Decided on April 06,1962

Sivarama Suppu And Another Appellant
State And Another Respondents


P. Govinda Menon, J. - (1.) IN this case the two petitioners who were accused 1 and 5 in C.C. 45 of 1960 on the file of the District Magistrate of Trivandrum were convicted, the first accused under section 494 I.P.C. and the 5th accused of having abetted the offence under section 494 read with section 114 I.P.C. In appeal, the learned Sessions Judge having confirmed the conviction, they have come in revision. The case was that the first accused married the second accused while his first marriage with the complainant was subsisting. That marriage is amply proved and is not disputed. The plea of the accused was that there was no second marriage as spoken to by the prosecution witnesses. In support of the prosecution case P.Ws. 2, 3, 9 and 10 who were present and who witnessed the marriage and P.Ws. 7 and 8 who officiated at the marriage were examined. The learned District Magistrate was not impressed with the evidence of P.Ws. 2, 3, 9 and 10 and did not place any reliance on their testimony. P.W. 7 is the Sreekariam of the Shankumugham temple where the second marriage is stated to have taken place on 7th September 1960. He has stated that several such marriages are solemnised in the temple for the last so many years and that the ceremony consisted of the first accused tying a Thali around the neck of the second accused and the spouses garlanding each other. It is stated that before the marriage, the Thali and the garland were sanctified by performing pooja by P.W. 8 who is the Santhikaran. P.W. 7's evidence is corroborated by the evidence of P.W. 8 who was also present at the marriage ceremony. Both these witnesses were not questioned whether Saptapadi is an essential prerequisite of a valid marriage and whether that was done in the case of other marriages similarly performed at the temple.
(2.) THERE is then the application Ext. P. 4 presented by the fifth accused before the Superintendent of the Devaswom for sanction to have the marriage performed. Ext. P. 5 is the receipt for the remittance of the required fees. Ext. P. 6 is the marriage register and Ext. P. 6(a) is the relevant entry evidencing that the marriage had been duly performed. P.W. 7 has sworn that accused 1 and 2 are known to him before and they subscribed their signatures in Ext. P. 6(a) in his presence. The courts below have believed the evidence of these witnesses. I have also scrutinised their evidence and I find that they are thoroughly disinterested witnesses with no axe to grind against the accused and that their evidence could with safety be accepted. The courts below have therefore rightly held that the marriage between accused 1 and 2 was in fact performed in the temple on 7th September 1960. The next question is whether the marriage so performed would make the accused liable for the offence of bigamy under Section 494 I.P.C. Section 17 of the Hindu Marriage Act (Central Act XXV of 1955) - -hereinafter referred to as the Act - -treats the bigamous marriage as void and prescribes the punishment for it. Section 17 reads: Any marriage between two Hindus solemnised 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 (XLV of 1860), shall apply accordingly.
(3.) THOUGH under section 32(5) of the Indian Evidence Act, the statement of a person who had special means of knowledge is relevant in proof of the existence of any relationship by blood, marriage or adoption and section 50 has rendered that opinion as to relationship admissible, the proviso to section 50 makes such opinion insufficient to prove a marriage in proceedings under the Indian Divorce Act or in prosecutions under sections 494, 495, 497 or 498 of Indian Penal Code that would mean that since the second marriage is an essential ingredient of the offence of bigamy, that marriage has to be clearly proved by the prosecution. The question is as to what am aunts to the proof of such marriage and when it could be said that there is no proof of marriage.;

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