that such husband or wife was alive at the relevant period. The plea of the accused that he entered into the second marriage in all good faith and after the honest impression that his earliest marriage with the complainant had been put an end to by the order of dissolution passed by a court of competent jurisdiction has to be accepted as a valid defence'.
13. In this case as the learned District Magistrate has found, the 1st accused took learned opinion that she could effectively divorce the complainant and went through the formalities thereof. She then gave notice to the complainant, waited for some time and then married the 3rd accused. There could therefore have been no criminal knowledge that her first marriage with the complainant was subsisting when she entered into the second marriage. If accused 1 and 3 were not in the circumstances guilty of the crime under Section 494 I. P. C., the other accused could not also be guilty of that offence read with Section 114, I. P. C.
14. It follows therefore that the judgment ofacquittal passed by the court below is beyondchallenge. The appeal will accordingly stand rejected.