THAMBAYI Vs. KOTTAN
LAWS(KER)-1963-12-6
HIGH COURT OF KERALA
Decided on December 29,1963

THAMBAYI Appellant
VERSUS
KOTTAN Respondents


Referred Judgements :-

RAM BARAN UPADHIYA VS. SITAL PATHAK [REFERRED TO]
MOTI VS. BENI [REFERRED TO]
MUNSHI RAM VS. EMPEROR [REFERRED TO]



Cited Judgements :-

VILASINI VS. PRASANNA [LAWS(KER)-2020-5-63] [REFERRED TO]


JUDGEMENT

- (1.)The respondent complained to the Sub Divisional Magistrate, Hosdrug that the first petitioner (first accused) Vanisthy Thambayi whom he had married some three years ago and who was living with him as his wife was taken away to her parents house and given in marriage a second time. He charged his wife with bigamy and her bride groom, her parents and her new father inlaw with abetment of the crime. The defence case was one of total denial. According to the accused Thambayi a young girl of 13 was never married to anyone. The Trial Court found that both marriages were proved and accordingly convicted Thambayi under S.494 I.P.C. and her parents under S.494 read with S.109. Sankaran her second husband and his father were acquitted on the ground that they might have been unaware of the subsisting marriage. Thambayi was released under S.25(1)(a) of the Madras Children Act after admonition, accused 3 was sentenced to simple imprisonment for three months and to pay a fine of Rs. 100/-. In appeal while confirming the conviction the learned Sessions Judge altered the sentence of imprisonment in respect of accused 3 to a fine of Rs. 200. As a sentence of imprisonment is compulsory in the case of bigamy notice was issued from this Court to accused 3 and 4 to show cause why the sentence of fine may not be altered into one of imprisonment. As this gave them an opportunity to challenge the correctness of the conviction on the facts the entire evidence was considered.
(2.)The first marriage is proved by the evidence of Pws. 1 to 3 and the subsequent one by witnesses 4 and 5. The first marriage took place on the 20th of Vrischigom 1136 in the house of the third accused in accordance with the customary ceremonies. The complainant described in detail the ceremonies. His evidence is fully corroborated by Pw. 2 who was the Moonnaman & Pw. 3 one of the eleven who formed the Bridge grooms party. No circumstance is brought out to doubt the veracity of their evidence. It is seen from the judgment that the first marriage was not challenged at all before the appellate court. Pws. 4 and 5 have given convincing evidence about the second marriage. Both of them are neighbours of the third accused who were invited by accused 3 for the marriage. They give a consistent version .of the marriage ceremonies. Their evidence is attacked art the ground that they had worked with Pw. 1 for tarring a road at Hosdrug. They as well as several others were employed by the same contractor for the work and that is no reason why they should give false evidence to oblige a coworker. Both the marriages are well proved.
(3.)The only other ground urged before us is that the girl being under aged, her marriage to the complainant was void and as such she does not commit bigamy in marrying second time.
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