In Re: P. Kondiah and Another

Chandra Reddy, J.—This revision petition is against the Judgment of the Sessions Judge of Masulipatam confirming the conviction of the first accused u/s 494, I.P.C. and the sentence of four months'' rigorous imprisonment and the conviction of the 2nd accused u/s 4 (3) of the Madras

Hindu (Bigamy Prevention and Divorce) Act and the sentence of Rs. 60 in default, imprisonment.

The case against the first petitioner is that he took a third wife while his marriage with the second wife subsisted. Several pleas were taken by the

accused, but all of them were rejected and the petitioners were found guilty by the Additional First Class Magistrate, Bandar, which was confirmed by the Sessions Judge of Masulipatam.

In revision, the propriety of the convictions is questioned by Miss Sarala on the ground that the complaint is filed by one who is not a person

aggrieved within the meaning of Section 198, Criminal P. C. From the provisions of Section 198, it is clear that only a complaint filed by a person aggrieved by an offence u/s 494 I, P. C. could be taken cognizance of by a court. So, unless P. W. 1 is a person within the purview of Section

198, Criminal P. C., the Magistrate would not be competent to entertain the complaint.

The question for consideration is whether P. W. 1 is a person aggrieved by the third marriage of the first accused. Admittedly, P. W. 1 is only

the second wife of the first accused. It is also in evidence and it is not disputed before me that the first accused's first wife is alive even today. The next point is whether the marriage with that wife was in force on the date of the second marriage, There Js no evidence that on the date P. W. 1

was married to the first accused or even subsequently the first accused obtained a divorce of his first wife. It is curious that the learned Sessions

Judge should have observed that there is no evidence that there is a subsisting marriage between the first accused and his first wife. Once it is proved that there was a valid marriage, it is for the party concerned to show that that marriage has been dissolved and there is no subsisting marriage and it is not for the other side to show that that marriage still subsists.

The only evidence let in is that there is a custom or practice of divorce in the community to which the parties belong. That would not be sufficient to establish the actual divorce effected between the first accused and his first wife, Merely because there is a custom amongst the members of the

community, it does not necessarily follow that there has been a divorce of the first wife. If that is so, the marriage of P. W. 1 herself with the first

accused is null and void. If her marriage is "ab initio" void and if there is no legal and valid marriage, she cannot be said to be the wife of the first

accused. Hence she cannot have any grievance and she cannot be a person within the scope of Section 198, Criminal P. C. Consequently, there has been no valid prosecution against the first and second accused.

It follows that the convictions and sentences must be set aside and the petition allowed.