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CASE NO.:

Appeal (crl.) 314 of 1981

PETITIONER:

LAXMI DEVI

RESPONDENT:

SATYA NARAVAN AND ORS.

DATE OF JUDGMENT: 09/08/1994

BENCH:

P.B. SAWANT & S. MOHAN

JUDGMENT:

JUDGMENT

1994 SUPPL. (2) SCR 490

The Judgment of the Court was delivered by

MOHAN, J. The first respondent was charged for an offence under Section 494

I.P.C., respondent No. 7 under Section 494 read with Section 109 of I.P.C.

and respondent Nos. 2 to 6 and 8-9 under Section 494 read with Section 120B

of I.P.C. the trial took place before Judicial Magistrate No. 1, Bikaner.

It was held that the prosecution had not proved through proper witnesses

'Sapatpadi' to establish the factum of second marriage of accused

(respondent No. 1). The High Court found that it was not a fit Case for

grant of leave to appeal. Thus, the present criminal appeal against the

impugned order dt. 18.7.1978 was passed by High Court.

The only point urged before us is that though 'Sapatpadi' a fact has not

been proved, there is enough evidence to establish the factum of second

marriage. There are eye witnesses who have seen the marriage. That is

enough to bring out the charge. The principle relating to 'Sapatpadi'

taking of seven steps before the sacred fire cannot be insisted upon if as

of fact marriage is established. Therefore the courts below are wrong.

The learned counsel for the respondents would urge that the courts below

have correctly appreciated the legal position. It is 'Sapatadi' which

establishes the factum of marriage, being an essential ceremony. Without

proof of such a ceremony, a case for bigamy cannot arise.

We have carefully gone through the evidence. The evidence of PW2 to PW5

does not establish the essential ceremony of marriage viz. 'sapatpadi'.

This Court in Kanwal Ram v. H.P. Administration, AIR 1966 SC 614 has held

as under :

"It was contended for the appellants that this evidence was not enough to

show that the marriage of Kubja and Kanwal Ram can be said to have been

performed. We think this contention is justified. In Bhaurao Shankar

Lokhande v. State of Maharashtra, Crl. Appeal No. 178 of 1963, unreported;

(Since reported in AIR (1985) SC 1564), this Court held that a marriage is

not proved unless the essential ceremonies required for its solemnisation

are proved to have been performed. The evidence of the witness called to

prove the marriage ceremonies, showed that the essential ceremonies had not

been performed. So that evidence cannot justify the conviction. The trial

Court also took the same view. The learned Judicial Commissioner does not

seem to have taken a different view.

The learned Judicial Commissioner, however, though that apart from the

evidence about the marriage ceremonies earlier men-tioned there was other

evidence which would prove the second marriage. He first referred to a

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statement by the appellant Kanwal Ram that he had sexual relationship with

Kubja."

The same principle is reiterated in Priya Bal v. Suresh Chandra, AIR (1971)

SC 1153 as under :

"According to Mr. Majumdar, 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 mar-riage 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 according to law. In this connection Mr. Majumdar referred us

to various English decisions where 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 has a

spouse living at the time of the marriage. Section 7 dealing with the

ceremonies for Hindu Marriage is as follows :

"Section 7 - Ceremonies for a Hindu Marriage.

(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

sacred fire), the marriage becomes 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 Homa and Saptapadi were

essential rites to be performed for solemnization of the marriage and there

if 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 performed.

To conclude, we have already referred to the fact that both the learned

Sessions Judge and the High Court have categorically found that the Homa

and Sapatpadi 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." (Emphasis supplied)

The position is similar in this case. In the absence of proof of such a

ceremony the factum of second marriage cannot be held to have been made

out.

Though we have come to the above conclusion, the first respondent is

undoubtedly living with Bimla, Respondent No. 4 as husband and wife.

Merely because the appellant is not in a position to prove the factum of

second marriage punishable under Section 494 of the Indian Penal Code that

does not mean the appellant should be left in the lurch. Exercising our

powers under Article 142 of the Constitution of India we think appellant

should be awarded compensation which will bring some solace when her life

is dismally dark. Therefore, we quantify the compensation at Rs. 25,000

which shall be paid by the first respondent to the appellant within eight

weeks from today.

In the result, the criminal appeal is disposed of in the above terms.