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first wife UNABLE to prove second marriage so NO bigamy on husband !!

"…….For the reasons stated above, the complainant failed to prove that there is a valid marriage according to Hindu Law between A-1 and A-2.

78. In view of the fact of finding that the second marriages under the Hindu Law and Muslim Law are found to be not valid, A-1 Sudarsana Rao alias Saleem Mohammed and A-2 Lakshmi alias Laila Banu are not liable for the offence under Section 494 of the Indian Penal Code. Since the main offence against A-1 and A-2 for contracting a valid second marriage has not been made out, A-3 to A-8, though holding the position of rank and influence, are not liable for the offence under Section 494 read with Section 109 of the Indian Penal Code…………."

Andhra High Court

B. Chandra Manikyamma vs B. Sudarsana Rao Alias Saleem … on 9 September, 1988

Bench: G R Rao

JUDGMENT

1. A-1 is the husband and P.W. 1 is the wife. They belong to Kamma community. P.W. 1 filed a complaint against A-1 to A-8 for offences under S. 494 and 494 read with S. 109 of the Indian Penal Code.

2. A-3 and A-4 are the parents and A-5 is the brother of A-1. A-6 is the brother-in-law of A-7. A-7 and A-8 are the parents of A-2.

3. The Judicial I Class Magistrate, Avanigadda, framed a charge against A-1 and A-2 for the offence under S. 494 of the Indian Penal Code and against A-3 to A-8 for the offence under S. 494 read with S. 109 of the Indian Penal Code.

4. On behalf of the complainant (PW 1) seven witnesses were examined and Exs. P-1 and P-2 were marked. On behalf of the accused, DWs. 1 and 2 were examined. The accused denied the allegations made against them.

5. The learned Magistrate, on appreciation of the evidence, found the accused guilty and convicted A-1 and A-2 for the offence under S. 494 of the Indian Penal Code and sentenced them each to undergo R.I. for one year and also to pay a fine of Rs. 1,000/- in default to undergo S.I. for one year. A-3 to A-8 were convicted for the offence under S. 494 read with S. 109, IPC and sentenced to pay a fine of Rs. 500/- each in default to undergo S.I. for six months.

6. Against the convictions and the sentences passed by the Magistrate, the accused preferred Crl. Appeal No. 74/86. The Addl. Sessions Judge, Krishna at Machilipatnam, set aside the convictions and the sentences awarded by the Magistrate. The complainant now filed the present appeal.

7. The case of the complainant is as follows :

A-1 married PW 1 on 21-4-1977 according to Hindu rites at Tirupathi. The marriage was consummated. P.W. 1 gave birth to a male child two years after the marriage and the child died after three months. Two years thereafter during the wedlock with A-1, P.W. 1 gave birth to a female child by name Siva Ravali.

8. P.W. 1’s father died during her childhood. On 21-4-1983, A-1 and A-3 heat P.W. 1 and drove her away from the house. After she was driven away from the house, she went to her mother’s house. A-1 did not take her back.

9. At the time of marriage, two acres of wet land, forty sovereigns of gold and furniture and cooking vessels were presented to P.W. 1. The income from the landed property was enjoyed by her husband A-1 and her father-in-law A-3. Her husband and the father-in-law used to pledge the gold to get loans whenever money was required for agricultural purposes and they did not render accounts of income on her property.

10. On 4-7-1983, A-1 married A-2 by name Attaluri Lakshmi, daughter of A-7 and A-8 at Teluguraopalem, Krishna District, at about 7.30 a.m. in the house of A-7 according to Hindu rites. P.Ws. 2 to 4, 6 and some others witnessed the second marriage.

11. P.W. 1 came to know about the second marriage through PW 2 on 4-9-1983. On coming to know that P.W. 1 may take any action, A-1 and A-2 converted into Islam and again they married in the house of Mirja Mohishin Ali, Moulvi of Alinekkipalem, hamlet of Shoragundi, according to Muslim rites on 21-2-1984 in the presence of P.Ws. 5 and 7. A-3 to A-8 abetted and arranged the marriage between A-1 and A-2, knowing fully well about the subsistence of the first marriage of A-1 with P.W.

12. A-1 and A-2 are residing with the parents of A-1 and they are observing Hindu formalities and they are not observing Muslim faith. A-1 is not attending the Masjid for Namaj, particularly on Fridays and they are called by their Hindu names in the village. A-1 and A-2 are worshipping Hindu deities and performing Hindu festivals. A-2 is wearing a Mangalasuthram, Metlu and Tilakam.

13. P.W. 1 issued a registered notice through her lawyer. A-1 and A-2 styling themselves as Saleem Mohammed and Laila Banu, sent a reply notice Ex. P-2. In Ex. P-2, the factum of conversion of A-1 and A-2 into Islam and the second marriage under the Muslim rites has been admitted. A-1 admitted in Ex. P-2 that P.W. 1 is his wife and the marriage took place not on 21-4-1976, but on 21-4-1977 at Tirupathi.

14. The Magistrate found that the marriage between A-1 and A-2 was performed on 4-7-1983 at Teluguraopalem in the house of A-7 and A-8. The marriage between A-1 and A-2 in the house of P.W. 7 under Muslim rites on 21-2-1984 also has been proved. The marriage between A-1 and P.W. 1 was subsisting as on the date of the second marriage either under the Hindu or under the Muslim Law. A-3 to A-8 abetted and facilitated the second marriage between A-1 and A-2 and the Magistrate has accordingly convicted and sentenced the accused as stated above.

15. On appeal, the learned Addl. Sessions Judge found that there is no evidence to show that there is a legal marriage between P.W. 1 and A-1. A-1 has converted himself as a Mohammedan and he can have four wives at a time and it is not an offence under the Muslim Law. He also found that the marriage between A-1 and A-2 was performed on 21-2-984 as alleged. It is the first marriage between A-1 and A-2 under the Muslim Law and it is not a void marriage and no offence has been made out under S. 494 of the Indian Penal Code.

16. Sri Bali Reddy, learned counsel for the appellant contended that the marriage between the appellant and the 1st respondent (A-1) was not disputed by the 1st respondent. There was not even a suggestion made to P.W. 1 when she was in the witness box questioning the said marriage and both the parties proceeded under the impression that P.W. 1 and A-1 are the wife and husband and the finding of the lower appellate court is not correct. It is further contended that the marriage between A-1 and A-2 was performed on 4-7-1983 in accordance with the custom as evidenced by P.Ws. 2 to 4, 6 and others and the well considered finding of the Magistrate ought not to have been set aside by the lower appellate court. It is next contended that the statement made by A-1 that he married A-2 according to Muslim Law would go to show that he was anxious to get over the criminal proceedings under S. 494 of the Indian Penal Code.

17. Sri Padmanabha Reddy, learned counsel for respondents-accused contended that under Law, the first and the second marriages must be proved by the complainant and the findings of the lower appellate court, basing on the rulings referred to therein are correct and the findings do not warrant any interference by this Court.

18. In a case of reversing judgment, it is the duty of the court to consider whether the reasoning given by the lower appellate court in particular is correct, or not. If the reasoning is not correct and if it is not based on appreciation of correct facts and legal position, then this court can certainly interfere with the findings of the lower appellate court.

19. A-1 and P.W. 1 are Hindus by the date of their marriage i.e. 21-4-1977. The marriage under the Hindu Law is the voluntary union of one man with one woman to the exclusion of all others satisfied by the soleminzation of the marriage.

20. Section 5 of the Hindu Marriage Act lays down the conditions to be fulfilled in a marriage between any two Hindus. One of the conditions is that neither party has a spouse living at the time of the marriage. Section of the Act says that (1) a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto; and (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. Section 11 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 has a spouse living at the time of the marriage. S. 17 of the Act reiterating the position and providing for punishment of bigamy, 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."

Section 494 of the Indian Penal Code deals with the offence of bigamy reads as under :-

"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."

The essential ingredients of the offence are-(i) that the accused had already married some person; (ii) that the accused married another person; (iii) that the husband or wife to whom the person was first married, as the case may be, was alive on the date of the second marriage; and (iv) that the second marriage was void by reason of its taking place during the lifetime of the first spouse of the accused.

21. Construing the provisions of the Act in K. Purnachandra Rao v. K. Sita Devi, (1979) 1 AP LJ (HC) 339 : (1980 Cri LJ NOC 118), Ramanujulu Naidu, J. found that in a prosecution under S. 494 of the Indian Penal Code, it is incumbent upon the complainant to establish that both the marriages pleaded by him or her were solemnized in accordance with the customary rites and ceremonies either prescribed by the Hindu Law governing the parties or recognised by the custom obtaining in the community to which the parties belong and that admission of either the first or the second marriage by the accused is no evidence of the marriage.

22. On a reading of the provisions of Sections 5,7,11 and 13 of the Hindu Marriage Act, it is clear that at the time of the second marriage, neither party should have a spouse living. If the spouse is living at the time of the second marriage, it is a void marriage.

23. The expression ‘spouse’ means a lawfully married husband or wife. Before a valid marriage can be solemnized, both parties to such marriage must be either single or divorced or a widow or a widower and then only they are competent to enter into a valid marriage. The word ‘solemnize’ means to celebrate the marriage with proper ceremonies and in due form.

24. In Bhaurao Shankar Lokhande v. State of Maharashtra, the question arose whether in a prosecution for bigamy under S. 494 of the Indian Penal Code it was necessary to establish that the second marriage was duly performed in accordance with the essential religious rites applicable to the form of marriage gone through, The first appellant in the said case was convicted for an offence under S. 494 of the Indian Penal Code for going through a marriage which was held to be void by reason of its taking place during the lifetime of his first wife. It was urged on his behalf 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. On the other hand, it was contended by the State that for the commission of the offence under S. 494 of the Indian Penal Code it was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the lifetime of his first wife, would be guilty of the offence. It was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the lifetime of his first wife would be guilty of the offence. Rejecting the contentions of the State, their Lordships of the Supreme Court, on the evidence adduced in the case, held that the prosecution had neither established that the essential ceremonies had been performed nor that the performance of the essential ceremonies had been abrogated by the custom governing 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 provisions of S. 7 of the Hindu Marriage Act.

25. In Kanwal Ram v. Himachal Pradesh Administration, their Lordships of the Supreme Court reiterating the principles laid down in Bhaurao’s case (supra) held that in a prosecution for bigamy, the second marriage had not only to be proved as a fact, but it must also be proved that the necessary ceremonies had been performed. It has also been held that in Law, the admission made by the accused regarding the second marriage is not evidence of fact of the second marriage having taken place. In bigamy case, the second marriage, as a fact, that is to say, the ceremonies constituting it, must be proved. The admission of marriage by the accused is not evidence of it for the purpose of proving the marriage in an adultery or a bigamy case.

26. In Priya Bala v. Suresh Chandra, AIR 1971 SC 1153 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 between the respondent and Sandhya Rani, held that the marriage of the complainant with the respondent was established. He however found that the accused had admitted the second marriage in his objections filed to a claim made by the appellant for maintenance under S. 488, Cr.P.C. In view of that admission, the Magistrate found that there cannot be any doubt that the respondent-husband has married Sandhya Rani while his first wife (complainant) was still alive. He also found that as the marriage of the complainant with the accused was subsisting, the second marriage is void under S. 17 of the Hindu Marriage Act and found the accused guilty of the offence under S. 494 of the Indian Penal Code. On appeal, the Sessions Judge found 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 complainant and the accused or in respect of the alleged second marriage with Sandhya Rani and set aside the order of the Magistrate convicting the accused for the offence under S. 494 of the Indian Penal Code. On appeal, the High Court differed from the finding of the learned Sessions Judge regarding the validity of the marriage between the accused and the complainant. 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 complainant and the accused. But regarding the second mariage, 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 and the Supreme Court confirmed the order of the acquittal. Even though the Sessions Judge found that the evidence does not establish that the essential ceremonies to constitute a valid marriage have been performed in the case of the first marriage and even though it has been reversed by the High Court holding that the evidence establishes that the valid marriage took place according to Hindu Law, the Supreme Court has not stated anything about the finding of the High Court with regard to the first marriage. The Supreme Court mainly considered with regard to the validity of the second marriage. The Supreme Court in the three cases cited above, considered about the proof that is required in the case of a second marriage and the admissions made by the accused in connection with the second marriage. In those cases, the Supreme Court never laid down the principle that the same set of evidence that is required for the proof of second marriage has to be taken into account in the case of first marriage also.

27. The words used in Section 494 of the Indian Penal Code "whoever marries" and "marriage" relate to second marriage. The words used in that section "husband or wife" relate to the first marriage. The first marriage is a past event and the second marriage is a recent event. The words used in Section 494 of the Penal Code and the words used in Sec 17 of the Hindu Marriage Act have to be considered carefully. If we construe Section 494 of the Indian Penal Code as it is with reference to Section 17 of the Hindu Marriage Act, it is clear that if a person marries again while the other spouse was living, it is an offence. The main offence that has to be proved in a case of bigamy is that a valid marriage took place between the husband or the wife with another person, while the other spouse was living. One of the conditions to be fulfilled is that they are husband and wife. The relationship of wife and husband comes in if there is a valid marriage. In the Supreme Court cases cited above, it was held that the valid ceremonies that are required to be necessary for a Hindu marriage have to be proved. Homam and Saptapadi are also the essential ceremonies for a valid Hindu marriage. If the custom dispenses with those two ceremonies, that custom also has to be proved. In Kamma community, there is no Homam, but Saptapadi is there and it has to be proved by cogent evidence in the case of a second marriage.

28. It is very difficult to prove all the ceremonies or remember all the events in the case of a past event which took place about 20 or 30 years ago. With regard to a recent event, i.e. a second marriage which is an offence punishable under Section 494 of the Indian Penal Code, strict proof is required and the same principle has been laid down by the Supreme Court. For instance, a man aged about 50 years marries a girl of 20 years while his first wife aged about 45 years is alive. The marriage between the husband and the wife might have taken place about 25 years ago. Can we expect the persons that were present or the persons who performed the ceremonies in the marriage, to recollect all the rituals that were observed in the marriage. It is too idle to expect or to remember the ceremonies observed in the first marriage which is a stale event as against the proof of a recent marriage which took place one or two years prior to the date of giving evidence.

29. Section 50 of the Evidence Act reads as follows :

| "Opinion on relationship when relevant :-
|
| When the Court has to form an opinion as to the
| relationship of one person to another, the opinion,
| expressed by conduct, as to the existence of such
| relationship, of any person who, as a member of the
| family or otherwise, has special means of knowledge on
| the subject, to a relevant fact :
|
| Provided that such opinion shall not be sufficient
| to prove a marriage in proceedings under the Indian
| Divorce Act, 1869 (4 of 1869), or in prosecutions
| under section 494, 495, 497 or 498 of the Indian Penal
| Code, 1860 (45 of 1860)."

The Proviso clearly shows that as a fact, the opinion alone itself is not sufficient for proof of the marriage. Section 50 of the Evidence Act never contemplated that the presumption as a whole cannot be taken into account in a case of bigamy.

30. In Bharat Singh v. Bhagirath, it has been found that the admissions made by a party are substantive evidence by themselves in view of Sections 17 and 21 of the Evidence Act and if those admissions are duly proved, are admissible evidence irrespective of the fact the party making them appeared in the witness box or not and whether such party when appearing as a witness was confronted with those statements in case it made a statement contrary to those admissions. To prove the fact that they are husband or wife or spouse, certainly there will be some admissions and the admissions made by the parties also can be taken into account to prove that they are husband and wife. In the example cited above, during the 25 years of married life, there may be some admissions and declarations made by both the parties. Both husband and wife might have given nominations in the insurance policies, G.P.F. account and other declarations might have been given before the electoral authorities and rationing authorities etc., The correspondence exchanged between the parties, the wedding cards and other invitations issued by both of them and the photos taken along with children, the acknowledgment of the in-laws and parents at different times, all have to be taken into consideration to find out whether they are husband and wife, apart from the statement that the marriage took place according to Hindu rites. The conduct of the parties, supported by oral and documentary evidence with regard to the admissions also can be taken into consideration with regard to the proof of the first marriage.

31. The Supreme Court has pointed out that the admission of the accused in his 313 Cr.P.C. examination or in a proceeding under Section 488 (old) Cr.P.C. cannot be taken into account. The admission that was considered n the Supreme Court case is with regard to the second marriage.

32. In Neelaveni v. Venkateswara Rao (unreported judgment in Cri. Appeal No. 1209 of 1987 dated 12-8-1988) the following facts have been brought out. The husband filed an application for divorce on the ground that his wife is living in adultery. After due contest, the petition filed by the husband under the Hindu Marriage Act was dismissed. The wife and the two Sons filed a petition under Section 125 Cr.P.C. for maintenance. After contest, the court ordered maintenance for the wife and the two children also. The husband married again after conversion into Islam. In that case it has been found that the order of dismissal in the O.P. filed under the Hindu Marriage Act and the order passed under Section 125 Cr.P.C. were sufficient proof the factum of the first marriage.

33. When two competent courts trial the case under the Hindu Marriage Act and under Section 125 Cr.P.C. and found the parties as husband and wife, can we still insist in the case of bigamy that the first marriage also has to be proved by adducing evidence that Homam and Saptapadi and other ceremonies have taken place, or not. If we read Section 50 of the Evidence Act coupled with the orders passed by the two competent courts, it can be held that there is a valid first marriage between Neelaveni and A-1. In that case, though the second marriage was held, it was not proved in the strict form as laid down by the Supreme Court.

34. In Ram Singh v. Susila Bai, (AIR 1970 Mys 201) it has been pointed out that the enquiry under Section 488 (old) Cr.P.C. is only a summary enquiry and the enquiry for the offence under Section 494 of the Indian Penal Code must be an elaborate one. Though the proceedings under See. 25 Cr.P.C. have to be tried summarily, still it can be said that there is a valid marriage as the husband himself never disputed the existence of the first marriage. It is only the relationship of husband and wife that has to be proved in S. 125 Cr.P.C. proceedings.

35. In Priya Bala’s case, (AIR 1971 SC 1153) (supra) the question regarding the admissibility of the admission contained in Ex. 2 and also the admission contained in Ex. 4 was raised. In that case, the trial court found that the evidence on the side of the complainant regarding the alleged second marriage is very scanty. But since the accused 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 Section 488 Cr.P.C. the Supreme Court found that no admission of the second marriage by the accused with Sandhya Rani can be culled out from Ex. 4 and as there is no admission contained in Ex. 4, the finding of the Magistrate was clearly erroneous. In a proceeding under Section 494 of the Indian Penal Code filed by the applicant on an earlier occasion on the ground that the latter has contracted a second marriage with Sandhya Rani, the complaint was however withdrawn as the particular court has no jurisdiction. In that proceeding, the appellant wanted the said Sandhya Rani to be summoned as a witness. To that application, the accused 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 the statement of the accused in Ex-2 that he married Sandhya Rani can be treated as an admission of the fact of the second marriage. The High Court was of the view that the statement contained in Ex. 2 would really be a confessional statement and declined to act on the same for two reasons – firstly, that the statement in Ex. 2 had not been put to the accused when he was examined under Section 342 Cr.P.C. so as to give him an opportunity to explain the statements contained therein; and 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. The Supreme Court held that the view taken by the High Court is substantially correct. It further held that though the statements contained in Ex. 2 may not be a confession, nevertheless, those statements, if acted upon, tend to incriminate the respondent and 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 him when he was examined under Section 342 Cr.P.C. While stating so, the Supreme Court found that the admission contained in Ex. 2 cannot, in law, he treated as evidence of the second marriage having taken place, an adultery or bigamy 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.

36. In L. Obulamma v. Venkat Reddy the trial Magistrate and the Sessions Judge convicted the accused for the offence under Section 494 of the Indian Penal Code. In that case, the accused married the complainant on 22-4-1968. There was no divorce. On 1-4-1972, accused No. 1 married accused No. 4. The High Court allowed the revision and acquitted the accused on the ground that there was no proof of a valid marriage having been contracted between the accused No. 4 and accused No. 1. The point that was involved before the Supreme court is as to whether or not the second marriage contracted by accused No. 4 was a legally valid marriage The High Court pointed out that under the Hindu Law, the two essential ceremonies of a valid marriage are Datta Homam and Saptapadi, i.e. taking seven steps around the sacred fire. The High Court found that there was absolutely no evidence to prove that any of these two essential ceremonies had been performed, and, therefore, the marriage was void in the eye of law. The High Court set aside the conviction under Section 494 of the Indian Penal Code. The contention that was raised was that the parties belong to Reddy community and were therefore governed by custom and under the custom, the two essential ceremonies mentioned by the High Court were not necessary at all to constitute a valid marriage.

37. Re Raghava Reddy was concerned only with Reddy community in Telangana alone, and the accused in L. Obulamma case (supra) belong to Reddy community not of Telangana area, but that of Rayalaseem area and the judgment in Raghava Reddy’s case (supra) cannot be of any avail. It was held that as the existence of the custom was neither mentioned in the complaint nor proved in the evidence, it would be difficult for the Supreme Court to rely on the decision of the High Court which was based on the evidence, facts and circumstances of the case before it. They agreed with the High Court that as the two essential ceremonies have not been performed at the time of the second marriage and the existence of the custom was neither mentioned in the complaint nor proved in the evidence, the conviction under Section 494 of the Indian Penal Code could not be sustained. There is no dispute with regard to the essential ceremonies being followed in the absence of custom pleaded and proved by the party.

38. In Abdul Hamid v. Asghari 1973 Cri LJ 1710 (All) the parties arc Muslims. The trial court, on consideration of the evidence adduced in the case, accepted the defence plea that the marriage of respondent No. 1 with the appellant had been dissolved before she was re-married to respondent No. 3. In consequence of this conclusion, the trial court acquitted all the respondents. It is against that, an appeal has been filed. The view expressed in Bhaurao’s case (supra); Kanwal Ram’s case (supra) and Priya Bala’s case (AIR 1971 SC 1153) (supra) has been applied by the Allahabad High Court and the Allahabad High Court held that the principle laid down in the aforesaid three cases, though the parties were Hindus, should equally apply to Muslim marriage, for, the Mohammadan Law also prescribes some ceremonies as essential to the solemnisation of a marriage.

39. In Godawari v. State of Maharashtra 1985 Cri LJ 1472 (Bom) the Magistrate acquitted the accused. The complainant (wife) filed an appeal. In that case the Magistrate found that the first marriage of accused No. 1 with the complainant was established since accused No. 1 in his statement under Section 313 of the Criminal Procedure Code himself admitted the said marriage. The Magistrate held that the first marriage was subsisting when the alleged second marriage was solemnized by accused No. 1 with accused No. 8. As regards the second marriage of accused No. 1 with accused No. 8, he held on the basis of the evidence of the witnesses examined on behalf of the complainant that accused No. 1 married accused No. 8 according to the ceremonies and the customary rites of the caste to which they belonged as deposed to by the witnesses. He held that the second marriage was validly seolemnized between accused No. 1 and accused No. 8. Having held that the second marriage was validly performed between accused No. 1 and accused No. 8 during the subsistence of the first marriage, he held that accused No. 1 was guilty of the offence punishable under Section 494 of the Indian Penal Code and sentenced the other accused also. The Sessions Judge on appeal found that the first marriage between the complainant and accused No. 1 cannot be held to be proved merely by the admission of accused No. 1 in his statement under Section 313 Cr.P.C. and he held that to establish that there was a first valid marriage between the complainant and accused No. 1, the complainant should have led requisite evidence of the solemnisation of the said marriage. No such evidence with regard to the first marriage of accused No. 1 with the complainant was led on behalf of the complainant. Hence he held that the complainant failed to prove that there was a valid marriage performed between her and the accused No. 1 which was subsisting during the alleged second marriage contracted by accused No. 1 with accused No. 8. With regard to the alleged second marriage of A-1 with A-8, he held that the evidence of the two witnesses examined on behalf of the complainant was not worthy of credence because in the first place they were related to the complainant and were, therefore, interested witnesses and also because of their conduct in not reporting the matter either to the police or to the complainant immediately after they witnessed the solemnisation of the alleged illegal second marriage. The accused were acquitted. The first question that was considered is whether the statement under Section 313 Cr.P.C. about the first marriage can be accepted. The reasoning given in Kanwal Ram’s case (supra) was considered. The learned Judge was also aware of the fact that in the Supreme Court cases, the question of validity of the second marriage alone was considered. But, however, by taking into consideration the observation of the Supreme Court, it was found that the mere statement of the accused is not sufficient to prove the marriage in the case of bigamy. The learned Judge took into consideration that for an offence under Section 494 of the Indian Penal Code, both the marriages must be legal and valid. Unless these ingredients are satisfied, the accused cannot be punished for an offence of bigamy. The learned Judge observed as follows :

"If Section 494 requires a strict proof of the validity of the second marriage, it is not understandable why such a strict proof is not required for the first marriage also. It would, therefore, follow that if for the proof of the second marriage, it is necessary for the complainant to prove all the essential requirements of a legal and valid marriage, then by the same standard and by the same reasoning it is necessary for him to prove all the essential requirements to show that the first marriage was also performed validly."

40. In Gopal Lal v. State of Rajasthan also, the question about the validity of the first marriage was not raised before the Supreme Court. The question was with reference to the second marriage The learned Judge found that the ratio of the Supreme Court in the above decisions cannot be restricted to the second marriage. If this is so, since the essentials required for proving the first marriage are not deposed to by any of the witnesses, the learned Sessions Judge rightly held that the first marriage is not proved by the complainant. In this view of the matter, the other question – whether the second marriage was validly performed or not really does not survive for consideration and the accused cannot be held guilty of the offence under Section 494 of the Indian Penal Code since the complainant has failed to prove that her marriage with accused No. 1 was legal and valid. The finding with regard to the second marriage by the Sessions Judge has been confirmed.

41. In Malan v. State of Bombay AIR 1960 Bom 393 the principle laid down by the Bombay High Court is that in order that an offence under Section 494 of the Indian Penal Code may be committed, it is necessary, at least that, all the ceremonies which are necessary to be performed in order that a valid marriage may take place, ought to be performed and, ordinarily, all these ceremonies would amount to a valid marriage but for the fact that the marriage becomes void on account of the existence of a previous wife.

42. In Vanajakshamma v. P. Gopala Krishna AIR 1970 Mys 305 petitioner No. 1 stated that she got married to the respondent at Tirupathi. She has not been asked what were the ceremonies that she underwent during the said marriage. There is no evidence to show that she has not undergone the ceremonies necessary for a valid marriage. In the notice Ex. P-2 given by her to the respondent, she has stated that she has undergone the marriage according to the religious rites. Following Bhaurao’s case (supra) it was held that the prosecution should prove that the marriage has been duly solemnised and the proceedings under Section 488 Cr.P.C. are summary in nature, meant to prevent vagrancy. That standard of proof of marriage in proceedings under Section 488 Cr.P.C. (old) need not be so high as required in prosecutions for bigamy or proceedings under the Divorce Act. In that context, they referred to the Proviso to Section 50 of the Evidence Act which reads as under :

"Provided that such opinion shall not be sufficient to prove a marriage in a proceedings under the Indian Divorce Act or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code."

The Proviso does not refer to proceedings under Section 488 (old) Cr.P.C. It only says that such opinion shall not be necessary to a marriage in proceedings under the Indian Divorce Act or in prosecutions for bigamy under the Indian Divorce Act.

43. In J. K. B. David v. Nimamoni Devi Narasimham, J. (as he then was) has pointed out that Section 488 Cr.P.C. is not included in the proviso to Section 50 of the Evidence Act and hence for proving a marriage under Section 488 Cr.P.C. (old) the standard of proof need not be so high as required in proceedings under the Indian Divorce Act or in prosecutions under Section 494 of the Indian Penal Code. In that, it has been observed that even an opinion expressed by conduct of persons who had special means of knowledge of the subject, may suffice to prove the fact of marriage in a proceeding under Section 488 Cr.P.C.

44. In Ram Singh v. Susila Bai (AIR 1970 Mys 201) (supra) the High Court considered the two essentials, i.e. invocation before sacred fire and Saptapadi. It was also found that the evidence of ceremonies performed at the time of the marriage let in by the complainant is discrepant and conflicting and there is no evidence that Saptapadi was performed and the accused is entitled to the benefit of doubt. When there is suspicion that the second marriage was not solemnised according to Hindu rites, the accused-husband is entitled for the benefit of this ruling. In the above Supreme Court cases it was held that under Section 494 of the Indian Penal Code read with Section 17 of the Hindu Marriage Act, the prosecution must prove that the essential ceremonies for a valid marriage were gone through by the accused.

45. In Venkatasubbarayudu v. Venkatiah this Court had held that the marriage between A-1 and A-2 was not a marriage in the proper form and hence it has to be held that the marriage has not yet been solemnised. The High Court also affirmed the finding that if the second 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 of the husband or wife of the person marrying arises. The High Court also found that no offence has been committed under Section 494 of the Indian Penal Code when the second marriage is not valid. In that case, the appellant canvassed the validity of the second marriage only.

46. In M. B. Krishnarama Raju v. Tirupathamma 1975 Cri LJ 208 (Andh Pra) an appeal was filed by the husband whose complaint against his wife and others for the offence under Sections 494 and 495 read with Section 109 of the Indian Penal Code had resulted in an acquittal of the accused of the charges framed against them. In that case, the Magistrate on a consideration of the evidence, found that the first marriage between the complainant and A-1 as well as the second marriage between A-1 and A-2 did in fact take place. The Magistrate held that the marriages are not legal marriages and as such the provisions of Section 494 of the Indian Penal Code are not attracted. In that case, it is not the case of the accused that the marriage between A-1 and the complainant was not performed as per Hindu rites and it was not a valid marriage. PW-1 the husband stated that he had married A-1 as per Hindu rites at his father-in-law’s house at China Lingala village on 14-5-1966. Both A-1 who is admittedly the wife and A-3 his father-in-law have admitted the marriage in their statements. PWs. 5 and 7 who have attended the marriage, have also spoken to it. Ex. P-1 is the marriage invitation card admittedly issued for the said marriage. PW-6 the Purohit who performed the marriage, had turned hostile and did not speak to the ceremonies that were conducted. The learned Judge held as follows :

"The fact that PW-6 the Purohit who performed the marriage had turned hostile and would not speak to the ceremonies that were conducted, would not make the marriage invalid. Hindu marriages are not registered. Evidence with regard to the marriage that has necessarily to be let in is mainly oral, except for the production of invitation card if available and preserved. It will be unfortunate if for want of certain details with regard to the ceremonies performed, these marriages are to be held to be invalid and not legal with its damaging consequences, especially when all the parties are agreed that a valid marriage had been performed. I, therefore, on the above considerations find that the marriage between the petitioner and A-1 is a valid marriage."

47. Till the passing of the Hindu Marriage Act and incorporation of Section 17 therein, any number of marriages by a Hindu husband were valid, as it was permitted under Hindu Law. During the subsistence of the marriage in the lifetime of the spouses, if any one of the spouses contracted another marriage, he or she will be guilty of the offence under Section 494 of the Indian Penal Code. Even with regard to second marriage, what Section 494 of the Indian Penal Code requires is the taking place of a second marriage which is void by reason of either of the spouses of the first marriage living at that time. In that case, the petitioner in his petition has stated that the first marriage was performed according to Hindu rites. He did not plead any custom. In the second marriage of A-1 and A-2 admittedly the ceremonies of Homam and Saptapadi have not been performed, though the marriage as per the evidence and the finding of the two courts below, did take place. Even the Archakas who presided over the marriage, stated that the marriage was performed according to the Puranayuktha procedure and as per its requirements. The Homam and Saptapadi are not necessary and it was also not established that Puranayuktha form of rituals is the one adopted as the custom of their community at their marriages. It was found that the second marriage was not a valid marriage and not being a valid marriage, the provisions of Section 494 of the Indian Penal Code are not attracted and the appeal was dismissed.

48. In the case on hand, PW-1 the wife stated that the marriage between her and A-1 was solemnised at Tirupathi according to Hindu rites on 21-4-1977. During the wedlock, one male child was born two years after the marriage. In cross-examination nowhere it has been suggested that the marriage between her and A-1 is an invalid one, or the ceremonies as required, did not take place. On the other hand, the suggestions given to her shows that having no other alternative for her continued refusal for A-1 to marry, A-1 and A-2 got themselves converted into Mohammadanism and entered into the marriage under the Muslim Law. The suggestion is only with regard to the second marriage between A-1 and A-2. PW-2 stated that the marriage between PW-1 and A-1 was solemnised on 21-4-1977 at Tirupathi according to Hindu rites. In cross-examination also he stated that he questioned A-7 and A-8 why they performed the marriage of A-1 and A-2 when his wife is alive. In cross-examination there is no dispute about the statement made by PW-2 about the 1st marriage. The questions that have been suggested to PW-2 show that they affirmed the first marriage as a correct one and they never disputed the same. PW-4 stated that PW-1 is the wife of A-1 and PW-1 is the daughter of his elder brother. In cross-examination he stated that he called out A-3 separately and talked to him as to why he was performing the marriage when the first wife is alive. Nowhere in cross-examination it has been elicited to anyone of the witnesses that there is no marriage or a valid marriage between A-1 and PW-1. In Vanajakshamma’s case (AIR 1970 Mys 305) (supra) a notice has been given by the wife to her husband wherein she stated that she has undergone the marriage according to Hindu Law. In that case also, the evidence is that she got married to the respondent at Tirupathi and she has not been asked what were the ceremonies that she underwent.

49. In this case, the complainant issued the notice stating that the marriage was performed according to Hindu rites. To that, reply has been sent by the husband. The husband has stated that the marriage between the complainant and himself took place at Tirupathi not on 21-4-1976 but on 21-4-1977. In that reply notice, he admitted about the factum of the marriage and the father-in-law who gave the reply also admitted about the factum of the marriage and giving birth to the child. When nothing suggested or elicited in cross-examination and when there is a clear admission about the existence of the first marriage in the reply notice much earlier to the filing of the complaint, it cannot be said that there is no valid first marriage at all.

50. The marriage between the complainant and A-1 is a valid one and it is subsisting. The degree of proof required for the second marriage is not the same for the proof of relationship of husband or wife or spouse. The words used in Section 494 of the Indian Penal Code and Section 17 of the Hindu Marriage Act ‘husband’, ‘wife’ or ‘spouse’ have to be taken into consideration in order to make out a clear distinction with regard to the mode of proof for the first and second marriages.

51. It is not well-settled that for the proof of the first marriage, the same degree of proof that is required for a second marriage is necessary. Apart from the presumption under Section 50 of the Evidence Act, the admissions and the other surrounding circumstantial evidence that has been brought in to prove that they are husband and wife is sufficient to hold that they are husband and wife or spouse. It is well-settled that it is incumbent upon the complainant to establish that the second marriage pleaded by him or her, was solemnised in accordance with the customary rites and ceremonies either prescribed by the Hindu Law governing the parties or recognised by the custom obtaining in the community to which the parties belonged and any admission made by the accused in that regard cannot constitute evidence of that fact.

52. Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955, lays down :

"Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has ceased to be a Hindu by conversion to another religion."

Section 13 of the Act provided for legal dissolution of marriage. So long as such divorce has not been obtained by one of the two parties on presentation of a petition from a competent court, the marriage subsists and a second marriage cannot be contracted (Ishwar Singh v. Hukam Kaur FB.

53. N. R. Raghavachariar on Hindu Law Principles and Precedents (VII Edition Vol. II Section 13(6) at page 1036) stated the Law thus :

"It must be distinctly understood that conversion to an alien faith does not ipso facto result in divorce of the converted spouse from the other spouse. A petition is necessary for the purpose."

54. The marriage between the complainant and A-1 is a valid one and it is subsisting. Even assuming for a moment that the conversion is there and A-1 the husband, ceased to be a Hindu, he is not entitled to divorce under Section 13(1)(ii) of the Hindu Marriage Act on the ground that he himself got converted from Hinduism to Mohammedanism. The language of the sections is very clear and it states that on a petition presented by a spouse, either the husband or the wife for a decree of divorce on the ground that the other party has ceased to be a Hindu by conversion to another religion". It is quite apparent that the husband can file a petition against the wife only on the ground that she got herself converted from Hinduism to any other religion and it is not open to the husband to invoke the provisions of Section 13 of the Act and seek dissolution of the marriage on the ground of his own conversion from Hinduism to any other religion. There is a clear bar for the husband to file a petition for divorce on the ground of his changing religion. There is no rule of Hindu Law which forbids the subsistence of the marriage between the wife and the husband, in spite of the husband changing his religion to Mohammadanism and the conversion does not operate, per se, or ipso facto as a dissolution of a marriage. On the face of the suggestion that the marriage between A-1 and A-2 took place according to Mohammadan Law on the refusal of the complainant, it is clear that A-1 wants to get over the penal consequences of Section 494 of the Indian Penal Code. A-1 does not cease to be a Hindu merely because he professes a theoretical allegience to another faith on the ground that he wants to have a second wife. If A-1 abdicates his religion by a clear act or renunciation and adopts the other religion by undergoing the formal conversion, he would cease to be a Hindu within the meaning of Clause 13(1)(ii) of the Act. It is now well-settled principle of matrimonial law that decrees of dissolution of marriage are to be made only upon strict proof. The court cannot pass a decree granting any relief under the Act in favour of husband who is in any way taking advantage of his or her own wrong or disability for the purpose of such relief. A right to get a divorce on the ground of change of religion is given to the party who continues to be a Hindu. A-1 who has converted himself into Mohammadanism is not entitled to seek divorce of his first wife also.

55. As no divorce has been obtained, the marriage between A-1 and PW-1 is still subsisting.

56. Having found that A-1 and PW-1 are husband and wife, we have to scrutinise the evidence with regard to the proof of the second marriage. The burden is on the complainant to prove that the marriage was solemnised according to Hindu rites and if there is any custom dispensing with the formalities, that custom also has to be proved.

57. In this case, the parties belong to Kamma community and Saptapadi is a must. PWs. 2 to 4 and 6 are the witnesses that were examined to speak about the second marriage. PWs. 2 to 4 did not state that Saptapadi did take place at the time of the second marriage between A-1 and A-2. PW-6 stated that touching of feet by each other is a Saptapadi and it is a custom in Kamma community. The meaning of Saptapadi is entirely different and what PW-6 stated is not correct. According to these witnesses, the marriage between A-1 and A-2 was performed on 4-7-1983 through putting "Jeelakarra and bellam’ on their heads and chanting mantras and tying a ‘Tali’ (Mangala Sutram) and putting sacred fire. When the second marriage is alleged to have been performed under the Hindu rites between A-1 and A-2, strict proof of ceremonies are necessary. As there is no clinching evidence about the proof of Saptapadi and other ceremonies required for a marriage in Kamma community, it can be said that though the marriage as such has been performed, strict solemnisation of the marriage as required under the law for an offence under Section 494 of the Indian Penal Code has not been proved.

58. In Sitaratnam v. Venkata Ramakrishna (unreported judgment in Crl. Appeal No. 753/87 dt. 17-8-88) the first marriage was held to be a valid marriage by the Magistrate and the same was confirmed by the Sessions Judge. The dispute is only with regard to the fact of the second marriage of A-1. Both the courts below found that the second marriage has taken place at Simhachalam Temple as alleged, but the necessary ceremonies that are required for a valid marriage, have not been proved. The direct evidence adduced with regard to the factum of the second marriage was found to be a doubtful one. As there is no valid second marriage in the eye of law, the finding of the two courts has been confirmed.

59. In Veeraraghavamma v. Somayya (unreported judgment in Crl. Appeal No. 602/87 dt. 16-8-88) there is no dispute with regard to the first marriage. With regard to the second marriage, the direct evidence is there and Ex. P-5 certificate, evidencing the fact that the marriage took place between A-1 and Venkateswaramma, the second wife is also there. In the office register maintained by the Venkateswara Swamy Temple, Jamalapuram, the signatures of the parties are also available in the evidence it has been brought out that both A-1 and the second wife were seen coming together from the temple. No evidence has been let in with regard to the performance of Homam and Saptapadi. This court held that the certificate from the temple where the second marriage took place, is not sufficient to draw a presumption that there is a valid marriage according to Hindu Law and held that the marriage between A-I and the second wife Venkateswaramma is invalid, even though they were found living together immediately after the marriage at the house of the husband and the marriage between A-1 and the complainant was held to be a valid one.

60. In Krishna Ramaraju case (1975 Cri LJ 208) (Andh Pra) (supra) the second marriage of A-1 and A-2 was admittedly done, but the solemnisation of Homam and Saptapadi were not performed though the marriage did take place. It was found that the second marriage was not a valid one and not being a valid marriage, the provisions of Section 494 of the Indian Penal Code are not attracted and the appeal was dismissed.

61. During the subsistence of the first marriage the second marriage will generally be done in secrecy. It is too idle to expect direct testimony. In some cases, the Purohit also who performed the marriage will be treated as an abettor. The courts are giving acquittals on the ground that the required ceremonies for the second marriage have not been proved beyond reasonable doubt. When an exception has already been made in Section 494 of the Indian Penal Code that if the whereabouts of the persons were not known, the other spouse can marry and the other effected person cannot file any application for the offence of bigamy. I am of the view that suitable legislation has to be made with regard to the mode of proof of the second marriage. If the marriage was done publicly and openly to the knowledge of one and all, the court can expect direct evidence. When second marriages are being performed in secrecy knowing fully well that it is an offence and if the courts insist on strict proof, it amounts to encouraging perjury. The motto of the court is not to encourage perjury, but to find out the real truth and convict the accused if there is a second marriage. Unfortunately, none of the social organisations which claim about the protection of the rights of women, have taken any steps to see that suitable legislation be made with regard to the mode of proof or performance of the second marriage. If the second marriage is by adopting a simple formula of changing his own religion, then there would be no safety for the first wife and no useful purpose would be served for the penal consequences that have been contemplated under Section 494 of the Indian Penal Code. If the easy course as is now made by A-1 and A-2 for getting married under Muslim Law is permitted, every husband who feels inconvenience to continue the matrimonial relations with his wife, will have recourse to law for such a conversion and have the marriage and claim that he can have four wives at a time and the possibility of his getting a clean acquittal, in spite that the admission by him, is there.

62. The second marriage in this case between A-1 and A-2, according to Hindu rites though performed on 4-7-1983, has not been duly proved strictly in accordance with the principles laid down by the Supreme Court.

63. Now we have to consider the marriage of A-1 and A-2 under the Muslim Law. The case set up by the accused is that due to the refusal of the complainant, A-1 and A-2 got themselves into Islam and entered into the marriage under the Muslim Law. The case of the complainant is that having realised that action may be taken for the second marriage, the accused got converted themselves into Islam and married on 21-2-1984.

64. Section 252 of Mulla’s Principles of Mohammadan Law says that it is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage and an acceptance of the proposal by or on behalf of the other in presence and hearing of two male or one male and two female witnesses who must be sane and adult Mohammadans. In Section 254 it has been stated that a marriage contracted without witnesses as required by Section 252 is irregular, but not void. A joint reading of Sections 252 and 254 of the Mohammadan Law, therefore, leads to this conclusion that it is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage and an acceptance to the proposal by or on behalf of the other. It is this ceremony, the non-performance of which will render a marriage void. The omission to have witnesses to the marriage will only render the marriage irregular and not void. In Abdul Hamid’s case (1973 Cri LJ 1710) (supra) the Allahabad High Court held that the principle laid down by the Supreme Court with regard to the second marriage, though the parties were Hindus, should equally apply to Muslim marriage, for the Mohammadan Law also prescribes some ceremonies as essential to the solemnization of a marriage.

65. A-1 made an admission about the second marriage in his reply notice as under :

"It is true that my client No. 1 married my client No. 2 as already stated. Their marriage cannot be invalid or illegal as they are converted Mohammadans prior to the marriage and their marriage has taken place according to Mohammadan Law."

Apart from relying upon the admissions made by the accused, the prosecution has examined PWs. 5 and 7 to prove the factum of the marriage under the Muslim Law between A-1 and 4-2. PW-5 is an illiterate and he is the custodian of the Nikka register. According to him, the marriage of A-1 is performed in the house of Mirza Mohishin Ali. Ex. P-1 is the photostat copy of the Nikka register. In cross-examination PW-5 stated that himself, Mohammad Issac and four Hindus and Mirja Mohishin Ali (PW-7) went to the house of the bride by name Laila Banu. The bride, on enquiry by PW-7, consented to the marriage. Thereafter, they questioned A-1 about his willingness and he too consented to the marriage and the marriage was performed and he is one of the attestors. In further cross-examination he stated that the marriage was performed according to Shia Law and he did not know the names of the bride and bridegroom in Ex. D-1. PW-7 is working as a Moulvi for Alinekkipalem, hamlet of Shoragundi. He stated that he chanted the Nikha mantras for the marriage of Laila Banu and Saleem Mohammed on 21-2-1984 and he made the entry at page 52 of the Nikka register. According to him, there is no practice of verifying whether the bridegroom attends Masjid for Namaj before performing the marriage. In cross-examination he stated that since about two or three months prior to the marriage, Saleem Mohammed and Laila Banu converted into Mohammadanism and they were attending the mosque for festivals on all Fridays. According to him, a male Mohammadan can marry four ladies.

66. The marriage as performed by PW-7 is in accordance with the ceremonies prescribed under the Muslim Law. The conversion as such is found to be a doubtful one. The conversion is only for the purpose of having a second marriage. There is no proof that A-2 in particular converted into Mohammadanism. The marriage was performed according to Shia Law. In Shia Law, a marriage between a Muslim male and a non-Muslim female is unlawful and void; and so also is a marriage between a Muslim female and a non-Muslim male. As there is no proof about the conversion except the admission as A-1 and A-2 continued to be Hindus even after they converted into Mohammadanism, the marriage though performed according to Muslim Law, cannot be deemed to be a valid marriage.

67. In this connection, we have to consider whether the conversion is real and bona fide, or not. If the conversion is found to be not correct basing on the faith, we have to hold that the marriage that was performed under the colour of conversion, cannot be treated as a valid marriage. Regarding the conversion of A-1 and A-2 into Islam, there is no proof and no evidence except the bald statement of PW-7. Since how long they are attending the Masjid, was not known, nor was explained except mentioning that fact in the reply notice Ex. P-2 to the effect that A-1 was converted into Mohammadanism on 12-10-1983 and A-1 was converted on 16-11-1983. The evidence of PW-7 shows that since two or three months prior to the marriage, A-1 and A-2 converted into Islam. Two or three months means it can be taken as November or December, but it cannot be taken as October, 1983. The reasons for their conversion also have not been stated by A-1 and A-2. Admittedly A-1 and A-2 belong to two different villages and the marriage under the Mohammadan Law was performed in a different village. How PW-7 a resident of Alinekkipalem, hamlet of Shoragundi, was able to know about their movements with regard to attending the Mosque is not known. The capacity of the witness to observe the movements of the accused with regard to their activities so far as the faith is concerned, has to be taken into account. DW-2 is a resident of Teluguraopalem. His house is situated on the western side of the house of A-7 and A-8. He was examined to speak about the fact that there is no marriage under the Hindu Law at the house of A-7 and A-8 on 4-7-1983. In cross-examination he stated that the name of A-2 is Lakshmi and the name of A-1 is Sudarsana Rao. A-2 is the only daughter of A-7 and he does not know whether A-2 on her own accord or with the consent of her parents, married A-1. This is the only marriage A-7 performed and DW-2 was not invited to the marriage. Even though he stated that no marriage of the daughter of A-7 and A-8 took place with A-1 in the house of A-7 on 4-7-1983, in cross-examination he stated that he does not know on what date the alleged marriage took place between A-1 and A-2 and he does not know whether A-1 married previously. If really there is a conversion, a person like DW-2 would be the first person to say that there is a conversion and their names have been changed. On the other hand, he stated that the names of A-1 and A-2 are Lakshmi and Sudarsana Rao. It is not elicited even in re-examination that the names of A-1 and A-2 are changed. A neighbour who was able to know that A-2 gave birth to a child, would not have failed to know the change of religion. The change of religion is an independent act which can he noticed of by the neighbours in particular, and the villagers in general. If it is a metropolitan area, it is very difficult to know the change of religion, but in villages the change of religion will be known to one and all. The mere statement that they converted into Islam without any proof of conviction will not be of any avail to them to contend that the conversion is in the real form. PW-1 in clear terms stated that A-1 and A-2 are residing with the parents of A-1 and they are observing Hindu customs only. A-2 is wearing a Mangala Sutram, Metlu and Tilakam. A-1 is following Hindu formalities and he did not attend Masjid for Namaj particularly on Fridays and A-1 and 4-2 are called by their Hindu names in the house and also in the village and they are worshipping Hindu deities and performing Hindu festivals. In cross-examination she stated that after she came to know about the marriage, she actually saw in what manner A-1 and A-2 are living together in the house of A-3 and she went several times to Bhatlapenumarry without going to the house of A-3 and she came to know that A-1 has changed his name as Saleem Mohammed and A-2 as Laila Banu. PW-1 denied the suggestion that having no other alternative for her continued refusal to live with A-1, A-1 and A-2 got themselves convened into Islam and entered into the Muslim marriage under Muslim Law. The suggestion itself discloses that he marriage is ‘for convenience and not by conviction’. The suggestion made to PW-1 that she filed the complaint to harass A-1 and A-2 and his relatives and there was nothing wrong in entering into a marriage after conversion into Muslim also indicates that the second marriage is only for convenience. Nowhere it has been suggested in cross-examination of PW-1 about A-1 and A-2 not observing the Hindu formalities. Nothing has been elicited from the direct witnesses who alleged to have attended the second marriage that A-1 and A-2 are not observing the Hindu formalities and they are being called in the society after the marriage by Muslim names as Saleem Mohammed and Laila Banu.

68. In Ex. P-2 reply notice it is only mentioned that in the years 1982 and 1983 A-1 worked as a clerk in Rao Structural Works Private Limited Contractors at the Steel Plant, Visakhapatnam. In the very same notice, it has been mentioned that A-1 was converted into Mohammadanism on 12-10-1983, professing faith in Mohammadanism that there is but one God and that Mohammed is His Prophet and by reading Kalma in the Masjid in Alineekipalem, hamlet of Shoragudi village, Vuyyur taluk in Krishna district in the presence of Kazi of the said Masjid and four other Muslim elders in that village. None of those four muslim elders were examined to prove the conversion. The conversion is within the special knowledge of A-1 and A-2. PW-7 has not mentioned the date of conversion as 12-10-1983. When the accused was working at Visakhapatnam during the year 1983, it is impossible for him to come all the way to Krishna district and convert himself into Mohammadanism, that too in a remote village. Except the statement about the conversion, there is no evidence on behalf of A-1 and A-2 to show that they followed Muslim faith and by conviction they converted. On the other hand, their conversion is the result of the refusal of PW-1 to give her consent to the second marriage. Their alleged conversion without following the religion in effect and practice after the marriage, shows that it is only to get over the penal consequences for the offence under Section 494 of the Indian Penal Code this conversion has taken place. The contents in Ex. P-2 reveal the mind of the accused that he wants to get over the penal consequences of the second marriage. The evidence of PW-1 supported by the reasoning given by me above shows that the conversion is only for convenience and not by conviction. The screening of the property of A-1 and obtaining a relinquishment deed in the year 1983 with a stipulation that the property has already been relinquished even prior to the date of the first marriage indicates the guilty mind of A-1 and his parents. The evidence of PW-1 supported by the evidence shows that the release deed obtained from A-1 is only for the purpose of second marriage and A-1 and A-2 cannot be treated as having any faith in Islam. No doubt the court cannot go into the motive for conversion, hut the conversion, prima facie, indicates thai it is only for convenience and the evidence establishes that before and after the marriage, A-1 and A-2 were treated as Hindus. It cannot be said that a valid marriage between A-1 and A-2 took place according to Shia Law.

69. Even though the formalities have been complied with during the performance of the marriage under Muslim Law, it cannot be treated as a valid marriage.

70. From the discussion made above, it is clear that though the second marriage between A-1 and A-2 was performed in the house of A-7, the complainant failed to prove that the required ceremonies i.e. Saptapadi in particular has been performed during that marriage. The complainant failed to prove the second marriage between A-1 and A-2 under Hindu Law as a valid marriage. If the second marriage under Hindu rites or according to custom is a valid marriage, then only the question of committing the offence under Section 494 of the Indian Penal Code read with Section 17 of the Hindu Marriage Act arises. Though the required ceremonies have been observed at the time of the marriage of A-1 and A-2 under Muslim Law, the complainant was able to succeed that prior to or after the marriage, A-1 and A-2 remained as Hindu and are observing the Hindu formalities only and were treated by the society as Hindus. A marriage contracted by a Hindu under the guise of the conversion by following Muslim ceremonies strictly, though not following the faith in Islam either before or after the marriage, cannot be treated that he has contracted a valid marriage under the Muslim Law.

71. On the facts of this case, A-1, a Hindu, married another Hindu belongs to another village, under Muslim rites on 21-2-1984. The marriage though performed according to Muslim rites and valid according to that Law, cannot be treated as a valid marriage, as the evidence reveals that they have no faith and they are not following Mohammadanism prior to or subsequent to the marriage. The marriage contracted for convenience without conviction in Mohammadanism by two Hindu (male and a female) cannot be treated as a valid marriage. The marriage between A-1 and A-2 under Muslim Law as alleged to have taken place on 21-2-1984 is an invalid marriage.

72. Now the question that falls for consideration is whether the complainant was able to prove that A-3 to A-8 abetted the offence of bigamy.

73. In Malan’s case (AIR 1960 Rom 393) (supra) it was held that the mere presence at the commission of crime even with the awareness that a crime was being committed, is not in it self an intentional aid. To be present and to be aware that an offence is about to be committed does not constitute the abetment unless the person thus present holds some position of rank or influence such that his countenancing what takes place may, under the circumstances, be held a direct encouragement.

74. In this case the allegation is that apart from A-1 and A-2, the remaining accused were present and they are abettors. The evidence of PWs. 2, 4 and 6 reveals that the accused were present at the time of the second marriage on 4-7-1983 at Teluguraopalem. The evidence also shows that four Hindus also were present at the time of Muslim marriage, but their names were not elicited. The parents on either side are holding the position of a rank to influence the bride and the bridegroom for performance of the marriage. The presence of the parents of either side cannot be said that they are mere spectators and they have not intentionally aided or abetted the commission of the offence. If the parents of either side and some other relations who have got knowledge that the first wife is alive and the first marriage is subsisting are present at the second marriage, it can be said that they intentionally aided and abetted the commission of the offence.

75. Section 107 of the Indian Penal Code defines abetment as follows :

"A person abets the doing of thing who – First :- Instigates any person to do that thing; or

Secondly :- Engages with one or more other person or persons in any conspiracy for the doing of that thing; if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly :- Intentionally aids, by any act or illegal omission, the doing of that thing."

It is well known that an act of abetment may take place in any one of the three ways – (1) instigation; (2) conspiracy; or (3) intentional aid. Explanation 2 to Section 107 says that an act of abetment may take place prior to the commission of the offence. In order that Explanation 2 to Section 107 applies, it is necessary to determine whether an aid was given and whether with that aid, the act or the offence was committed. Explanation 2 to Section 107 says that whoever either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. If the second marriage either under the Hindu or under the Muslim Law has been held to be proved beyond reasonable doubt, A-3 to A-8 who were present, are liable for the offence. On facts it has been found that though the two marriages (second Hindu and second Muslim marriages) were performed, they are not valid marriages in the eye of law and since they are not valid marriages and A-1 and A-2 themselves are entitled for the benefit of doubt, the question of convicting the abettors under Section 494 read with Section 109 of the Indian Penal Code does not arise. So, the acquittal of A-3 to A-8 by the lower appellate court is correct.

76. The complainant proved that there is a valid subsisting marriage between her and her husband (A-1). If the complainant failed to prove that there is no valid first marriage, the accused are not liable for the offence of bigamy, even though the complainant proved that the second marriage was solemnised according to Hindu rites. If the second marriage was solemnised according to Hindu rites and proved to be a valid one while the first wife is alive and the marriage with her is subsisting, then only the court is entitled to declare the second marriage as void and punish the accused for the offence under Section 494 of the Indian Penal Code.

77. For the reasons stated above, the complainant failed to prove that there is a valid marriage according to Hindu Law between A-1 and A-2.

78. In view of the fact of finding that the second marriages under the Hindu Law and Muslim Law are found to be not valid, A-1 Sudarsana Rao alias Saleem Mohammed and A-2 Lakshmi alias Laila Banu are not liable for the offence under Section 494 of the Indian Penal Code. Since the main offence against A-1 and A-2 for contracting a valid second marriage has not been made out, A-3 to A-8, though holding the position of rank and influence, are not liable for the offence under Section 494 read with Section 109 of the Indian Penal Code.

79. It is unfortunate that the complainant lost the company of her husband and the provisions of law and the standard of proof that is required for the proof of the marriages as on today for the offence of bigamy, have not come to her aid, though her husband contracted a second marriage with A-2. A-1 and A-2 are living together in the house of A-3 to the knowledge of one and all, but they could not be convicted under the provisions of law as on today. The society as such also was not in a position to take action against A-1 and A-2, who contracted a second marriage while the first wife was alive with one child. I feel it is high time to consider the desirability of bringing suitable amendments to make the provision of law under Section 494 of the Indian Penal Code and Section 17 of the Hindu Marriage Act, 1955, effective by taking into consideration the decisions rendered on that aspect.

80. In the result, the appeal fails and it is accordingly dismissed.

81. Appeal dismissed.

Wife gets house + maintenance for two kids from Swedish divorce. Still comes to India & files 498a, bigamy; #Misuse_498a in 1990s to the core! wife’s brother an influential police officer. Husband runs around courts to get the 498a etc quashed !! Further, though notice was issued to the 2nd respondent (yeah the 498a wife !!!) , she has not choosen to appear either in persons or through an Advocate at the High court. court does NOT punish false 498a filing wife !!!

Andhra High Court

T. Venkaeshwarlu And Others vs State Of A.P. And Others on 27 July, 1998

Equivalent citations: 1998 (5) ALD 426, 1998 (2) ALT Cri 462, 1999 CriLJ 39

Bench: S Maruthi

JUDGMENT

1. This Writ Petition is filed for quashing the proceedings in CC No.482 of 1995 before the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad (for short ‘the Mahila Court’).

2. The facts in brief are as follows:

The 1st petitioner married the 2nd respondent on 31-1-1985. At the time of marriage he was working with M/s. Raasi Ceramic Industries, Hyderabad. They have two children bom on 25-10-1985 and 5-6-1987. Towards the end of 1986, a Swedish Company selected the 1st petitioner as a Technical Consultant/Ceramic Design Engineer, initially for a period of six months which was extended further in November, 19S7. The 2nd respondent joined the 1st petitioner along with her two children, Smt. Anusuya, the elder sister of the 2nd respondent and Sri Narayana, the brother-in-law of the 2nd respondent at the expense of the 1st petitioner. Subsequently differences cropped between the 1 st petitioner and the 2nd respondent which led to a decree of divorce granted by the District Court in Nacka, Sweden on 28-3-1994 under the Swedish Marriage Code of Judicial Procedure. On 2-11-1994 the Swedish Court granted the custody of children to the 2nd respondent who also got the family house. The 1st petitioner is paying the maintenance at the rate of Swedish Kamavar 1500 for each child. The 1st petitioner along with his two sons had acquired Swedish Citizenship. The 2nd respondent \\~as granted Permanent Residence Permit on 27-9-1989 as she was not keen on acquiring Swedish Citizenship, The Permanent Residence Permit was being renewed and -is valid upto 27-9-1998. While granting the decree for divorce, the final judgment of the Swedish Court stated that the aggrieved party could prefer an appeal before the Swedish High Court before 23-11-1994. However, the 2nd respondent did not prefer any appeal. She accepted the conditions specified in the said judgment. She continues to stay in Sweden enjoying the benefits of the divorced spouse in terms of the Swedish Law as provided by the Swedish Social Office and Social Insurance Office. The petitioner No. 1 got married to the 6th petitioner on 11-5-1995. A certificate of marriage was issued under the Hindu Marriage Act, 1955 by the Marriage Registrar on 20-5-1995 at Nellorc, Andhra Pntdesh.

3. While so, the 2nd respondent filed CC No.lS2 of 1995 on the file of the Mahila Court, making allegations of cruelty, bigamy, forgery and criminal conspiracy under Sections 498(A), 494, 468 and 120-B of the Indian Penal Code (IPC). In the said complaint, the petitioners 1 to 7 are shown as Accused, Aggrieved by the said complaint, the present Writ Petition is filed for quashing the same on various grounds under Article 226 of the Constitution of India.

4. The main argument of the learned Counsel for the petitioners is that the complaint is initiated maliciously at the instance of the 3rd respondent who happens to be the brother-in-law of the 2nd respondent, who is an influential Police Officer, The 2nd respondent though residing at Sweden came to India in 1995 and at the instance of the 3rd respondent initiated the complaint. The Counsel submitted that the FIR docs not disclose even a prima facie offence of either bigamy, forgery or cruelty and, therefore, the investigation should not be allowed to proceed as it would amount to harassment of the 1st petitioner. If the complaint filed by the 2nd respondent did not disclose a prima facie offence, it is open to this Hon’ble High Court to interfere under Article 226 of the Constitution of India. In support of his contentions, he relied on State of Haryana v. Bhajan Lal, , Rupan Deal Bajaj v. Kanwar Pal Singh Gill, , Y. Narasimha Rao v. Y. Venkata Laxmi, etc.

5. The learned Counsel for the petitioners further submitted that as regards the offence of bigamy under Section 494 IPC, there was a valid divorce in accordance with law by the District Court at Nacka, Sweden. The divorce was granted on the basis of consent. It is true that the 2nd respondent did not agree for consent at the initial stage. However at a later stage she consented on condition that the custody of the children will be given to her. Accordingly a decree of divorce was passed, The said decree is a valid decree within the meaning of Section 13 CPC and, therefore, it is binding on both the parties and the Courts in India. Against the said judgment though there was a right of appeal, the 2nd respondent did not file any appeal. Having waited for an appeal to be filed and since no appeal was filed within the period prescribed, the 1st petitioner entered into a marriage with the 6th petitioner at Nellore. The decree of divorce granted by the Swedish Court is binding on the Civil Courts. Therefore, the 2nd respondent cannot make an allegation of bigamy against the 1st petitioner. In view of the above, the facts stated in the complaint docs not disclose a prima facie offence of bigamy. Further, the marriage was celebrated at Nellore. Therefore, apart from the fact that the facts do not disclose the prima facie offence of bigamy, the Courts at Hyderabad has no jurisdiction to try the offence under Section 494 IPC as the marriage was celebrated at Neilorc.

6. The next offence alleged in the complaint is cruelty under Section 498(A) IPC. The complaint indicates the alleged cruelty by the 1st petitioner at Sweden and Nellore, At no point of time either the petitioner No.1 or the 2nd respondent arc the residents of Hyderabad. Further the allegations of cruelty against the 1st petitioner upto. 1992 are in Sweden while the allegations of cruelty in 1993 arc alleged to be in Ncllore, Therefore, none of the acts of cruelty arc committed within the jurisdiction of the Mahila Court at Hyderabad. Therefore, the Mahila Court has no jurisdiction to try the offence as the complaint does not disclose prima facie offence within the jurisdiction of the Mahila Court at Hyderabad.

7. The next offence alleged in the complaint is forgery. The complaint says that:

"A-1 while in India had forged her signatures on an application fonn and submitted the same to the Branch Manager – State Bank of Hyderabad, Gunfoundry Branch, Hyderabad and also to the Grindlays Bank, Abids, Hyderabad, where she was having a joint account. In this regard, the conduct of A-1 is sheer criminal in nature and he is liable for punishment under Sections 468 and 471 IPC."

In support of this allegation, the 2nd respondent filed a fax message. A perusal of the fax message indicates that it was issued from Sweden on 27-5-1992, Therefore, the alleged offence of forgery has not taken place within the jurisdiction of the Manila Court at Hyderabad. Consequently, the Mahila Court at Hyderabad has no jurisdiction.

8. The learned Counsel for the petitioners also submitted that the petitioner No.l obtained Swedish Citizenship and, therefore, the Manila Court cannot take cognizance of any of these offences without the previous approval of the Central Government under Section 18S of the Criminal Procedure Cede, There is no evidence that any attempt is made to obtain the previous approval from the Central Government before the Mahila Court directed the Police to investigate into the offences alleged against the 1st petitioner and, therefore, the Courts in India have no jurisdiction to investigate the offences.

9. In view of the above, the learned Counsel for the petitioners submitted that it is evidently a fit case where the prosecution should be quashed exercising the extraordinary jurisdiction under Article 226 of the Constitution of India.

10. The learned Counsel for the respondents No.3 & 4 vehemently opposed the arguments advanced by the learned Counsel for the petitioners. The learned Government Pleader appearing for the 1st respondent contended that it is too early to the Court to interfere under Article 226 of the Constitution of India. It is not a case that the complaint does not disclose an offence. It is only at the stage of investigation. Section 188 of Cr.PC bar an enquiry or a trial into an offence in a case where the offence is committed by a non-citizen, without the previous approval of the Central Government. There is a distinction between an enquiry and investigation under the Criminal Procedure Code. Section 188 Cr.PC does not bar an investigation into an offence. The Counsel relied on the following judgments in support of his contentions:

(1) R.D. Bajaj’s case (supra)

(2) MM Rajendran v. K. Ramakrishnan,

(3) Stale of Bihar v. P.P. Sharma, 1992 SUPP.(1)SCC222

(4) Ramesh Venkat Perumal v. Stale of Andhm Pradesh, 1988 (1) ALT (Crl.) 1 and

(5) State of Punjab v. Raj Singh, .

While the Counsel for respondents 3 and 4 relying on P.P. Sharma’s case (supra) and * the Judgment of the Supreme Court in Bhajan Lal ‘s case (supra) vehemently contended that the 1st petitioner committed fraud on the 2nd respondent and obtained a divorce by means of deceipt and subjected her to cruelty. She has no other alternative except to seek justice from the Courts of law. The Counsel further submitted that this Court under Article 226 of Constitution of India should not quash the investigation at the initial stage. It is a matter of evidence whether the offence is committed or not. In view of the Judgments of the Supreme Court laying guidelines for interfering under Article 226 of the Constitution of India, it is evidently a fit case where the Writ Petition should be dismissed.

11. The question, therefore, is whether it is a fit case for exercising the extraordinary jurisdiction under Article 226 of the Constitution of India and quashing the investigation directed by the Mahila Court at Hyderabad into the complaint filed by the 2nd respondent against the 1st petitioner and others.

12. Before referring to the factual position, it is necessary to refer to the guidelines laid down by the Supreme Court in various decisions. In bhajan Lal’s case (supra), the Supreme Court has laid down the following guidelines for stalling the investigation by the Police in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India.

The relevant guidelines read as follows:

| "(1) Where the allegations made in the first
| information report or the complaint, even if they are
| taken at their face value and accepted in their
| entirety do not prima facie constitute any offence or
| make out a case against the accused.
|
| (2) Where the allegations in the first information
| report and other materials, if any, accompanying the
| FIR do not disclose a cognizable offence, justifying
| an investigation by police officers under Section
| 156(1) of the Code except under an order of a
| Magistrate within the purview of Section 155(2) of the
| Code.
|
| (3) Where the uncontroverted allegations made in the
| FIR or complaint and the evidence collected in support
| of the same do not disclose the commission of any
| offence and make out a case against the accused.
|
| (4) Where, the allegations in the FIR do not
| constitute a cognizable offence but constitute only a
| non-cognizable offence, no investigation is permitted
| by a police officer without an order of a Magistrate
| as contemplated under Section 155(2) of the Code.
|
| (5) Where the allegations made in the FIR or
| complaint are so absurd and inherently improbable on
| the basis of which no prudent person can ever reach a
| just conclusion that there is sufficient ground for
| proceeding against the accused.
|
| (6) Where there is an express legal bar engrafted in
| any of the provisions of the Code or the concerned Act
| ( under which a criminal proceeding is instituted) to
| the institution and continuance of the proceedings
| and/or where there is a specific provision in the Code
| or the concerned Act, providing efficacious redress
| for the grievance of the aggrieved party.
|
| (7) Where a criminal proceeding is manifestly
| attended with mala fide and/or where the proceeding is
| maliciously instituted with an ulterior motive for
| wreaking vengeance on the accused and with a view to
| spite him due to private and personal garudge."

13. The judgment in Bhajan Lal ‘s case (supra) was referred to and followed in P.P. Sharma ‘s case (supra) wherein it was held as follows:

| "23….. When the police report under Section 173
| Cr.PC has to go through the judicial scrutiny it is
| not open to the High Court to find fault with the same
| on the ground that certain documents were not taken
| into consideration by the Investigating Officer, We do
| not, therefore, agree with the High Court that the FIR
| and the investigation is vitiated because of a mala
| fide on the part of the informant and the
| Investigating Officer, We may, however, noticed the
| factual matrix on the basis of which the High Court
| has reached the findings of mala fide against the
| informant and the Investigating Officer. The High
| Court based the findings against the informant R.K.
| Singh…"
|
| "37. Undoubtedly, the arms of the High Court are long
| enough, when it exercises its prerogative
| discretionary power under Article 226 of the
| Constitution, to reach injustice wherever it is found
| in the judicial or quasi-judicial process of any Court
| or Tribunal or authority within its jurisdiction. But
| it is hedged with self-imposed limitations. When and
| under what circumstances would a High Court be
| justified to quash the charge-sheet even before
| cognizance of the offence was taken by the criminal
| Court is the crucial question, in particular on mala
| fides of the complainant or investigating officer and
| on merits."
|
| "41…. The primary duty of the police, thus is to
| collect and sift the evidence of the commission of the
| offence to find whether the accused committed the
| offence or has reason to believe to have committed the
| offence and the evidence available is-sufficicnt to
| prove the offence and to submit his report to the
| competent Magistrate to take cognizance of the offence."
|
| "42…. The Code gives to the police unfettered power
| to investigate all cases where they suspect a
| cognizable offence has been committed. In an
| appropriate case an aggrieved person can always seek a
| remedy by invoking the power of the High Court under
| Article 226 of the Constitution, If the Court could be
| convinced that the power of investigation has been
| exercised by a police officer mala fide, a mandamus
| can be issued restraining the investigator to misuse
| his legal powers. The same view was reiterated in
| State of Bihar v. JAC Saldhana, , wherein this Court
| held
|
| mat unless extra-ordinary cases of gross abuse of
| power by those in charge of the investigation is made
| out, the Court should be quite loath to interfere at
| the stage of investigation. A field of activity is
| reserved for police and the executive. This Court also
| noted that it is a clear case of usurpation of
| jurisdiction by the High Court, that vested in the
| Magistrate to take or not to take cognizance of the
| case on the material placed before him. The High Court
| committed grave error by making observations on
| seriously disputed questions of facts taking its cue
| from affidavit, which in such a situation hardly
| provides any reliable material. This Court also noted
| that the interference or direction, virtually amounts
| to a mandamus to close the case before the
| investigation is complete."
|
| "57…. The allegation of mala fide and bias are more
| often made easily, than proved. Investigation is a
| delicate painstaking and dextrous process. Ethical
| conduct is absolutely essential for investigative
| professionalism."

14. In R.D. Bajaj’s case (supra) also the Supreme Court reiterated the guidelines laid down in Bhajan Lal’s case (supra).

15. In M.M. Rajendran ‘s case (supra), the Supreme Court remitted the matter to the High Court for examining whether the complainant ex Jade make out any offence and whether the ingredients of the offence alleged against the accused are satisfied. The High Court was also directed to examine the question of limitation and sanction for’ prosecution raised by the complainant as it was not considered by the High Court.

16. In State of Himachal Pradesh v. Pirlhi Chand, the Supreme Court held as follows:

| "12….. the exercise of inherent power of the High
| Court is an exceptional one. Great care should be
| taken by the High Court before embarking to scrutinise
| the FIR/ Charge-sheet/complaint. In deciding whether
| the case is rarest of rare cases to scuttle the
| prosecution in its inception, it first has to get into
| the grip of the matter whether the allegations
| constitute the offence. It must be remembered that FIR
| is only an initiation to move the machinery and to
| investigate into cognizable offence. After the
| investigation is conducted (sic concluded) and the
| charge-sheet is laid, the prosecution produces the
| statements of the witnesses recorded under Section 161
| of the Code in support of the charge-sheet."
|
| "13….When the Court exercises its inherent power
| under Section 482, the prime consideration should only
| be whether the exercise of the power would advance the
| cause of justice or it would be an abuse of the
| process of the Court. When investigating officer
| spends considerable time to collect the evidence and
| places the charge-sheet before the Court, further
| action should not be short-circuited by resorting to
| exercise inherent power to quash the charge-sheet. The
| social stability and order requires to be regulated by
| proceeding against the offencer as it is an offence
| against the society as a whole. This cardinal
| principle should always be kept in mind before
| embarking upon exercising inherent power…..When the
| Legislature entrusts the power to the police officer
| to prevent organised commission of the offence or
| offences involving moral turpitude or crimes of grave
| nature and are entrusted with power to investigate
| into the crime in intractable terrains and secretive
| manner in concert, greater circumspection and care and
| caution should be borne in mind by the High Court when
| it exercises its inherent power. Otherwise, the social
| order and security would be put in jeopardy and to
| grave risk."

17. From the various decisions referred to above, what emerges is that in rarest of rare cases the extraordinary jurisdiction and power under Article 226 of the Constitution of India should be invoked and exercised. It is only in cases where the facts mentioned in the complaint or FIR do not disclose ex facie a cognizable offence or an offence; where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused; and, where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the power under Article 226 of the Constitution of India can be exercised to quash the investigation. The power under Article 226 of the Constitution of India is hedged with self-imposed limitations to quash a charge-sheet or an investigation even for cognizance of the offence taken by the Criminal Court. The Police lias the unfettered power to investigate all cases where they suspect a cognizable offence. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. Greater circumspection, care and caution should be borne in mind by the High Court when it exercises its inherent power under Article 226 of the Constitution to scuttle an investigation at its inception.

18. Let us examine the facts of the present case in the tight of the above principles. The FIR is dated 29-7-1995. The occurrence of offence according to the FIR is from 1993 and 11-5-1995 and continuing. The FIR is registered under Sections 498-A, 494, 468 and 120-BIPC. Let us now examine each offence registered under the FIR.

19. Section 498A relates to an offence of cruelty to the wife. It is not necessary to extract the Section in the context of the present case. The allegations of cruelty made in paragraphs 5 to 16 of the complaint deal with the acts of cruelty meted out to the 2nd respondent by the 1st petitioner in 1991-92 at Sweden. The 2nd respondent complains that there was a change in the attitude of the 1st petitioner as she belongs to Telangana and the 1st petitioner used to beat her and insult her and humiliate her. Paragraphs 17 and 18 deal with the cruelty meted out by the 1 st petitioner to the 2nd respondent in 1993 at Nellore. A reading of paragraphs 5 to 18 of the complaint makes it clear that the alleged acts of cruelty were either in Sweden or in Nellore. None of the alleged acts of cruelty took place within the jurisdiction of Manila Court at Hyderabad. Therefore, the Courts at Hyderabad or the Police in Hyderabad cannot register FIR and investigate into the allegations made in the complaint, even assuming that the allegations made in the above paragraphs viz., 5 to 18 of the Complaint amount to acts of cruelty.

20. The next offence alleged in the FIR is under Section 494 IPC which relates to the offence of bigamy. The question of bigamy arises if a person marries again while the first marriage is still subsisting and the 1st wife is living. If the first marriage of the 1st petitioner with the 2nd respondent is subsisting, then the 1st petitioner has committed an offence of bigamy falling under Section 494 IPC. Even then the next question that arises for consideration is whether the offence of bigamy is committed within the jurisdiction of the Mahila Court at Hyderabad and whether the Police at Hyderabad can register FIR and investigate after taking cognizance of the offence. The undisputed fact is there was a divorce and a decree of divorce was passed by the District Court of Nacka at Sweden. The 2nd respondent says in the complaint that the 1st petitioner forged his signature and managed to get the decree of divorce from the Court. At this stage it is necessary to refer to the decree of divorce granted by the Swiss Court. It says "Defendant – Indira Tirunagaru – Solicitor and assistance according to legal aid: Bachelor of Law Abdel-Hay Alami." The gist of the decree reads as follows:

| "…. Venkateshwarlu Tirunagaru applied to the
| district Court for dissolution of marriage. Indira
| Tirunagaru opposed the claim. Both of them together
| have children under 16 years of age, so therefore they
| were granted time for consideration. After the time
| for consideration Venkateshwarlu Tirunagaru claimed
| for the verdict on dissolution of the marriage to be
| informed. Indira Tirunagaru consented the claim on
| divorce and claimed that the District Court should
| grant her the custody of their children, Santosh and
| Sanjeev, and that the District Court should under an
| obligation the Venkateshwarlu Tirunagaru shall pay an
| up keep allowance at 2500 kr for each child and that
| the District Court should grant her the right to stay
| in the apartment unless and until the joint property
| of the husband and wife is divided."

It further says:

| "Latest by the 23 November 1994 a written appeal
| should be sent to the District Court. It should be
| addressed to Seva Court of appeal…"

From a reading of the judgment of the Swiss Court, it is clear that the 2nd respondent did not give her consent at the first instance, but later she consented on the divorce, perhaps for the reason that the custody of the children were given to her. One admitted fact is that the 2nd respondent did not prefer any appeal against the said Judgment. If she is really aggrieved by the Judgment, her remedy is by way of an appeal. As already referred to above, the allegations made in the complaint are contrary and inconsistent with the facts stated in the decree of divorce granted by the District Court, Nacka at Sweden. The 2nd respondent did not choose to appear in spite of notice and defend her case in this Court. It is not her case that the decree of the Swiss Court is not binding on the Courts in India. On the other hand, under Section 13 of the CPC the Judgment of the Foreign Court is binding on the Courts in India except under certain circumstances. The averments made in the complaint prima facie appear to be false. Therefore, it cannot be said that there is no divorce between the 1st petitioner and the 2nd respondent, especially in a case where the 2nd respondent has not preferred any appeal which fact is admitted in the counter affidavit filed by the 3rd and 4th respondents though the 2nd respondent did not choose to file any counter affidavit denying the averments made by the 1st petitioner in the affidavit. Since there is no counter to the affidavit filed by the petitioner stating that there is no divorce between the 1st petitioner and the 2nd respondent by a valid decree of divorce by the Swiss Court, the fact that there is a divorce between them is admitted. When once the divorce is admitted between the 1st petitioner and the 2nd respondent, after the expiry of the period for preferring an appeal, the 1st petitioner is entitled to marry and, therefore, it cannot be said that the 2nd marriage of the 1st petitioner with the 6th petitioner amounts to a bigamous marriage attracting Section 494 IPC. Further, even assuming that it mounts to bigamous marriage, the marriage was performed at Nellore. Therefore, the Manila Court at Hyderabad has no jurisdiction and the Police in Hyderabad are not competent to investigate into the alleged offence of bigamy not only on the ground of jurisdiction, but also on account of absence of prima facie case.

21. The next offence alleged is Section 468 IPC which relates to forgery. The allegations in support of this offence read as follows:

"The complainant further submits that she also has come to find that Al while in India had forged her signatures on an application form and submitted the same to the Branch Manager-State Bank of Hyderabad, Gunfoundry branch, Hyderabad, and also to the Grindlays Bank, Abids, Hyderabad, where she was having a joint account. In this regard, the conduct of A1 is sheer criminal in nature and he is liable for punishment under Sections 468 and 471 IPC."

In support of the above allegation in the complaint, the 2nd respondent enclosed a fax message dated 27-5-1992 sent from Sweden to the State Bank of Hyderabad, NRI Cell, A reading of the fax message shows that the fax message was issued from Sweden and three years have elapsed from the date of the fax viz., 29-7-1992 to the date of the complaint viz., 29-7-1995. Further she did not choose to dispute her signature immediately in 1992. It is only after the divorce proceedings and in the complaint for the first time she made this allegation evidently to take revenge against the 1st petitioner. Therefore, it is not only barred by limitation but since it eminates from Sweden, the Mahila Court at Hyderabad cannot direct the Police to investigate into this offence as the offence has not been committed within its jurisdiction and the Police do not get the jurisdiction to investigate into the offence.

22. From the above it follows that all the three offences alleged against the 1st petitioner are not committed within the jurisdiction of the Mahila Court at Hyderabad and consequently the Mahila Court at Hyderabad has no jurisdiction to direct the Police to investigate into the said offences. It also follows from the above that the facts disclosed in the complaint ex facie do not establish any of the offences registered under the FIR. One of the guidelines laid down by the Supreme Court in the Bhajan Lal’s case (supra) is if the facts do not disclose ex facie a cognizable offence this Court can interfere under Article 226 of the Constitution of India and stall the investigation. Applying the above principle, it is a fit case where a direction should be issued restraining the Police authorities from proceeding with the investigation.

23. Further, though notice was issued to the 2nd respondent, she has not choosen to appear either in persons or through an Advocate. On the other hand, her brother-in-law and sister viz., respondents 3 and 4 appeared through an Advocate and filed a counter affidavit. The 2nd respondent did not choose to file a counter ‘affidavit. The fact that she did not file any appeal against the judgment/decree of divorce of the Swiss Court is admitted in the counter affidavit filed by the 3rd and 4th respondents. In the affidavit filed by the 1st petitioner it is stated that the 3rd and 4th respondents accompanied the 2nd respondent to Sweden on the first occasion and the 1st petitioner got the son of the 3rd and 4th respondents educated. The above admitted facts indicate that the complaint is filed not at the instance of the 2nd respondent, but at the instance of the 4th respondent. At any rate, it indicates that the complaint is filed at the instance of 3rd and 4th respondents and that the 2nd respondent is not very serious in prosecuting the matter. The above facts establish that the complaint filed is not bonafide.

24. In the light of the view which I have expressed, it is not necessary to consider whether the complaint is validly registered without obtaining the consent of the Central Government under Section 188 Cr.PC.

25. In view of the above, the Writ Petition is allowed and the proceedings in CC No.482 of 1995 before the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad, are quashed. No costs.