A.K. De, J.
1. The petitioner is one of the five accused in complaint Case No. C/633 of 1971. Opposite Party No. 1 filed the complaint alleging that Miserilal, accused No, 1 in the case, married her according to Hindu rites some 28 years back. Petitioner was engaged as a tutoress for their four female children sometime in November, 1968. Because of her objectionable intimacy with Miserilal, her employment as the tutoress was ended in the first part of 1969. She came to know in the later, Rart of 1969 that Miserilal had started living with the petitioner a* husband and wife at another address, She had come to learn on enquiry that Miserilal had married the petitioner on 27-9-1969 before a Marriage Officer. The other three accused, with knowledge that Miserilal was married with a wife living signed as witnessess in the second marriage. The learned Magistrate on her complaint summoned the petitioner under Section 494/114 of the Indian Penal Code.
2. Learned Magistrate has, after taking evidence produced by the complainant, framed a charge under Section 494/109 of the Indian Penal Code against the petitioner. She has moved this Court in revision for quashing the charge and the proceeding against her.
3. If a husband having a wife, marries in any case in which the later marriage is void by reasons of its taking place during the lifetime of the wife o* the former marriage, he commits an offence under Section 494 of the Indian Penal Code. A person is punishable under Section 109 of the Indian Penal Code Mi he abets an offence and the abetted offence is committed in consequence of his abetment' and no punishment is prescribed for the abetment, It is, therefore, necessary, for framing a charge under Section 494/109 pf the Indian Penal Code against the petitioner to establish (1) that an offence under Section 494 has been committed and (2) that it has been committed in consequence of the petitioner's abetment i.e., with the aid given by the petitioner. t
4. There is a catena of decisions of the Supreme Court to the effect that the later void marriage- in case of a charge under Section 494 has to be satisfactorily proved. In case of a marriage according to Hindu rites it is to be proved that (a) saptapadi and &>) homam were performed and observed in celebrating jthe second marriage. In this case the evidence is that Miserilal and the petitioner were married according to Hindu rites and that they later had that marriage registered under the provisions of the Special Marriage Act, 1954, No evidence as to the performance of the saptapadi and homam in celebration of the marriage between Miserilal and the petitioner according to Hindu rites has been given. The complainant has sought to prove the later void marriage with the petitioner placing reliance on the Certificate of Marriage (Ext. 2) granted under Section 16 of the Special Marriage Act, 1954. The submission is that the certificate proves the marriage.
5. This contention does not appear to me to be sound. Chapter II of the Special Marriage Act, 1954, to be hereafter called the Act, deals with solemnization of special marriages. Chapter III of the Act deals with the registration of marriages celebrated in other forms. For a marriage solemnized under Chapter II the Certificate of Marriage is issued under Section 13. Sub-section (2) of Section 13 is that the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under the Act has been solemnized and that all formalities respecting the signature of witnesses have been complied with. For a marriage celebrated in other forms but registered under Chapter III the Certificate is issued under Section 16 and has the effect as laid down in Section 18. The registration of marriage celebrated in any other form has two-fold effect;
(i); notwithstanding any defect as to the validity of the original marriage in any other form it is validated by such registration under Section 16; and
(ii) whatever question there might be with regard to the legitimacy of children born of that wedlock they shall in all resDects be deemed to be and always to have been the legitimate children of their parents.
6. By reason of such registration under Section 16, the consequences of marriage under the Act, adumbrated in Sections 19. 20 and 21 will follow. Moreover the parties to the marriage can avail themselves of the provisions in the rest of the sections subject to the provisions of Section 24(2).
7. This registration of marriage, celebrated in other form does not make the earlier marriage in other form,, nonexistent but only by the amending provision of Section 18 make available to the parties certain extended benefits viz., the consequences in Chanter IV. A person married according to Hindu rites was not before 1951, entitled to apply for divorce or a decree of nullity. By registration under Section 15 and the deeming provisions of the Section 18 of the Act, he be- , came entitled to those conseauencea. The Hindu Marriage Act providing for divorce etc.. came to be enacted in 1955. It will be pertinent to refer to the forms of cer- tificate of Marriage under Sections 13 and 16 of the Act in the Fourth Schedule and in the fifth Schedule of the Act. In the Certificate under Section 13 the Marriage Officer certifies that the parties appeared before him, made the declaration required by Section 11 and that a marriage under the Act was solemnized between them in his presence. But in the Certificate under Section 16 he certifies that the parties appeared before him, have declared that a ceremony of marriage has been , performed between them and that they have been living together as husband and the wife since the time of their marriage,-and that in accordance with their desire t0 have their marriage registered under this Act it has been so done. He does not certify that the marriage has been solemnized in his presence. It records a decla- ' ration by the parties that they have gone through another form of marriage before the registration and have been living as husband and wife. The Certificate (Ext. 2), in these circumstances, cannot be any evidence proving the marriage of Miserilal with the petitioner. Conditions relating to solemnization of special marriages under Chapter II have been laid down in Sections 4 and 6; for registration of marriages celebrated in other form the conditions are in Section 15. A comparison of these two sections clearly makes out the difference between the two forms and their effects and consequences. For > a marriage to be solemnized under Section 4 the first condition is that neither party shall have a spouse living. A marriage celebrated in another form: the first condition to be fulfilled is that neither party shall at the time of the registration have more than one spouse living. The declaration that Miserilal and the petitioner made before the Marriage Officer is marked ID3. They have declared 'neither of us has more than one spouse'. This declaration, so far as it is made by Miserilal, is false. He had on the date of the declaration two spouses .namely, the complainant whom he. married 28 years back and the petitioner marriage with whom he was proposing to register. This. false declaration has made the registration liable to be cancelled as is clear from, Sub-section 2 of Section 24. A declaration to that effect under Section 24(21 has, in fact, been obtained from a CiVil Court. Miserilal and the petitioner also stated that before the police Officer as is seen from the G. D. entry (Ext. 5). It was submitted before me that the said declaration from the Civil Court under Section 24(2) of the Act had been obtained fraudulently. Whether or not that is so needs no consideration in this proceeding. I have already made it clear that the Certificate (Ext. 2), granted under Section 16 of the Act, is no evidence proving the marriage between Miserilal and, the petitioner, according to Hiizdu rites. To make out a case under Section 494 of the Indian Penal Code the complainant was required to prove satisfactorily that the alleged marriage took place between Miserilal and the petitioner according to Hindu rites prior to the registration on 27-9-1973. That certificate also does not prove any marriage at all. It only has recorded the declaration by the parties that they have gone through another form of marriage before the registration. That declaration is no proof of that marriage. The complainant was required to give evidence for proving that marriage which has been recorded in Certificate (Ext. 2). In this view of the matter, the petitioner has succeeded in establishing that neither the complaint nor the evidence given by the complainant makes out a case under Section 494 of the Indian Penal Code, Necessarily no case under Section 494/109 of the Indian Penal Code has been made out against the petitioner. Further continuance of the proceeding will be -an abuse of the process of the court.
8. I have already pointed out that the case in the complaint is the later void marriage took place on 27-9-1973 before a Marriage Officer and is not that a marriage was celebrated according to Hindu rites. I have already held that no marriage is proved when he performed (sic) according to any law on 27-9-1973. I have already pointed out that there is no evidence proving the marriage, alleged to have taken place prior to the, registration under the certificate (Ext. 2). No case has. therefore, been made out afiainst the petitioner. No charge should have been framed against her.
9. In the premises I make the Rule absolute, set aside the order of the learned Magistrate framing a charge under Section 494/109 of the Indian Penal Code against the petitioner and,quash the charge and the proceeding against her.