Anand Parkash vs Rama Devi

M.L. Singhal, J.

Smt. Rama Devi daughter of Chokh Ram Sharma alleges to have married Anand Parkash accused according to Hindu Rites on 16.7.1975 and co habited with him as his legally wedded wife. She alleges that her marriage with Anand Parkash was subsisting when on 9.6.1982 Anand Parkash married Smt. Kaushlya daughter of Mann Singh. At the time when Smt. Kaushlya married Anand Parkash, she knew that Anand Parkash was an already married man and she was his legally wedded wife and their marriage was subsisting. She further alleges that the marriage of Smt. Kaushlya with Anand Parkash during the subsistence of his marriage with her was abetted by Anand Parkash''s father Krishan Dutt and mother Smt. Kirpa Devi and Mann Singh, Kaushlya''s father. Smt. Rama Devi instituted complaint under Section 494/109 Indian Penal Code against Anand Parkash, Smt. Kaushlya, Krishan Dutt, Smt. Kirpa Devi and Mann Singh. After holding preliminary inquiry into the allegations of the complaint, Additional Chief Judicial Magistrate, Bhiwani found sufficient grounds to proceed against Anand Parkash, his father Krishan Dutt and mother Kirpa Devi under section 494 Indian Penal Code. He found sufficient grounds to proceed against Smt. Kaushlya and her father Mann Singh under Sections 494/109 Indian Penal Code. After trial, Additional Chief Judicial Magistrate, Bhiwani found allegations of the complaint to be correct against Anand Parkash, Krishan Dutt and Mann Singh inasmuch as he found that with Kaushlya, it was Anand Parkash''s second marriage and Krishan Dutt and Mann Singh had abetted the second marriage of Anand Parkash with Kaushlya. He sentenced Anand Parkash and Krishan Dutt to undergo RI for one year and to pay fine of Rs. 1,000/ each or in default to undergo further RI for 6 months each under section 494, 494/109 Indian Penal Code respectively. He sentenced Mann Singh to undergo RI for 6 months and to pay fine of Rs. 500/ or in default to undergo further RI for 3 months under section 494/109 Indian Penal Code. He acquitted Smt. Kirpa Devi and Kaushlya as he found that Kaushlya had no knowledge that Anand Parkash was already married and that Rama Devi was his legally married wife and that their marriage was subsisting. He found that there was no evidence against Kirpa Devi as to the part played by her in bringing about the marriage of Anand Parkash with Kaushlya.

Aggrieved from their conviction and sentence recorded by the learned Magistrate, Anand Parkash, Krishan Dutt and Mann Singh went in appeal to the court of Session. Appeal filed by Mann Singh was accepted and he was given the benefit of doubt. Appeal of Anand Parkash and Krishan Dutt was dismissed so far as conviction was concerned but sentence passed upon Krishan Dutt was modified and he was ordered to be released on executing bonds under the Probation of Offenders Act, 1958. So far as Anand Parkash is concerned, qua him the sentence imposed was maintained.

Aggrieved from their conviction and sentence recorded by Additional Sessions Judge, Bhiwani, Anand Parkash and Krishan Dutt have come up in revision to this court (Crl. Rev. No. 1207 of 1987).

Learned counsel for the petitioners has submitted that there is no evidence of the alleged second marriage of Anand Parkash with Kaushlya. It has been submitted that there is no evidence of any ceremony of marriage having been gone through by Anand Parkash and Kaushlya for uniting themselves into wedlock and if there is no evidence of any religious ceremony having been gone through by Anand Parkash and Kaushlya for uniting themselves into wedlock, it cannot be said that there was any marriage between the two. Smt. Rama Devi has stated that she was not divorced by Anand Parkash. She has further stated that Anand Parkash married Kaushlya on 9.6.1982 and it was his second marriage. She stated that the marriage of Anand Parkash with Kaushlya took place according to Hindu rites. She has nowhere stated that she was present at the time of the second marriage of Anand Parkash with Kaushlya. She has stated that regarding the second marriage of Anand Parkash with Kaushlya, she was told by one Ashrafi Devi. She has stated that her brother went to Bhiwani and verified the second marriage of Anand Parkash with Kaushlya. So far as Smt. Rama Devi is concerned, whatever she has stated about the second marriage of Anand Parkash that is hearsay. Smt. Ashrafi Devi PW2 stated that Smt. Kaushlya is the second wife of Anand Parkash. She saw Kaushlya cohabiting with Anand Parkash at his house. She was told by Anand Parkash''s mother that she had remarried her son Anand Parkash. She told Smt. Rama Devi regarding her husband Anand Parkash''s second marriage with Kaushlya. She told Rama Devi''s brother also about this fact. Smt. Ashrafi Devi has nowhere stated that she attended the alleged second marriage of Anand Parkash with Kaushlya. She has not stated that such and such ceremony was gone through by Anand Parkash and Kaushlya so that they could be man and wife. She has nowhere stated that marriage ceremony was performed by such and such Brahmin. Kailash Chand PW3 has not fared better. He has not stated that he attended the second marriage of Anand Parkash with Kaushlya. He has not stated that at that alleged marriage such and such ceremony was gone through and that ceremony was performed by such and such Brahmin. He only stated that the marriage of Anand Parkash with Kaushlya took place according to Hindu rites and ceremonies. He stated that they were told by one girl belonging to their village about the second marriage of Anand Parkash with Kaushlya (reference is to Smt. Ashrafi Devi). He further stated that then he came to village Badala and verified the fact of the second marriage of Anand Parkash with Kaushlya and the fact was found to be correct. Smt. Rama Devi''s marriage with Anand Parkash was subsisting and it had not been dissolved by divorce. Evidence of Rama Devi, Ashrafi Devi and Kailash PWs is all hearsay. Shiv Kumar PW5 stated that Smt. Kaushlya was passed off in marriage to Anand Parkash through phera ceremony. He has stated that his house is at a distance of 2 kilas from the house of Mann Singh. He has not been able to tell the name of any of the baratis''. He stated that the Brahmin who performed the phera ceremony is Chander who is his tau (uncle). He has not been able to tell the number of baratis. Keshav Dev PW6 stated that Anand Parkash''s marriage with Kaushlya took place in village Badala. It was his second marriage. Earlier marriage of Anand Parkash took place with Smt. Rama Devi. He stated that phera ceremony took place at 10./10.30 p.m. He has stated that barat consisted of 2530 baratis. Barat was in cars. Shiv Kumar is neither related to Anand Parkash nor Kaushlya. He had not been invited to the marriage by either party. His presence at the spot is, therefore, not natural. He appears to be a made up witness. Similarly, the presence of Keshav Dev on the occasion of the marriage of Anand Parkash with Kaushlya is also unnatural. He is not related to either Anand Parkash or Kaushlya. He was not invited to the marriage by either of them. Even otherwise, in their crossexamination, they have not been able to pinpoint Anand Parkash that he was attending the court facing trial. They have stated that he was some body else to whom Smt. Kaushlya was given in marriage. In marriage, only close relations and friends are invited. Shiv Kumar and Keshav Dev do not bear that stamp. Furthermore, assuming that the marriage took place at 10/10.30 p.m., it would take place in stealth and not in open. If it took place in stealth, there was no occasion for these people to have been present there in the marriage venue.

Phera ceremony has not been elucidated by them. It was held in Bhaurao Shankar Lokhande and another, appellants v. The State of Maharashtra and another, respondents, AIR 1965 SC 1564 that "the word "solemnize" means in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form. It follows, therefore, that unless the marriage is "celebrated" or performed with proper ceremonies and due form, it cannot be said to be solemnized. It is, therefore, essential for the purpose of Section 17 of the Hindu Marriage Act that the marriage to which Section 494 Indian Penal Code applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom." Prima face, the expression `whoever marries'' in Section 494 Indian Penal Code must mean `whoever ...... marries validly'' or `whoever .... 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 void by reason of 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. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they hold themselves out before society as husband and wife and the society treats them as husband and wife.

In Smt. Priya Bala Ghosh, appellant v. Suresh Chandra Ghosh, respondent, AIR 1971 SC 1153, their Lordships of the Hon''ble Supreme Court observed that "proof of solemnization of second marriage in accordance with essential religious rites applicable to parties is a must for conviction for bigamy. Mere admission by accused that he had contracted second marriage is not enough." In Gopal Lal, appellant v. State of Rajasthan, respondent, AIR 1979 SC 713, their Lordships of the Hon''ble Supreme Court observed that "where a spouse contracts a second marriage while the first marriage is still subsisting, the spouse would be guilty of bigamy under section 494 Indian Penal Code. If it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed." In this case, this, there is no evidence that essential ceremonies constituting Hindu marriage were gone through by Anand Parkash and Kaushlya to become husband and wife.

So far as the marriage of Rama Devi with Anand Parkash is concerned, that has not been disputed by the accused. They have admitted this marriage even in their statements recorded under section 313 Cr.P.C. What they have contended is that Smt. Kaushlya was married to the younger brother of Anand Parkash named Bharat Bhushan. There is no tangible proof that Smt. Kaushlya was actually married to Bharat Bhushan. Smt. Kaushlya gave birth to a son. In the birth entry, Anand Parkash is shown to be the father of the child. In the other birth entry, which is doubtful, Bharat Bhushan has been shown to be the father.

Second marriage of Anand Parkash with Smt. Kaushlya has not been brought home to the accused by any reliable evidence. In my opinion, the learned courts below were not justified in convicting and sentencing the petitioners on the charge of bigamy/charge of abetting bigamy. So, this revision is accepted. Conviction and sentence passed by courts below are set aside.

Revision allowed.