M.L. Jain, J.
1. The facts of this revision petition are that Mst. Kiran Devi filed a complaint in the court of the Judicial Magistrate, Bikaner, on 19th September, 1970, that she was married to accused No. 1, Thakur Das on 10th February, 1969. But on 24th June, 1970, he married accused No. 2 Mst. Baodi alias Mst. Pushpa in conspiracy with the remaining other 10 accused persons. She brought a complaint that the accused have committed an offence under Section 494/100 IPC and should be punished for the same.
2. The learned Magistrate issued process against all the accused persons named in the complaint but since the warrants of Mst. Pushpa and her father remained unserved, he appears to have dropped the proceedings against them. After recording the evidence of five witnesses, the learned Magistrate by his order dated 11th September, 1972, discharged the remaining accused persons as well. He held that it was not proved that the marriage between Thakur Das and Mst. Pushpa was solemnised in accordance with law. A revision was taken against this order but it was dismissed by the learned Sessions
Judge on 5th March, 1973. The learned Sessions Judge discussed the evidence and had come to a similar conclusion. So aggrieved, Mst. Kiran Devi has filed this revision petition in the High Court.
3. I heard the arguments and perused the record. According to Section 17 of the Hindu Marriage Act, 1955, any marriage solemnized between two Hindus after the commencement of the Act is void if at the date of such marriage either party has a husband or wife living; and the provisions of Sections 494 and 495 IPC applied accordingly. According to Section 7 of the said Act, 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 'Saptpadi' i.e. taking of seven steps by the bridegroom and the bride jointly before the sacred lire, the marriage becomes complete and binding when the 7th step is taken. The case of Mst. Kiran Devi and her witnesses is that 'Saptpadi' was not a necessary requirement of the rites and ceremonies of marriage solemnised in their community. Mst. Kiran Devi has deposed that when she was married to Thakur Das, there was a sacred fire and the couple went round the fire only four times. The pandit pronounced seven words and her marriage with Thakur Das was declared to have been solemnised. Her father Bulaki Das PW4 has stated that Kiran Devi was married with Thakur Das according to the Hindu rites and ceremonies. There were only four steps taken round the sacred fire and 'Saptvachans' were pronounced. It was submitted that this evidence was sufficient for holding that 'Saptpadi' was not included in the customary rites and ceremonies of the parties. Kishan Kumar PW3 had seen the second marriage of Thakur Das being solemnised in his presence. He deposed that four 'Pheras' were taken and 'Saptvachan' were duly recited. It was, therefore, urged that the marriage in question was solemnised in accordance with the customary rites and ceremonies of the parties. The learned course] further drew my attention towards the statement of Bulaki Das PW4, who went to the house of Thakur Das where he saw his second wife sitting with a veil on her face. He told Kiran that he had already married & she was no more required. He threw her out of the house and banged the door on her. This admission on the part of the accused clearly proved that the accused had married for the second time. It was contended that the courts below were not correct in holding that the marriage was not solemnised in accordance with law. The learned Counsel then urged that the petitioner had submitted a long list of witnesses but the Magistrate examined only live of them. The petitioner was advised by her counsel that at the stage of framing of the charge the evidence of five witnesses established a prima facie case and therefore, the petitioner reserved the examination of the remaining witnesses to be produced at a later stage. The learned Magistrate further did not even care to examine the accused under Section 342 Cr.P.C. and discharged them of the offences.
4. As far as non-examination of the accused is concerned, it cannot be considered an illegality because it was a matter in the discretion of the Magistrate. As regards that only 5 witnesses were examined, it was pointed out by the learned Counsel for the respondents that complainant was given several adjournments and it was she herself who closed the evidence. Therefore, the Magistrate is not to blame for the non-examination of the remaining witnesses of the prosecution.
5. Nov, except Mst. Radha Devi PW5 no other witness has said that the second bride was accused Pushpa d/o Amba Lal Purohit All the other eye witnesses have stated that they had seen the marriage of Thakurdas being solemnised with some girl. Mst. Radha Devi in cross-examination deposed that she had not seen the face of the bride because it was observed with veil. In this state of evidence, it cannot be said that the learned Sessions Judge was wrong in saying that no marriage of accused Thakur Das with Pushpa as alleged has been proved.
6. According to the Hindu law sacred fire & seven steps are necessary for solemnisation of marriage unless these are modified or dispensed with by custom. But Section 7 of the Hindu Marriage Act now lays stress upon customery rites and ceremonies. If 'Saptpadi' as a part of such rites and ceremonies, then alone it is necessary to prove that 'Saptpadi' was also taken round the sacred fire. In Priyabala v. Suresh Chand AIR 1971 SC 1153, the Supreme Court held that the proof of solemnisation of second marriage in accordance with essential religious rites applicable to parties is a must for conviction of bigamy. In Kanwal Ram v. Himachal Pradesh Administration : 1966CriLJ472 it was held that in a prosecution for bigamy, the second marriage has to be proved as fact and it must also be proved that necessary ceremonies had been performed. It was also laid down that admission of a marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery. In Bhairoo Shanker v. State of Maharashtra : 1965CriLJ544 the. Supreme Court stated that the expression 'who ever marries' in Section 494, Penal Code must mean 'who ever marrks validly or who ever marries and whose marriage is a valid one'. If the marriage is not a valid one according to the law applicable to the parties, no question of its being held by reason its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. Even if I were to hold that the complainant was successful in establishing that in her community a marriage is considered solemnised as soon as four rounds of the fire are taken by the couple and seven words are pronounced, then, too it has not been proved as a fact by the prosecution that Thakur Das had married Mst. Pushpa. It was very necessary to establish the identity of the bride. I, therefore, see no reason to interfere with the findings of fact arrived at by the learned courts below, there being no illegality or impropriety therein.
7. Consequently, I dismiss the revision petition.