Sivagami vs S. Nagalingam

S. Akbar Basha Khadiri, J.—The complainant before the trial Court has come forward with the instant appeal against order of the XI Metropolitan Magistrate, Saidapet, Madras in C.C. No. 2223 of 1985.

The Appeal has arisen in this way:

The complainant is the legally wedded wife of the accused Nagalingam. The marriage between the complainant and the accused was celebrated on 6.9.1970 in Keelkolathur Village in Cheyyar Taluk in North Arcot District. In the lawful wed-lock, three children were born to them. Later, the husband ill--treated the wife, as a wife of which she had to live away from him. Later, she came to know that the husband took one Kasthuri as the second wife on 18.6.1984. She came to know that the marriage was performed in R.C.C. Marriage Hall, at Thiruthani Temple as per the Hindu

rites. She had preferred a private complaint before the learned Metropolitan Magistrate against the husband and certain other persons in C.C. No. 2223 of 1985. The learned Metropolitan Magistrate conducted the trial and came to the conclusion that the offence is not established and accordingly acquitted all the accused. As against the acquittal, the complainant preferred Criminal Appeal No. 67 of 1992. This Court passed orders on 1.11.1996 setting aside the acquittal of the husband and directed the trial Court to hold trial and decide the matter. At the time of the earlier trial, the complainant had examined herself as P.W.1. She had examined one Panchatcharam, a clerk employed in Tiruthani Temple, who was maintaining the books and registers where entries relating to the marriages are entered into and also P.W.3 Kameswara Rao, the prohit, who had solemnized the marriage. She had produced three documents, namely, a letter issued on 11.4.1995 by Subramania Swamy Temple. Ex.P.2 Xerox copy of the forms to be filled up for seeking permission for marriage and Ex.P.3 the copy of the Certificate issued by the Village Officer to the effect that the marriage between the accused and his second wife Kasthuri was the first marriage for them. The accused had not let in any oral or documentary evidence. After remand, the complainant recalled Kameswara Rao, the prohit and examined him. The prohibit had given all the details of the ceremonies that were performed at the time of the solemnization of the marriage. After following the procedure, the learned Metropolitan Magistrate again came to the conclusion that "Sapathapathi" had not been performed and therefore, the second marriage is not a validly solemnized marriage to attract the provision of Section 17 of the Hindu Marriage Act to make the second marriage as bigamous marriage and accordingly acquitted the accused. As against the acquittal, the wife/complainant has come forward with the instant criminal appeal.

Heard, both the sides. The only ground on which the learned Metropolitan Magistrate had acquitted the accused is that the Appellant herein had not established that the marriage between the accused and Kasthuri was a bigamous marriage. Section 494 I.P.C. recites as under:

494 Marrying again during life time of husband or wife - 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.

Exception: The Section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Therefore, the essential ingredients to attract the offence u/s 494 I.P.C; (i) the accused must have contracted the first marriage; (ii) the first marriage must be subsisting (iii) the accused must have married again; and (iv) both the marriages must be valid in the sense that necessary ceremonies must have been observed.

The leaned counsel for the Respondent submits that even the facts in the complaint are taken to be true, they by themselves would go to show that there had been no valid second marriage.

In Gopal Lal Vs. State of Rajasthan, the Apex Court has held that to attract the provision of Section 494 I.P.C. the second marriage should be a valid marriage and becomes void u/s 17 of the Hindu Marriage Act.

In his judgment, the learned Metropolitan Magistrate has referred to the decision report in Urmila v. State of U.P. 1994 CRL.D.J. 2910 and the decision reported in Lingari Gokulamma v. Venkatareddy and Ors. AIR 1979 S.C. 654 These cases relate to a marriage performed in Karnataka Slate and U.P. State. It is unfortunate that the learned Metropolitan Magistrate has not adverted his attention to the State Amendment made to Section 7 of the Hindu marriage Act. Section 7-A has been introduced by the T.N. Act 21 of 1967. Section 7 of the Hindu marriage Act recites as under:

7A Special Provision regarding, suyamariyathai and Seerthiruththa marriages. (1) this Section shall apply to any marriage between any two Hindu, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons:

(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or as the case may

be, her husband, or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other, or

(c) by the tying of the thali.

(2)(a) Notwithstanding anything contained in Section 7, but subject to the other provisions of this Act, All marriages to which this Section applies solemnised after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967 shall be good and valid in law.

(b) Notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to Sub-section (3), all marriages to which this section applies solemnized at any time before such commencement, shall be deemed to have been, with effect on and from the date of the solemnization of each such marriage, respectively, good and valid in law.

(3) Nothing contained in this Section shall be deemed to-

(a) render valid any marriage referred to in Clause (b) of Sub-section (2), if before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967-

(i) such marriage has been dissolved under any custom or law. or

(ii) the woman who was a party to such marriage, has whether during or after the life or the other party thereto, lawfully married another; or

(b) render invalid a marriage between any two Hindu solemnised at any time before such commencement if such marriage was valid at that time: or

(c) render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnized in accordance with the customary rites and ceremonies of either party thereto;

Provided that routing contained in this Sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.

4) Any child of the parties to a marriage referred to in Clause (b) of Sub-section (2) born of such marriage shall be deemed to be their legitimate child;

Provided that in a case falling under sub clause (i) of Sub-clause (ii) or Clause (a) of Sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said Sub-clause (ii).

It has been held by the learned Metropolitan Magistrate that the Sapthapathi was not performed and therefore, the marriage is not a valid marriage. Careful analysis of the evidence of P.W.3 Kameswara Rao would itself show that Sapthapathi was performed. He had stated that Agnihoma"" was made and the bride and bridegroom came three rounds around the dais indicating that they have taken three rounds around the Agni which itself would indicate that they have taken the necessary seven steps to complete the Sapthapathi. It is not very clear whether P.W.3 knew what "Sapthapathi" was. When they have come around the fire thrice, it cannot be said that the "Sapthapathi" was not performed.

Even accepting P.W.3''s evidence that "Sapthapathi" was not performed, still it cannot be said that the marriage is a void marriage by virtue of the State Amendments introduced by the Tamil Nadu in the Hindu Marriage Act by Act No. 21 of 1967. P.W.3 categorically admitted that the accused tied the thali around the neck of Kasthuri. Kasthuri and the accused exchanged garlands which would be sufficient to satisfy the requirements of a valid Hindu Marriage u/s 7A of the Hindu Marriage Act. I hold that the evidence on record clearly establishes that the accused had taken Kasthuri as the second wife and that the marriage was a valid marriage which would become void only due to operation of Section 17 of the Hindu Marriage Act. In that view of the matter, the order of acquittal passed by the learned Metropolitan Magistrate in C.C. No. 2223 of 1985 is set aside as erroneous. The accused is found guilty of offence u/s 494 I.P.C. The learned Metropolitan Magistrate is directed to proceed with further to examine the accused regarding the quantum of sentence to be imposed and impose punishment, which the learned Metropolitan Magistrate deems fit under the circumstances of the case.