Gopal Lal Vs. State of Rajasthan
[1979] INSC 23 (30 January 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
KOSHAL, A.D.
CITATION: 1979 AIR 713 1979 SCR (2)1171 1979
SCC (2) 170
ACT:
Bigamy, offence of under section 494
I.P.C.-Admission and legal evidence of actual marriage by custom of nata
marriage attracts the provisions of section 494 I.P.C.
Nata marriage by customs and therefore void
under section 17 of the Hindu Marriage Act, 1955-Whether voidness of a marriage
under section 17 of the H.M.A., 1955 disattracts the applicability of the
provisions of section 494 I.P.C.
HEADNOTE:
After having fallen out and parted company
with his wife Kanchan in the year 1963, the appellant, belonging to Telli
community contracted a second marriage prevalent amongst his community with
Gopi on 20th March 1969. A complaint filed by his first wife ended in his
conviction under section 494 I.P.C. and sentence of two years R.I. and a fine
of Rs. 2,000/-, the conviction and sentence having been upheld by the Rajasthan
High Court.
Dismissing the appeal by special leave, the
Court,
HELD: 1. The second marriage was a valid
marriage according to the custom of the nata marriage prevalent in the Telli
community which requires the following two essential ceremonies:- (a) that the
husband should take a pitcher full of water from the head of the prospective
wife, and (b) that the wife should wear chura by the husband.
The prosecution through PWs. 2, 3, 4 and 5
having proved that these ceremonies have been duly performed, that there was
such a custom which requires the said ceremonies having been admitted by the
defence witnesses 3 and 5 and the validity of the first marriage not having
been disputed, Section 494 I.P.C. applies in terms and the appellant must be
held to have committed the offence of Bigamy as contemplated by section 494
I.P.C. [1176A-E]
2. The combined effect of section 17 of the
Hindu Marriage Act and section 494 I.P.C. is that when a person contracts a
second marriage after the coming into force of the said Act while the first
marriage is subsisting, such a person commits the offence of bigamy. [1174 E]
Section 17 of the Hindu Marriage Act, 1955 makes it absolutely clear that the
provision has to be read in harmony and conjunction with the provisions of
section 494 I.P.C., the essential ingredients of which are: (i) that the
accused spouse must have contracted the first marriage (ii) that while the
first marriage was subsisting the spouse concerned must have contracted a
second marriage, and (iii) that both the marriages must be valid in the sense
that the necessary 1172 ceremonies required by the personal law governing the
parties had been duly performed and (iv) the second marriage must have become
void by virtue of the fact that it had taken place in the life time of one of
the spouses. [1173F- H]
3. Where a spouse contracts a second marriage
while the first marriage is still subsisting the spouse would be guilty of
bigamy under section 494, I.P.C. 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. The voidness of the marriage under section
17 of the Hindu Marriage Act is in fact one of the essential ingredients of
section 494 because the second marriage will became void only because of the
provisions of section 17 of the Hindu Marriage Act. Therefore, the contention
that the second marriage being void section 494 I.P.C. will have no application
is not correct. [1175F-G] Bhaurao Shankar Lokhande and Anr. v. State of
Maharashtra and Ors., [1965]2 S.C.R. 837; Kanwal Ram and Ors. v. The Himachal
Pradesh Administration, [1966]1 S.C.R.
539 and Priya Bala Ghosh v. Suresh Chandra
Ghosh; [1973]3 S.C.R. 961 applied.
[Bigamy being a serious offence for which the
maximum punishment is seven years, the Court while maintaining the conviction
reduced the sentence to one year.]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 255 of 1973.
Appeal by Special Leave from the Judgment and
Order dated 16-7-73 of the Rajasthan High Court in S.B. Crl. Revn. No. 309/73.
A. N. Mulla and B. P. Singh for the
Appellant.
Sobhag Mal Jain and S. K. Jain for the
Respsondent.
The Judgment of the Court was delivered by
FAZAL ALI, J.-This appeal by special leave is directed against a judgment of
the Rajasthan High Court by which the conviction of the appellant under Section
494 I.P.C. and sentence of two years rigorous imprisonment and fine of Rs.
2,000/- have been upheld. The facts of this
case have been detailed in the judgments of the courts below and it is not
necessary to repeat them. Suffice it to say that the accused Gopal Lal married
the complainant Kanchan sometime in the year, 1963 and a child was born out of
this wedlock. Soon thereafter the parties appeared to have fallen out and
parted company. While the first marriage was subsisting Gopal Lal contracted a
second marriage which according to the custom prevalent amongst Tellis is a
valid marriage commonly known as nata marriage. This marriage was contracted on
20th of March, 1969. The complainant Kanchan, the first wife having come to
know about this marriage filed a complaint on the 22nd March, 1969; on the
basis of 1173 which appellant was prosecuted and ultimately convicted as
mentioned above.
Mr. A. N. Mulla, learned counsel for the
appellant, had submitted two points before us. In the first place it was
contended that in view of the provisions of Section 17 of the Hindu Marriage
Act, the second marriage being a void marriage, the provisions of Section 494
I.P.C. are not attracted at all. We have given our anxious consideration to
this argument but we are of the opinion that the argument is wholly untenable.
Section 494 runs thus:
"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-This 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".
The essential ingredients of this offence
are:
(1) that the accused spouse must have
contracted the first marriage.
(2) that while the first marriage was
subsisting the spouse concerned must have contracted a second marriage and (3)
that both the marriages must be valid in the sense that the necessary
ceremonies required by the personal law governing the parties had been duly
performed.
It may also be noticed that Section 494
I.P.C. would come into play only if the second marriage becomes void by virtue
of the fact 1174 that it had taken place in the life time of one of the
spouses. Thus, it is not possible to accede to the contention of Mr. Mulla that
merely because the second marriage was void under Section 17 of the Hindu
Marriage Act hence Section 494 I.P.C. would not be attracted. Section 17 of the
Hindu Marriage Act runs thus:
"Any marriage between two Hindus
solemnized after the commencement of this Act 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".
What Section 17 contemplates is that the
second marriage must be according to the ceremonies required by law. If the
marriage is void its voidness would only lead to civil consequences arising
from such marriage. Section 17 makes it absolutely clear that the provision has
to be read in harmony and conjunction with the provisions of Section 494 of the
Penal Code which has been extracted above.
Section 17 clearly provides that provisions
of Sections 494 and 495 of the Penal Code shall apply accordingly. In other
words though the marriage may be void under Section 17, by reason of the fact
that it was contracted while the first marriage was subsisting the case
squarely falls within the four corners of Section 494 and by contracting the
second marriage the accused incurs the penalty imposed by the said statute.
Thus the combined effect of Section 17 of Hindu Marriage Act and Section 494
I.P.C. is that when a person contracts a second marriage after the coming into
force of the said Act, while the first marriage is subsisting he commits the
offence of bigamy. (Emphasis ours). This matter no longer res integra as it
concluded by a decision of this Court in Bhaurao Shankar Lokhande and Anr. v.
State of Maharashtra & Anr.(1) This Court while considering the question of
bigamy qua the provisions of Section 17 observed as follows:
"Section 17 provides that any marriage
between two Hindus solemnized after the commencement of the Act is void if at
the date of such marriage either party had a husband or wife living, and that
the provisions of ss.
494 and 495 I.P.C. shall apply accordingly.
The marriage between two Hindus is void in view of s. 17 if two conditions are
satisfied: (i) the marriage is solemnized after the commencement of the Act;
1175 (ii) at the date of such marriage,
either party had a spouse living. If the marriage which took place between the
appellant and Kamlabai in February 1962 cannot be said to be 'solemnized', that
marriage will not be void by virtue of s. 17 of the Act and s. 494 I.P.C. will
not apply to such parties to the marriage as had a spouse living".
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 in
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 proper ceremonies and in due form".
It was thus pointed out by this Court that
Section 17 of the Hindu Marriage Act requires that the marriage must be
properly solemnized in the sense that the necessary ceremonies required by law
or by custom must be duly performed. Once these ceremonies are proved to have
been performed the marriage become properly solemnized and if contracted while
the first marriage is still subsisting the provisions of Section 494 will apply
automatically. In a decision of this Court in Kanwal Ram & Ors. v. The
Himachal Pradesh Administration the earlier case was noticed by the Court and
relied upon. The matter has also been fully discussed in Priya Bala Ghosh v.
Suresh Chandra Ghosh. In view of the authorities of this Court, therefore, the
following position emerges: where a spouse contracts a second marriage while
the first marriage is still subsisting the spouse would be guilty of bigamy
under Section 494 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. The voidness of the marriage under Section 17 of the Hindu
Marriage Act is in fact one of the essential ingredients of Section 494 because
the second marriage will become void only because of the provisions of Section
17 of the Hindu Marriage Act. In these circumstances, therefore, we are unable
to accept the contention of Mr. Mulla that the second marriage being void
Section 494 will have no application. It was next contended by Mr. Mulla that
there is no legal evidence to show that the second marriage which is said to
1176 be a nata marriage was actually performed. We are afraid, we are unable to
go into this question because three courts have concurrently found as a fact
that the parties were governed by custom of nata marriage and the two essential
ceremonies of this marriage are:
(1) that the husband should take a pitcher
full of water from the head of the prospective wife;
(2) that the wife should wear chura by the
husband.
There is evidence of P.Ws. 2, 3, 4 and 5 who
have proved fact that these ceremonies had been duly performed in their
presence. That there was such a custom which requires these ceremonies was
admitted by D.Ws. 3 and 5 who were examined by the appellant. The evidence led
by the prosecution has been accepted by the High Court and the courts below and
after perusing the evidence we are not in a position to hold that the finding
of facts arrived by the courts below are wrong in law or perverse. From the
evidence led by the prosecution, therefore, it has been clearly established
that the second marriage which was performed by the appellant Gopal Lal with
Gopi was a valid marriage according to the custom of the nata marriage
prevalent in the Telli community to which the appellant belonged. This being so
and the validity of the first marriage not having been disputed, Section 494
I.P.C. applies in terms and the appellant must be held to have committed the
offence of bigamy as contemplated by Section 494 I.P.C. Lastly, Mr. Mulla
pressed this appeal on the question of sentence.
Bigamy is a serious offence and the maximum
punishment under Section 494 is seven years. Therefore, where the offence of
bigamy is proved the Court cannot take a very lenient view.
In the instant case the appellant was
sentenced to two years and a fine of Rs. 2,000/-. It appears that the appellant
has already paid a fine of Rs. 2,000/-. In these circumstances, therefore, we
feel that the ends of justice will be met by reducing the sentence of
imprisonment from two years to one year but maintaining the sentence of fine.
With this modification the appeal is dismissed. The appellant will now
surrender and serve out the remaining portion of the sentence.
S.R. Appeal dismissed.
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