1. This rule has been issued on the ground that the evidence is legally insufficient for a conviction under Section 498, I.P.C. The complainant belongs to a low caste Hindu sect known as Rajbangshi. His case is that he had married the woman said to have been enticed away in the form which is known among them as nika marriage, that is, marriage with a widow. The point that has been urged before us is that there is not sufficient evidence on the record of legal marriage. It is not necessary to consider the circumstances under which the witnesses for the prosecution were not cross-examined by the defence because on the evidence as it stands, the marriage between the complainant and the woman has not been proved. The only evidence of marriage that has been adduced in this case is that the complainant put vermilion on the forehead of the woman and that there was a feast of the caste people. There is no evidence that any mantra was recited or whether there was any priest who officiated and solemnized the marriage. According to the Hindu Law certain ceremonies have been laid down as necessary for a valid marriage. There is no evidence that any such ceremony was observed on the occasion of this marriage of the complainant with the woman. But among the Hindus there are forms of marriages called customary marriages which are in the nature of exceptions to the recognized forms of marriage. They deviate a great deal from the orthodox style; but as it is observed in Sir Gooroo Das Banerjee's Tagore Law Lectures (The Hindu Law of Marriage and Stridhan, Edn. 3, p. 238) the customary rites must be strictly proved; in other words, there must be satisfactory and sufficient evidence on the record that a marriage other than that solemnized under the general law may be effected in a particular way. There is no evidence in this case that among the caste to which the complainant belongs it is enough for a valid marriage to put vermilion on the forehead of the wife and give a feast to the caste people. The fact that the woman lived with the complainant for a long time and bore children is not evidence of a valid marriage. In this view I hold that the evidence of marriage in this case is insufficient for the purpose of Section 498, I.P.C. We accordingly set aside the conviction of and the sentence passed on the petitioners and direct that they be discharged from their bail bond.
2. The Rule was issued to show cause why the conviction and sentence passed on the petitioners under Section 498. I.P.C. should not be set aside on the ground that the evidence is legally insufficient for a conviction under that section.
3. The main contention is that there is no proof of a valid and legal marriage, and that therefore the conviction cannot be supported. It is well settled that in cases, where marriage is an ingredient of an offence, the fact of marriage must be strictly proved. Is there any such proof here? The evidence on the point is given by the complainant and two witnesses and is to the effect that the marriage, a nika marriage was solemnized by applying 'vermilion' to the forehead of the bride followed by a feast. It is also said a barber was present.
4. The two witnesses referred to above were not cross-examined, so that their evidence is unrebutted. But is it sufficient? It seems probable that the facb of the marriage was not seriously disputed at the trial, but the prosecution was nevertheless bound to prove that a valid marriage had taken place. No doubt among the poor and ignorant classes the same importance is not attached to forms and ceremonies as among the upper classes. But it is also to be borne in mind that loose unions without any sort of marriage at all are not uncommon among the lower orders. It is essential in such cases that the fact of marriage be proved, and I am not prepared to hold that the meagre and unsatisfactory evidence which has been adduced in this case was sufficient to discharge the onus of proof. The barber referred to as having been present at the marriage was not called as a witness, and no explanation of this omission has been given. Some evidence too might have been given to establish that the marriages of this particular class of people are validly performed in the manner described by the complainant and his two witnesses. No such evidence is forthcoming. I agree therefore that the Rule should be made absolute.