Renupada Mukherjee, J.
1. This Rule was issued at the instance of Sm. Swapna Mukherjee challenging the validity of an order of acquittal passed by a Magistrate, First Class, Midnapore.
2. The facts which have led up to the present proceedings may thus be stated briefly. The petitioner Swapna Mukherjee and opposite party 1 Basanta Ranjan Mukherjee were born Christians and they were married in Christian form in 1946. They had a few children and then it appears that in 1950 differences arose between the husband and the wife which led to the separation between the two. The opposite party 1 became a convert to Hinduism and he took a second wife, namely, Sm. Renuka Devi, opposite party 3 of this case. Opposite party 4 Jagadish Chandra Bhattacharji is the father of Renuka Devi and opposite party 2 Mrs. Parimal Hasini Mukherjee is said to have instigated the second marriage of Basanta Ranjan. According to the case of the petitioner, Basanta Ranjan Committed bigamy by contracting a second marriage with Renuka Devi in 1952 and opposite parties 2 to 4 are said to have aided and abetted the above marriage. Accordingly opposite party 1 was charged with having committed an offence under Section 494, I.P.C., opposite party 2 was charged with having committed an offence under Section 494/109, I.P.C., and the remaining two opposite parties Renuka Devi and Jagadish Bhattacharji were charged under Section 494/114. All the accused persons pleaded not guilty before trying Magistrate and the learned Magistrate acquitted the accused persons under Section 258(1), Criminal P. C. holding that they were not guilty of the charges framed against them. The present Rule is directed against this order of acquittal.
3. The broad facts of this case are not in dispute. It is an admitted fact that petitioner Swapna Mukherjee and opposite party 1 Basanta Ranjan Mukherjee were married in Christian form in a Church in Midnapore district in 1946. It is not also disputed that since 1950 differences arose between the parties which made a joint life practically impossible. From the records or the trying Magistrate it would appear that each side is recriminating the other with ill-treatment and desertion. We are not, however, concerned with the truth or otherwise of those allegations. What is important for our purpose is whether Basanta Ranjan committed bigamy by taking a second wife according to the Hindu form of marriage. The learned Magistrate held that before contracting a second marriage Basanta Ranjan became a convert to Hinduism and so in the opinion of the Magistrate no bigamy was committed by Basanta Ranjan because according to Hindu law he was entitled to take more than one wife after his conversion to Hinduism. If this decision of the learned Magistrate be taken as correct, then there would be no doubt that no offence of bigamy was committed by opposite party 1 and whatever other remedy the petitioner may have against her husband, she is not entitled to prosecute him successfully on a charge of bigamy.
4. Mr. Majumdar appearing on behalf of the petitioner, however, challenged the correctness of the above decision of the learned Magistrate. He contended that Basanta Ranjan was a born Christian and having already taken a wife according to the Christian form of marriage, it was not permissible for him to become a convert to Hinduism and to take a second wife according to the Hindu form of marriage. In other words, it was the contention of Mr. Majumdar that the so-called conversion of Basanta Ranjan to Hinduism is no conversion at all in the eye of law or religion and so the marriage already contracted between him and Swapna Mukherjee still subsists.
5. For the purpose of the present Rule we shall assume that the above contention of Mr. Majumdar that the conversion of Basanta Ranjan to Hinduism is not a valid conversion is correct. Accepting that proposition to be correct we shall see what consequences logically flow from that proposition. Section 494, Penal Code, runs in the following terms :
'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.'
6. On a plain reading of the section it would appear that in order that a person may be convicted of an offence of bigamy, the second marriage must be a form of marriage recognised by law, otherwise it would be simply an adulterous union and it would not be hit by the provisions Section 494, I.P.C. One of the essential ingredients of Section 494, I.P.C., is that the second marriage must be void by reason of its taking place during the life-time or the husband or the wife of the first marriage. In the present case if the contention of Mr. Majumdar be accepted as correct that there was no valid conversion of Basanta Ranjan to Hinduism, then it follows logically that the subsequent marriage between Basanta Ranjan and Renuka Devi was a void marriage not because of the existence of the Christian wife of Basanta Ranjan but because of the fact that there cannot be a valid form of marriage between an Indian Christian and a Hindu woman celebrated according to Hindu rites.
There is no dispute that in the present case the marriage was celebrated according to Hindu rites.
7. In the above connection Mr. Majumdar further contended that in order that a husband may be convicted of a charge of bigamy it is not necessary that the second marriage should be valid in all respects and in support of that contention the learned Advocate cites two cases, one of which is reported in -- 'Emperor v. Mt. Ruri', AIR 1919 Lah 389 (A), and another in -- 'In the matter of Ram Kumari', 18 Cal 264 (B). The facts involved in those two cases, however, do not support the contention put forth by Mr. Majumdar. It would appear that in those two cases the second marriage was contracted between parties who were both competent parties to enter into the marriage. In the present case, however, such competency was wanting on the part of the husband, he being an Indian Christian according to the contention of Mr. Majumdar and the other party, namely, Renuka being a Hindu. That being the case, the petitioner has failed to make out any case on her own showing and the Rule must be discharged because no case for interference with the order of the learned Magistrate has been made out on the allegations made in the application presented by the petitioner in this Court. Before parting with this case, we however like to make it clear that we are not expressing any opinion of our own as to whether the conversion of Basanta Ranjan to Hinduism was a genuine or valid conversion. If necessary that question will have to he adjudicated by a competent Civil Court. All that we mean to say is that no case for interference with the order of acquittal has been made out.
8. This Rule is therefore discharged.
9. I agree.