Priya Bala Ghosh Vs. Suresh Chandra
Ghosh  INSC 73 (4 March 1971)
CITATION: 1971 AIR 1153 1971 SCR (3) 961 1971
SCC (1) 864
R 1979 SC 713 (6)
Penal Code (Act 45 of 1860), s. 494-Proof of
second marriage-Admission of second marriage-Relevancy.
The appellant filed a complaint against her
husband the respondent, stating that he took a second wife during the
subsistence of the appellant's marriage and that the respondent was therefore
guilty of an offence 'under s. 494 I.P.C. The trial court convicted the
respondent. In appeal, the Sessions Court found, that in relation to the second
marriage, there was no evidence of the performance of Homo and Saptapadi, which
were essential rites to be performed for solemnisation of a marriage according
to the law prevailing among the parties; and the respondent was acquitted. In
the High Court, in order to prove the second marriage, the appellant sought to
rely upon a statement made by the respondent in answer to an earlier complaint
under s. 494 I.P.C., filed by-the appellant, wherein the respondent had
admitted that he had married a second wife because of the misconduct of the
appellant. The High Court, however, held that the statement could not be relied
upon for proving that the essential ceremonies had been performed and confirmed
the acquittal of the respondent.
In appeal to this Court,
HELD (1) The prosecution has. to prove that
the alleged second marriage, was a valid marriage, duly performed in accordance
with the essential religious rites applicable according to the law and custom
of the parties. [967 E] (2) The statement in the earlier proceedings in
relation to the complaint under s. 494 I.P.C., could not be relied upon because
: (although strictly it was not a confession never the less, if acted upon it
would tend to incriminate the respondent (who was in the position of an
accused) and therefore he was entitled to be given an opportunity of offering
his explanation, if any, in respect of such incriminating statement; (b) such
opportunity was not given to the respondent and it was not put to him when he
was examined under s. 342 Cr.P.C. and (c) such an admission cannot in law be
treated as evidence of the 'second marriage having taken place in a bigamy
case. [969 D-H] (3) In the present case, both the Sessions Judge and the High
Court have found that there was no evidence that Homo and Saptapadi, which are
essential rites for a marriage according to law governing the parties, had been
performed when the respondent is said to have married a second wife, and hence
the respondent was not guilty. [964 C; 970 B-C] Bhaurao Shankar Lokhande v.
State Of Maharashtra,  2 S.C.R. 837 and Kanwal Ram v, Himachal Pradesh
Admn,  1 S.C.R. 539, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 275 of 1968.
Appeal by special leave from the judgment and
order dated January 19, 1968 of the Calcutta High Court in Criminal Appeal No.
393 of 1966.
S. C. Majumdarand R. K. Jain, for the
The respondent did not appear.
The Judgment of the Court was delivered by
Vaidialing, J. In this appeal, by special leave, the appellant challenges the
judgment and order of the, Calcutta High Court dated January 19, 1968 in
Criminal Appeal No. 393 of 1966.
The appellant filed a complaint dated April
11, 1963 against the respondent, her husband, in the Court of the Magistrate,
1st Class, Alipurduar, alleging that he has committed an offence under S. 494
of the Indian Penal Code. Briefly her case was as follows :
The respondent had married the appellant in
or about 1948 according to Hindu rites and both of them had lived as husband
and wife, together. But some time before the date of the complaint the
respondent began to ill treat her, with the result that she had to reside with
her mother and brother. The respondent illegally married one Sandhya Rani as
his second wife on May 3 1, 1962 and they have been living together as husband
and wife. As the second marriage has taken place during the subsistence of the
appellant's marriage with the respondent, the second marriage is invalid in law
and the respondent is guilty of an offence under S.494 of the Indian Penal
The respondent pleaded not guilty of the'
offence alleged against him. He further pleaded that he has never married the
appellant and that the entire prosecution case is false.
The trial Magistrate after considering the
evidence adduced both regarding the marriage between the appellant and the
respondent as well as the alleged second marriage betweenthe respondent and
Sandhya Rani, held that the marriage of the appellant with the respondent was
Notwithstanding the scantiness of the
evidence regarding the second marriage, the Trial Magistrate, however, found
that the respondent had admitted the second marriage in his objections filed to
a claim made by the appellant for maintenance under S. 488 of the Code of Criminal
Procedure. In this view the Magistrate held that there cannot be any doubt that
the respondent has married Sandhya Rani while his first wife, the appellant,
was still alive.
the Magistrate further held that as the
marriage with the appellant was subsisting, the second marriage is void under
s. 17 of the Hindu Marria Act, 1955 (Act 25 of 1955), (hereinafter to be
referred as the Act) and, therefore, the respondent was guilty of the offence
under s. 494 of the Indian. Penal Code. The respondent was sentenced for the
said offence to undergo rigorous imprisonment for one year and also to pay a
fine of Rs. 5001and in default to suffer rigorous imprisonment for a further
period of three months.
A further direction was given that half the
fine, if realised, was to be paid to the complaint, the appellant.
On appeal by the respondent, the learned
Sessions Judge, Jalpaiguri, by his judgment dated April 30 1966 held that the
evidence does not establish that the essential ceremonies to constitute a valid
marriage have been performed either in the case of the marriage claimed to have
taken place between the appellant and therespondent or in respect of the
alleged second marriage with Sandhya Rani.
In this view the learned Sessions Judge set
aside the order of the magistrate convicting the respondent and sentencing him
as mentioned above. The respondent was acquitted of the offence under s. 494
On appeal by the appellant, the Calcutta High
Court, however,, differed from the finding of the, learned Sessions Judge
regarding the invalidity of the marriage between the appellant and the
respondent. On the other hand, the High Court held that the evidence
establishes that a valid marriage, according to Hindu law, by which the parties
were governed, has taken place between the appellant and the respondent. But
regarding the second marriage, the High Court agreed with the finding of the
learned Sessions Judge that the essential ceremonies' to constitute a valid
marriage have not been proved to have taken place. In this view the High Court
confirmed the order of acquittal passed in favour of the respondent and dismissed,
the appellant's appeal.
Mr. S. C. Majumdar, learned counsel for the
appellant, has raised two contentions before us I that the view of the High
Court that the essential ceremonies to constitute a valid marriage have not
been proved to have taken place regarding the second. marriage of the
respondent with Sandhya Rani, is erroneous and contrary to the evidence adduced
in the case and (2) In any event in view of the specific admission made by the
respondent in Ex. 2 about the second marriage and having due regard to the
other surrounding circumstances, it must be held that the respondent is guilty
of the offence, under s. 494 I.P.C. The respondent 964 has not appeared before
us and we have to proceed on the basis of the finding of the learned Sessions Judge,
accepted by the High Court, that the appellant was married to the respondent
and that the marriage was subsisting on the date of the allied second marriage.
Both the contentions of the learned counsel
for the appellant can be dealt with together. It has been pointed out by the
learned Sessions Judge that both sides agreed that according to the law
prevalent amongst the parties Homo and Saptapadi were, essential rites to be
performed to constitute a valid marriage. Both sides also agreed before the Court
that there was no specific evidence as to the performance of Saptapadi and Homo
in the case of the alleged marriage of the respondent with Sandhya Rani.
Therefore, the main question that has to. be considered is, whether the
performance of the above ceremonies and rites have to be established by
evidence specifically before the respondent could be convicted under s. 494
I.P.C. The findings of the High Court are that the Priest, P.W. 6, who claims
to have officiated at the marriage of the respondent and Sandhya Rani has given
evidence to the effect that the marriage was solemnised according to Hindu
rites. He has not said anything more than this. The other evidence adduced has
not been considered to be of any use in this regard. The further finding of the
High Court is that no evidence was adduced that the Homo and Saptapadi were
performed in the case of the marriage between Sandhya Rani and the respondent
and that it has also not been proved that there was any custom prevalent
amongst the parties that those essential ceremonies are not necessary for the
purpose of solemnization of the marriage.
According to Mr. Majunidar, when once the
priest has given evidence to the effect that the marriage between the
respondent and Sandhya Rani has been performed, it follows that all the
essential ceremonies that are necessary to constitute a valid marriage must be
presumed to have been performed. In any event, when there is evidence to show
that the marriage as a fact has taken place, the presumption is that it has taken
place according to law. In this connection Mr. Majumdar referred us to various
English decisions when on the basis of certain evidence regarding the taking
place of marriage between the, parties a presumption has been drawn that the
marriage must have been solemnized according to law. In our opinion, it is
unnecessary to refer to those cases cited by the learned counsel as the
position is concluded against the appellant by the decisions of this Court on
both points. Section 5 of the Act lays down conditions for a Hindu marriage' It
will be seen that one of the conditions is that referred to in clause (i),
namely, that neither of the parties 96 5 has a spouse living at the time of the
marriage., Section 7 dealing with the ceremonies for Hindu marriage is as
"Section 7-Ceremonies for a Hindu
(1) A Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include
the Saptapadi that is, the taking of seven steps by the bridegroom and the
bride jointly before the as red fire), the marriage becomes a complete and
binding when the seventh step is taken." We have pointed out that in the
case before us both sides were agreed that according to the law prevalent
amongst them Homo and saptapadi were essential rites to be performed for
solemnities of the marriage and there is no specific evidence regarding the
performance of these essential rites.
The parties have also not proved that they
are governed by any custom under which these essential ceremonies need not be
Section 1 1 of the Act deals with void
marriages. One of the conditions, if contravened, which makes a marriage
solemnized after the commencement of the Act, null and void is if any party thereto
have a spouse living at the time of the marriage.
Section 17 relating to punishment of bigamy
is as follows "Section 17 Punishment of bigamy Any marriage between two
Hindus solemnized after the commencement of thisAct is void if at the date of
such marriage either party had a husband or Wife living; and the provisions of
sections 494 and 495 of the Indian Penal Code shall apply accordingly."
Again in the case before us there is no controversy that the second marriage is
stated to have taken place after the commencement of the Act during the
subsistence of the first marriage. If the second marriage has taken place, it
will be void under the circumstances and s. 494 of the Indian Penal Code will
be attracted. Section 494 of the Indian Penal Code is as follows "Section
494-Marrying again during lifetime 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 lift.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." In Bhaurao Shankar Lokhande and
another v. Slate of Maharashtra and another,(1) the question arose whether in a
prosecution for bigamy under S. 494 I.P.C. it was necessary to establish that
the second marriage had been duly performed in accordance with the essential
religious rites applicable to the form of marriage gone through. The first
appellant therein had been convicted for an offence under s. 494 I.P.C. for
going through a marriage which was void by reason of its taking place during
the life time of the previous wife. The said appellant contended that it was
'necessary for the prosecution to establish that the alleged second marriage
had been duly performed in accordance with the essential religious rites. The
State, on the other hand, contended that for the commission of the offence
under s. 494 I.P.C. it was not necessary that the second marriage should be a
valid one and a person going through any form of marriage during the life time
of the first wife would be guilty of the offence. This Court rejected the
contention of the State and observed as follows :
"Prima facie the expression
marries' 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 time 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." Again in interpreting the word
"solemnize" in S. 17 of the Act, it was stated :
"The word 'solemnize' means in
connection with a marriage, 'to celebrate the marriage with proper ceremonies
and in due form, according to the Shorter Oxford Dictionary. 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 S. 17 of the Act, that the marriage to which s.
494 I.P.C. applies on account of the provisions of the Act, should have been
celebrated with Droper ceremonies and in due form. Merely going through certain
ceremonies with the intention that the parties be taken to be married. will not
make them ceremonies precribed by law or approved by any established
custom." (1)  2 S.C.R. 837.
96 7 From the above quotations it is clear
that if the alleged second marriage is not a valid one according to law
applicable to the parties, it will not be void by reason of its taking place
during the life of the husband or the wife of the person marrying so as to
attract s. 494 I.P.C. Again in order to hold that the second marriage has been
solemnized so as to attract s. 17 of the Act, it is essential that the second
marriage should have been celebrated with proper ceremonies and-in due form.
In the said decision this Court further
considered the question whether it has been established that with respect to
the alleged second marriage the essential ceremonies for valid marriage have
been performed. After referring to the passage in Mulla's Hindu Law, 12th Edn.
at page 615 dealing with the essential ceremonies which have to be performed
for a valid marriage, this Court, on the evidence held that the prosecution had
neither established that the essential ceremonies had been performed nor that
the performance of the essential sermon is had been abrogated by the custom goveming
the community to which the parties belonged In this view it was held that the
prosecution in that case had failed to establish that the alleged second
marriage had been performed in accordance with the requirement of s. 7 of the
Act. The effect of the decision, in our opinion, is that the prosecution has to
prove tbat the alleged second marriage had been duly performed in accordance
with the essential religious rites applicable to the form of marriage gone
through by the parties and that the said marriage must be a valid one according
to law applicable to the parties.
In Kanwwl Ram and others v. The Himachal
Pradesh Admn. (1) ibis Court reiterated the principles, laid down is the
earlier decision referred to above that in aprosecution for bigamy the second
marriage has to be proved as a fact and it must also be Proved that the
necessary ceremonies had been performed. Another Proposition laid down by this
decision, which answers the second contention of the learned counsel for the
appellant, is that admission of marriage by an accused is no evidence of
marriage for the purrpose of proving, an offence of bieamv or adulterv. On the
evidence it was held in the said decision that the witnesses have not Proved
that the essential ceremonies had been performed.
It was contended that an admission made by
the accused regarding the second mamaee. is conclusive of the fact of a second
marriage having taken place and that without any other evidence a conviction
could be based on such admission. This Court rejected the said contention
stating "..................it is clear that in law such admission is not
evidence of the fact of the second marriage having 968 taken place. In a bigamy
case, the second marriage as a fact, that is to say, the ceremonies constituting
it must be proved :
Empress v. Pitambur Singh(1), Empress v.
Kallu ( 2) , Archbold Criminal Pleading Evidence and Practice (35th ed.) Art.
3796. In Kallu's case and in Morries v. Miller(3) it has been held that
admission of marriage by the accused is not evidence of it for the purpose of
proving marriage in an adultery or bigamy case........
The decision in R. V. Robinson(4) was relied
on in the above decision on behalf of the prosecution in support of the
proposition that it was not necessary to prove that all the ceremonies required
for the particular form of marriage had been observed. After a consideration of
the facts in the English decision, quoted above, this Court has expressed the
view that the said decision does not support the said proposition enunciated on
behalf of the prosecution. We are only adverting to this fact, because the
English decision was again referred lo us by Mr. Majumdar; and it is not
necessary for us to refer to the same over again excepting to say that the said
decision does not advance the case of the appellant.
As pointed out earlier, this Court in Kanwal
Ram's case has laid down that an admission is not evidence of the fact that the
second marriage has taken place after the ceremonies constituting the same have
been gone through. As the High Court has dealt with the question regarding the
admissibility of admission contained in Ex. 2, we will briefly refer to the
nature of the admission that was sought to be relied on against the respondent
by the complainant.
But we make it clear that the discussion
regarding this aspect is only to deal with the contention advanced on behalf of
the appellant and to reject the same. The trial Magistrate whosedecision was in
favour of the appellant has himself expressed the view that the evidence on the
side of the appellant regarding the alleged second marriage is very scanty. But
that, court held that the respondent has admitted the second marriage in Ex. 4,
which was an objection filed by the respondent in an application filed by the
appellant for maintenance under S. 488 Cr. P.C. We have gone through the said
objection petition. The respondent has alleged various acts of misconduct
against the appellant and be has merely stated that he was compelled to marry
again. But no other particulars have been given in the said objection mention.
We are of the view that no admission of the second marriage by the respondent
with Sandhva Rani can be culled out from Ex. 4. In fact the trial court has
based its finding 1.  I.L.R,. 5 Cal.566.
3. 4 Burr. 2057, 98 E.R. 73, 2. 
I.L.R.5 All. 233.
4.  1 All. E.R. 301, 969 regarding the
second marriage almost exclusively on what it considered to be an admission
contained in Ex., 4. As there, is no such admission, the finding of the
magistrate was clearly erroneous.
Before the High Court, however, we find that
the appellant did not place any reliance on Ex. 4. On the other hand she relied
on an admission stated to have been contained in Ex. 2. The appellant filed a
complaint under s. 494 I.P.C.
against the respondent on an earlier occasion
on the ground that the latter had contracted a second marriage with Sandhya
Rani. That complaint was, however, withdrawn as the particular court had no
jurisdiction. In that preceding the appellant wanted the said Sandhya Rani to
be summoned as a witness. To that application, the respondent filed an
objection Ex. 2 'wherein no doubt, he has admitted that Sandhya Rani is his
wife and that he married her because of the misconduct of the appellant. The
High Court considered the question whether this Statement of the respondent in
Ex. 2 that he has married Sandhya Rani can be treated as an admission of the
fact of the second carriage. The High Court was of the view that the statement
contained in Ex. 2 would really be a confession statement and declined to act
on the same for two reasons : firstly, that the statement, in Ex. 2 had not been
put to the respondent when he was examined under s. 342 Cr. P.C. so as to give
him an opportunity to explain the statements contained therein; secondly, that
even if the statement contained in Ex. 2 can be taken into account by
themselves they will not be proof of the fact that all the essential ceremonies
necessary for a marriage have been performed. In our view the reasons given by
the High Court are substantially correct. Though strictly the statements
contained in Ex. 2 may not be a confession, nevertheless, these statements, if
acted upon, tend to incriminate he respondent. The respondent being in the position
of an accused was entitled to be given an opportunity of offering his explanation
if any, in respect of the incriminating statement contained in Ex. 2. Such an
opportunity has not been admittedly given to the respondent.
His statement in Ex. 2 has not been put to
his when be was examined under s. 342 Cr. P.C:
Further as pointed out by this Court in Kawal
Ram's case, the admission in Ex. 2 cannot in law be treated as evidence of the
second marriage having taken place in an adultery or begamy case: and that in
such cases it must be proved by the prosecution that the second marriage as a
fact has taken place after the performance of the essential ceremonies.
Mr. Majumdar relied on the decision of this
Court in Bharat Singh and another vs. Bhagirathi(1) to the effect that the
admissions 1.  1 S.C.R. 606.
970 made by a party are substantive evidence
by themselves in view of ss. 17 and 21 of the Indian Evidence Act, and that if
those admissions have been duly proved they can be relied on irrespective of
the fact whether the party making them appear in the witness box or not or
irrespective of the fact whether such a party had or had not been confronted
with those admissions. We do not think that the said decision in any way
supports the appellant with regard to prosecution for bigamy under s. 494
To conclude, we have already referred to the
fact that both the learned Sessions Judge and the High Court have categorically
found that the Homo and Saptapadi are the essential rites-for a marriage
according to the law governing the parties and that there is no evidence that
these two essential ceremonies have been performed when the respondent is
stated to have married Sandhya Rani. No reliance can be placed on the
admissions stated to be contained in Ex. 2. For all the above reasons the
contentions of Mr. Majumdar have to be rejected.
The appeal fails and is dismissed.
V.P.S. Appalled dismissed.