Pakenham Waish, J.
1. The complaint in this case was to the effect that A-2 was the legally married wife of the complainant; that they had lived together as man and wife for sometime after A-2 attained puberty: that A-2 owing to the ill advice of her parents A-3 and A-4 left complainant and went to live with A-3 and A-4 : that complainant filed a suit for restitution of conjugal rights against A-2, A-3 and A-4 and got a decree, and that with a view to defeat the execution of this decree A-1 married A-2 on 5th June, 1931, aided and abetted by A-3 and A-4 knowing that A-2 continued to be the legally married wife of the complainant. A complaint under Sections 484 and 114, Indian Penal Code, was, therefore, laid against the four accused (presumably under Section 494 against A-1 and 2 and under Sections 494 and 114, Indian Penal Code, against A-3 and 4).
2. The complaint was dismissed by the learned Sub Divisional Magistrate on the ground that the second marriage did not come within the purview of Section 494, Indian Penal Code.
3. A revision petition presented to the District Magistrate was summarily rejected and against this order the present Revision Petition is filed.
4. I propose to confine myself to one matter only because it is the main ground urged, and because, as I find myself in agreement with the petitioner's contention it is sufficient for the purpose of disposing, of this revision petition. It is obviously undesirable that a Revisional Court should at this stage embarassthe trial by deciding anything more than is necessary to justify further investigation into the complaint.
5. So far as the complaint and sworn statement go it seems clear that the second marriage was celebrated without any formal dissolution of the first marriage; it was against the complainant's wishes, and the latter had not apparently been returned his marriage expenses etc.
6. If the custom on the caste, as stated by complainant himself, is one that the courts will recognise, then I would not be prepared to interfere in revision with the order of dismissal, for complainant said as follows in his sworn statement 'If the wife leaves her first husband and before her second marriage if the parents compensate the first husband, a divorce deed is executed by the first husband. Even after the second marriage, if the husband is compensated, a divorce deed is given and the second marriage is considered as valid as any other legal marriage.'
7. In the face of this statement by the complainant it is not necessary to consider the evidence of the two court witnesses examined The first supports if. The second only speaks about a second marriage after divorce.
8. If then the law will uphold a custom of re-marriage by the wife during the first husband's lifetime, without a divorce or its equivalent, the Sub Divisional Magistrate was perfectly right in dismissing the complaint. But it is agreed before me that such a custom is not recognizable by the courts as being against public policy.
9. Four cases cited for the petitioner Reg. v. Sambhu Raghu 1 B. 347 Government of Bombay v. Ganga 4 B. 330 Empress v. Unni 6 B. 126 and In re Millard 10 M. 218 are not, I consider, in point.
10. In Reg v. Sambhu Raghu 1 B. 347 the finding was that it was not proved that there was a caste custom by which a woman could claim the right to marry again because her husband was a leper and that a decision of a panchayat authorizing her to do so would not validate it.
11. Government of Bombay v. Gangi 4 B. 330 decided that the marriage of a woman to her first Hindu husband was not dissolved by her embracing Islam and marrying a Muhammadan.
12. In Empress v. Unni 6 B. 126 it was found that the deed of divorce did not proceed on grounds which in that caste justified a divorce and hence a second marriage was an offence under Section 494, Indian Penal Code.
13. In re Millard 10 M. 218 is a case like Government of Bombay v. Ganga 4 B. 330 : only the second marriage was to a Christian.
14. I now come to 3 cases which are directly in point Reg. v. Karsan Goja, Reg. v. Bai Rupa 2 B.H.C.R. 117. Elji Etal v. Hathi Lalu 7 B.H.C.R. 133 and Budansa Rowther v. Fatima Bi 22 Ind. Cas. 697 : 26 M.L.J. 260 : 15 M.L.T. 107 : (1914) M.W.N. 278.
15. Reg. v. Karsan Goja, Reg. v. Bai Rupa 2 B.H.C.R. 117. It was there held
that a custom of the Talapada Koli caste that a woman should be permitted to leave the husband to whom she has first been married, and to contract a second marriage (natra) with another man in his life-time and without his consent, was invalid, as being entirely opposed to the spirit of the Hindu Law; and that such marriage was 'void by reason of its taking place during the life of such husband' and, therefore, punishable as regards the woman under Section 494 of the Penal Code.
16. A remark of the learned Sessions Judge who conducted that case, and whose conviction was upheld after certain findings had been called for may perhaps be quoted:
If a wife could leave her husband whenever she pleased and without any forms whatever the marriage tie would have no force at all and the intercourse of the sexes, in a caste in which such a state of society was allowed, would reduce its members to the level of the beasts of the field.
17. Elji Etal v. Hathi Lain 7 B.H.C.R. 133. The heading to that case is:
A custom which authorizes a woman to contract a natra marriage without a divorce on payment of a certain sum to the caste to which she belongs is an immoral custom and one which should not be judicially recognized.
18. In that case the husband refused to give his wife up and a document passed by the caste in 1835 was put in to show that either the man or his wife could dissolve the marriage by paying Rs. 32 to the caste, and that if a man contracted a natra marriage with a woman having a married dress (sachuri) he or his parents should pay Rs. 105 to the caste.
19. The court held
We do not find that it (the document) professes to go to the extent argued and authorizes a woman to contract a natra marriage without a divorce on payment of a certain sum to the caste, but, even admitting that it does go as far as this, we are of opinion that it is an immoral custom which should not be recognized judicially.
20. Budansa Rowther v. Fatima Bi 22 Ind. Cas. 697 : 26 M.L.J. 260 : 15 M.L.T. 107 : (1914) M.W.N. 278. This was, like Government of Bombay v. Ganga 4 B. 330 a case of a Hindu married woman embracing Islam and marrying a Muhammadan during her husband's life-time.
21. It was held that in testing whether the first marriage was still subsisting or not at the time of the second marriage, the principles of Hindu Law must be applied.
22. One of the contentions (No. 4) put forward in that appeal was
that by the custom and usages of persons belonging to the Palli caste (the caste of the woman in the case) 'marriage with a second husband during the life-time of the first husband is permissible; and that the onus lies on them who assert that such a custom is not applicable in a particular case to prove it.
23. On this Sadasiva Aiyar, J. observed:
I might however, emphatically endorse his (Spencer, J's) view that if there is a custom among any community of allowing a woman to marry again during the lifetime of her first husband without any defined rules by whieh the marriage with her first husband is dissolved before the second marriage is contracted such a custom is contrary to public policy and morality and cannot be recognized by the courts.
24. In support of the order were quoted Sankaralingam Chetty v. Subbanchetti 17 M. 479 and Jukni v. Queen Empress 19 C. 627.
25. The first does not, I consider, at all support the order in this matter.
26. It was there held that there is nothing immoral in a caste custom by which divorce and re-marriage are permissible on mutual agreement on one party paying to the other the expenses, of the letter's original marriage (parisam).
27. The court expressly found that Elji Etal v. Hathi Lalu 7 B.H.C.R. 133 was not in point 'since the question there was whether the caste could sanction a woman re-marriage without a divorce, i.e. without proceeding to which both husband and wife were parties. Here the finding is that there has been a divorce according to the custom of the potters in Tinnevelly.
28. Jukni v. Queen-Empress 19 C. 627. In this case it was held 'that a conviction under Section 494 of the Indian Penal Code, cannot be supported where there is evidence to show that by the custom of the caste sagai or nikka marriage wad admissible and that the husband had relinquished his wife.'
29. In that case the lower Court had found that the first husband had not abandoned his wife, but the High Court held to the contrary. They observed that a decision (which they do not specify) of the Bombay High Court had been pointed out to them under which the second marriage would not even so be binding, but they say that a second marriage has for a Long time been recognized by the court among certain classes of people in this country.
30. In this case it may very well be that the learned Judges held relinquishment by the husband to constitute a sufficient dissolution of the first marriage. If, however, their view really connects with the decision of the Bench of our own court in Bundasa Rowthar v. Fatima Bi 22 Ind. Cas. 697 : 26 M.L.J. 260 : 15 M.L.T. 107 : (1914) M.W.N. 278 I am bound to follow the latter.
31. If the second marriage was an offence under Section 494, Indian Penal Code, at the time it was performed that offence cannot be obliterated by a subsequent divorce from the first husband or by a settlement with him even though such may be the caste usage as stated by the complainant.
32. I feel, therefore, bound to hold on the authority of Reg. v. Karsan Goja, Reg. v. Bai Rupa 2 B.H.C.R. 117 Elji Etal v. Hathi Lalu 7 B.H.C.R. 133 and Budanta Rowther v. Fatima Bi 1 B. 347 that the custom admitted by the complainant of a second marriage during the lifetime of the first husband and without the first marriage being annulled by divorce or in come formal manner recognised by caste usage equivalent to divorce (the mere wish of the woman against that of her husband being insufficient) is an offence under Section 494, Indian Penal Code.
33. I abstain from expressing an opinion whether there can be divorce among this caste without the consent of the husband on certain other conditions being fulfilled because, as I said, it is most undesirable at this stage to embarrass the trial by deciding anything that is not absolutely necessary for the purpose of allowing the petition.
34. The order of dismissal is, therefore, set aside and the complaint should be further enquired into. As the dismissal was on a pure point of law, I see no reason why the Sub Divisional Magistrate should not try the case.