A S. NAGALINGAM

v.

SIVAGAMI

AUGUST 31, 2001

B

[ D.P. MOHAPATRA AND K.G. BALAKRISHNAN, JJ.]

Penal Code, 1860 :

S.494-Bigamy-!ngredients explained-Husband contracting a second

C marriage during the subsistence of the first marriage-Held, in the/acts of the

case, the husband committed offence of bigamy.

Hindu Marriage

Act, 1956 : S. 7 and S. 7-A (as inserted by Tamil Nadu Amendment)-Marriage-

D 'Saptapadi'-Special provision regarding suyamariyathai and seerthiruththa

marriage in State a/Tamil Nadu-During subsistence of firs/ marriage second

marriage performed by husband

in the presence of relatives and friends­

Complainan/ u/s. 494

!PC by the first wife-Magistrate acquitting the husband

holding that second marriage

was not a valid marriage as

Saptapadi was not

E peiformed-Held, any of the ceremonies enumerated ins. 7-A would be sufficient

to complete a valid marriage--Since the parties were residents of Tamil Nadu

and marriage peiformed in the said State in accordance with provisions of

s.7-A, second marriage was a valid marriage and h11Sband committed the

offence

of bigamy.

F Respondent No.I

filed a complaint under section 494 IPC against her

husband (appellant-accused no.I) and 6 others alleging that during the

subsistence

of their marriage the appellant entered into a marriage with

another woman, namely, accused

no. 2, on 18.6.1984. The parties, namely the

complainant-respondent no. I, appellant-accused no. I and accused no.2, all

G were residents of

State of Tamil Nadu. The Trial Court acquitted the accused

holding that since "Saptapadi" had not been performed, the second marriage

was not a valid marriage and

no offence was committed by the accused.

On

appeal, the High Court convicted the husband accused. no. I, under section

494 IPC but acquitted the other accused. Aggrieved, the husband filed the

present appeal.

H

454

S. NAGALINGAM v. SJVAGAMI 455

Dismissing the appeal, the Court

HELD : 1. There was a valid marriage on 18.6.1984 between the

appellant (accused

no. 1) and accused no. 2. Therefore, it was proved that

the appellant had committed the offence of bigamy as it was done during the

subsistence

of his earlier marriage held on 6.9.1970. [462-C-D]

2.1. The essential ingredients of the offence under Section

494 IPC are:

(i) the accused must have contracted the first marriage; (ii) whilst the first

marriage was subsisting, the

accused must have contracted a second marriage;

and (iii) both the marriages must be valid in the sense that necessary

ceremonies governing the parties must have been performed. [457-F]

2.2. In view ofs.7 of the Hindu Marriage Act, 1956, "Saptapadi" would

A

B

c

be an essential ceremony for a valid marriage only in cases where it was

admitted by the parties that as per the form of marriage applicable to them

that was an essential ceremony.

By an amendment made by the

State of Tamil

Nadu, Section 7-A has been inserted in the Act and it applies to any marriage D

between two Hindus solemnized in the presence of relatives, friends or other

persons. The main thrust of this provision

is that the presence of a priest is

not necessary for the performance of a valid marriage. Parties can enter into

a marriage

in the presence of relatives or friends or other persons and each

party to the marriage should declare

in the language understood by the parties

that each takes other to be his wife or, as the case may be, her husband and E

the marriage would be completed by a simple ceremony requiring the parties

to the marriage to garland each other or put a ring upon any finger

of the

other or tie a thali. Any of these ceremonies would be sufficient to complete

a valid marriage. (462-B;

461-A-B-CI

Kanwal Ram and Ors. v. H.P. Administration, AIR (1966) SC 614, relied F

on.

Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, (1971) l SCC 864;

lingari Obulamma v. L. Venkata Reddy and Ors., [1979] 3 SCC 80; Santi Deb

Benna

v. Kanchan Prava Devi, (1991

I Supp. 2 SCC 616 and laxmi Devi v. Satya

Narayan

and Ors., [1994) 5 sec 545, referred to. G

2.3. In the instant case, the parties to the second marriage, namely, the

appellant and his alleged second

wife, are residents of the

State of Tamil Nadu

and their marriage was performed at Thiruthani Temple within the State of

Tamil Nadu. The evidence as given by PW-3, the priest who performed the

marriage, clearly shows

that there was a valid marriage in accordance with H

456 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R

A the provisions of Section 7-A of the Hindu Marriage Act. PW-3 also deposed

that he {>erformed the marriage in accordance with the customs app!icable

to the parties; and the bride and the bridegroom exchanged garlands.

Under such circumstances the provisions of Section 7-A are applicable

and there was a valid marriage between the appellant and his second wife.

B Moreover, neither complainant nor the appellant had any case that for a valid

marriage among the members

of the community to which they belonged, this

ceremony

of

"Saptapadi" was an essential one to make it a valid marriage.

1459-G; 461-F-H; 462-A)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

C 882 of 2001.

From the Judgment and Order dated 22.12.2000 of the Madras High

Court

in

Cr!. A. No. 486 of 1999.

R. Sundravardan and Vipin Nair for Mis. Temple Law Firm for the

D Appellant.

E

F

In-person for the Respondent.

The Judgment

of the Court was delivered by

K.G. BALAKRISHNAN, J. Leave granted.

This appeal

is directed against the judgment of the learned Single Judge

of the High

Court of Madras in Criminal Appeal No. 486 of 1999 reversing

the order

of acquittal passed by the Metropolitan Magistrate, Madras. The

learned

Single Judge found the appellant guilty of the offence under Section

494 IPC.

The appellant, S. Nagalingam married respondent-complainant Sivagami

on 6.9.1970. Three children were born from that wedlock. The respondent

alleged that the appellant started ill-treating her and

on many occasions she

was physically tortured.

As a result of ill-treatment and severe torture inflicted

by the appellant as well as his mother, she left her marital home and started

G staying with her parents. While so, the respondent came to know that the

appellant had entered into a marriage with another woman

on

18.6. 1984, by

name Kasturi, and that the marriage was performed in a Marriage Hall at

Thiruthani. The respondent then filed a criminal complaint before the

Metropolitan Magistrate against the appellant and six others. All the accused

H were acquitted by the trial court. Aggrieved thereby, the respondent filed

S. NAGALINGAM v. SIVAGAMI [K.G. BALAKRISHNAN, J.] 457

criminal appeal No. 67 of 1992 before the High Court of Madras. The learned A

Single Judge, by his judgment dated 1.11.1996 upheld the acquittal of accused

2-7, but as regards the acquittal

of the appellant, the matter was remitted to

the trial court permitting the complainant to adduce evidence regarding the

manner

in which the marriage was solemnized.

Upon remand the Priest [PW-

3], who is alleged to have performed the marriage of the appellant with the

second accused, Kasturi, on 18.6.1984, was further examined and the appellant

B

was allowed further cross-examination. The learned Metropolitan Magistrate

by his judgment dated 4.3.1999 acquitted the accused. Aggrieved by the state

judgment, the respondent preferred a criminal appeal before the High Court

of Madras. By the impugned judgment, the learned Single Judge held that the

appellant had committed the offence punishable under Section 494

!PC. This C

is challenged before us.

We heard Mr. R. Sundravardan, learned senior counsel for the appellant.

The respondent Sivagami appeared in person and she filed some documents

in court. Though she was offered the assistance of a counsel, she declined to

avai! herself

of that opportunity. D

The short question that arises for our consideration is whether the second

marriage entered into by appellant with the second accused. Kasturi, on

18.6.1984 was a valid marriage under Hindu Law so

as to constitute an

offence under Section 494

!PC.

The essential ingredients of the offence under Section 494 !PC are (I)

the accused must have contracted the first marriage; (ii) whilst the first marriage

was subsisting, the accused must have contracted a second marriage; and (iii)

both the marriages must be valid

in the sense that necessary ceremonies

governing the parties must have been performed.

Admittedly, the marriage

of the appellant with the respondent, entered

E

F

into by them on

6.9.1970, was subsisting at the time of the alleged second

marriage. The Metropolitan Magistrate held that

an important ceremony,

namely,

"Saptapadi" had not been performed and therefore, the second

marriage was not a valid marriage and no offence was committed by the

G

appellant. The learned Single Judge reversing this decision in appeal held

that the parties are governed by Section 7-A

of the Hindu Marriage Act as

the parties are Hindus residing within the State

of Tamil Nadu. It was held

that there was a valid second marriage and the appellant was guilty

of the

offence

of bigamy

..

H

A

B

c

D

E

458

SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

In the complaint filed by the respondent, it was alleged that the appellant

had contracted the second marriage and this marriage was solemnised in

accordance with the Hindu rites on 18.6.1984 at RCC Mandapam, Tiruttani

Devasthanam.

To support this contention,

PWs 2 & 3 were examined. PW-

3 gave detailed evidence regarding the manner in which the marriage on

18.6.1984 was performed.

Learned counsel

for the appellant contended that as per the evidence of

PW-3, it is clear that "Saptapadi", an important ritual which forms part of the

marriage ceremony,

was not performed and therefore, there was no valid

marriage

in accordance with Hindu rites.

It is undoubtedly true that the second marriage should be proved to be

a valid marriage according to the personal law of the parties, though such

second marriage is void under

Section 17 of the Hindu Marriage Act having

been performed when the earlier marriage is subsisting. The validity of the

second marriage is to be proved by the prosecution by satisfactory evidence.

In Kanwal Ram and Ors. v. H.P. Administration AIR, (1966) SC 614;

this Court held that in a bigamy case, the second marriage is to be proved and

the essential ceremony required for a valid marriage should have been

performed. It was held that mere admission on the part of the accused may

not be sufficient.

The question as to whether "Saptapadi", is an essential ritual to be

performed, came up for consideration of this Court in some cases. One of the

earliest decisions of this Court is [ 1971] I SCC 864 Smt. Priya Bala Ghosh

v. Suresh Chandra Ghosh wherein it was held that the second marriage

should

be a valid one according to the law applicable to the parties. In that

F case, there was no evidence regarding the performance of the essential

ceremonies,

namely.

"Datta Homa" and "Saptapadi". In paragraph 25 of the

judgment, it was held that the learned Sessions Judge and the High Court

have categorically found that "Homa" and "Saptapadi" are the essential rites

for a marriage according to the law governing the parties and there is no

G evidence that these two essential ceremonies have been performed when the

respondent is stated to have married Sandhya Rani. It is pertinent to note that

in paragraph 9 of the judgment it is stated that both sides agreed that according

to the law prevalent amongst the parties."Homa" and "Saptapadi" were

essential rites to be performed to constitute a valid marriage. Before this

Court also, the parties on either side agreed that according to the law prevalent

H among them, "Homa" and "Saptapaid" were essential rites to be performed

I

S. NAGALINGAM v. SIVAGAMI [K.G. BALAKRISHNAN, J.) 459

for solemnization of the marriage and there was no specific evidence regarding A

the performance of these two essential caremonies.

[1979] 3 SCC 80 Lingari Obulamma v. l. Venkata Reddy and Ors.,

was a case where the High Court held that two essential ceremonies of a

valid marriage, namely "datta homa" and "sapathapadi" [taking seven steps

around the sacred fire] were not performed and, therefore, the marriage was B

void in the eye of law. This finding was upheld by this Court. The appellant

therein contended that

among the

"Reddy community in Andhra Pradesh,

there was no such custom of performing "datta homa" and "saptapadi", but

· the High Court held that under the Hindu Law these two ceremonies were

essential to constitute a valid marriage and rejected the plea of the appellant C

on the ground that there was no evidence to prove that any of these two

ceremonies had been performed. The finding of the High Court was upheld

by this Court that there was no evidence to prove a second valid marriage.

In [1991] Supp 2 SCC 616; Santi Deb Berma v. Kanchan Prava Devi

aiso, the appellant was acquitted by this Court as there was no proof of a D

vaiid marriage as the ceremonial "Saptapadi" was not performed. This Court

noticed in this case also that the High Court proceeded on the footing that

according to the parties, perfonnance of "Saptapadi" is one of the essential

ceremonies

to constitute a valid marriage.

Another decision

on this point is (1994] 5 sec 545; laxmi Devi v. E

Satya Narayan and Ors .. wherein, this Court, relying on an earlier decision

in [1971] l SCC 864 (supra), held that there was no proof that "Saptapadi"

was performed and therefore, there was nQ valid second marriage and that no

offence of bigamy was committed.

In the aforesaid decisions rendered by this Court, it has been held that

if

the parties to the second marriage

perform traditional Hindu form of

marriage. "Saptapadi" and "Datta Homa" are essential ceremonies and without

there being these two ceremonies, there would not be a valid marriage.

F

In the instant case, the parties to the second marriage, namely the G

appellant. Nagalingam, and his alleged second wife, Kasturi, are residents of

the State of Tamil Nadu and their marriage was performed at Thiruthani

Temple within the State of Tamil Nadu. In the Hindu Marriage Act, 1955,

there is a State Amendment by the State of Tamil Nadu, which has been

inserted as Section 7-A. The relevant portion thereof is as follows:

H

460 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A "7-A. Special provision regarding suyamariyathai and seerthiruththa

marriages-(!)

This section shall apply to any marriage between any

two Hindus, whether called suyamariyathai marriage or seerthiruththa

marriage or by any other name, solemnized in the presence of relatives

friends or other persons-

B (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

c

(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 solemnized after the commencement of the Hindu Marriage

D (Madras Amendment) Act, 1967, shall be good and valid in law.

E

F

G

H

(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 imtnediately before such commencement 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 solemhization of each such marriage,

respectively,

good and valid in law.

(3) .............. .

(a) ·················

(i) ................ .

(ii) ............... .

(b) ·················

(c) ................. .

(4) ................... "

I

......

S. NAGAL!NGAM v. SIVAGAMI [K.G. BALAKRISHNAN, J.] 461

Section 7-A applies to any marriage between two Hindus solemnized A

in the presence of relatives, friends or other persons. the main thrust of this

provision

is that the presence of a priest is not necessary for the performance

of a valid marriage. Parties can enter into a marriage in the presence of

relatives or friends or other persons and each party to the marriage should

declare

in the language understood by the parties that each takes other to be

his wife or, as the case may be, her husband, and the marriage would

be

completed by a simple ceremony requiring the parties to the marriage to

garland each other or put a ring upon any finger

of the other or tie a thali.

Any

of these ceremonies, namely garlanding each other or putting a ring

upon any finger

of the other or tying a thali would be sufficient to complete

B.

a valid marriage. Sub-section 2(a) .of

Section. 7-A specifically says that C

notwithstanding anything contained in Section 7, all marriages to which this

provision applies and solemnized after the commencement

of the Hindu

Marriage (Madras Amendment) Act, 1987 shall be good and valid

in law.

Sub-section 2(b) further says that 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 D

of the Hindu Marriage (Madras Amendment) Act I 967, or in any other law

in force immediately before such commencement or in any judgment, decree

or order

of any court, all marriages to which this section applies solemnized

at any time before such commencement, shall be deemed to have been valid.

The only inhibition provided

is that this marriage shall be subject to

Sub-E

Section (3) of Section 7-A. We need not elaborately consider the scope of

Section 7-A(3) as that is not relevant for our purpose.

The evidence

in this case as given by

PW-3 clearly shows that there

was a valid marriage

in accordance with the provisions of

Section 7-A of the

Hindu Marriage Act. PW-3 deposed that the bridegroom brought the F

"Thirumangalam" and tied it around the neck of the bride and thereafter the

bride and the bridegroom exchanged garlands three times and the father

of

the bride stated that he was giving his daughter to

"Kanniyathan" on behalf

of and in the witness of"Agnidevi" and the father of the bridegroom received

and accepted the "Kanniyathan". PW-3 also deposed that he performed the G

marriage in accordance with the customs applicable to the parties.

Under such circumstances, the provisions of Section 7-A, namely, the

State Amendment inserted in the Statute are applicable and there was a valid

marriage between the appellant and Kasturi. Moreover, neither complainant

nor the appellant had any case that for a valid marriage among the members

H

462

SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A of the community to which they belong, this ceremony of "Saptapadi" was

an essential one to make it a valid marriage. Section 7 of the Hindu Marriage

Act says that a Hindu marriage may be solemnized in accordance with the

customary rites and ceremonies of either party thereto and where such rites

and ceremonies include the Saptapadi, i.e. the taking of seven steps by the

B bridegroom and the bride jointly before the sacred fire the marriage becomes

complete and binding when the seventh step is taken.

"Saptapadi" was held to be an essential ceremony for a valid marriage

only in cases it was admitted by the parties that as per the form of marriage

applicable to them that was an essential ceremony. The appellant in the

C instant case, however, had no such case that "Saptapadi" was an essential

ceremony for a valid marriage as per the personai law applicable whereas the

provisions contained in Section 7-A are applicable to the parties. In any view

of the matter, there was a valid marriage on 18.6.1984 between the appellant

and the second accused, Kasturi. Therefore, it was proved that the appellant

had committed the offence of bigamy as it was done during the subsistence

D of his earlier marriage held on 6.9.1970.

The learned Single Judge was right in holding that the appellant

committed the offence of bigamy and the matter was correctly remanded to

the trial court for awarding appropriate sentence. We see no merit in this

E appeal and the same is dismissed accordingly.

R.P. Appeal dismissed.