Decided on October 30,1973


Referred Judgements :-



M.U.SHAH - (1.)This is an appeal by the State of Gujarat against the acquittal of respondent-accused named one Batuk Hiralal Mehta of Bombay for the offences punishable under secs. 493 and 496 of the Indian Penal Code for which he was charged and tried by the learned Sessions Judge Bulsar at Navsari. The respondent who will hereafter be referred to as the accused was committed to the Court of Sessions by the learned Judicial Magistrate First Class Pardi on January 7 1972 in Criminal Case No. 826 of 1970 to stand his trial before the Court of Sessions for the said offences.
(2.)The complaint was filed by the complainant one Nalini Baburao Kadam of Bombay who was aged about 24 on April 10 1970 The complainants case was that she was married to one Baburao Jenoba Kadam of Poona on June 22 1966 Said Kadam was addicted to drinking and gambling and squandered away his earnings. He resented her attempts to persuade him to give up his bad habits and on the contrary assaulted her and drove her away within two weeks of her marriage with him. She then went to Bombay and stayed with her widowed mother and two brothers named Vijay and Pramod. Her husband Kadam had published in the issue of August 12 1967 of Marathi daily paper Prabhat published in Poona a public notice Ex. 11 referred to by her in the complaint as a declaration stating that he was married with Nalini on 11-6-1966 but as Nalini had no desire to consumate the marriage with him she did not come at all to Poona from that day and on the contrary talked about the release from marriage; he was releasing her from marital obligations and it was customary in their caste to give divorce. According to her further say in the complaint she then thought of finding out some job or taking up training for some vocational line. She was introduced to one nurse who knew the accused and who took her to the accused in or about the month of April 1968 and acquainted him with her circumstances and aspirations. About that time she had filed an application under sec. 488 Criminal Procedure Code against Kadam for separate maintenance which the accused had advised her to withdraw and asked her to remain absent and the application came to be dismissed as she remained absent on the day of hearing. The accused then advised her to learn Marathi typing and appear at the S.S.C. examination so that she can take up a course of nursing. She agreed and the accused made all arrangements for her to join the typing-class and the S.S.C. classes. The accused purchased books and other necessary things for her study. The accused got her name admitted as Nalini B. Jadav being her maiden name telling her that as her husband had already declared separation that was the proper way. The accused escorted her occasionally in his car to Manjrekar classes for S.S.C. to which she was admitted some time in the month of April 1968. She appeared in the S.S.C. examination in March 1969 but failed. The accused then told her that he had built a house at Vapi where she should stay and suggested her to marry him. She asked for some time to consult her people meaning her brothers and mother who had by that time come to to know about their acquaintance. According to her her brothers agreed to the proposal and she had found the accused to be a kindly person to live with as husband. The accused then took her and her brother Pramod to Vapi situated in the State of Gujarat by the Surat Express an evening train which runs between Bombay and Surat on June 21 1969 In paragraph 9 of her complaint her averment is that on that night at Vapi the accused and herself went through a form of marriage and they garlanded each other. The accused assured her as a solicitor that the ceremonies performed were sufficient to constitute a valid marriage. Her brother Pramod was present. On the same night. he (the accused) cohabited with her at Vapi. In paragraph 10 she says the returned to Bombay with her brother and again on July 21 1969 the accused took her to Vapi and cohabited with her at Vapi where she continued to stay thereafter. In paragraph 11 she says that she went to Bombay to appear at the S.S.C. examination to be held in October 1969 but the accused prevented her from appearing at the same examination and took her to a hotel on October 21 1969 saying that it was their marriage night and they should celebrate their marriage-night by cohabiting together. In paragraph 12 of her complaint she says that during her stay at Vapi she found one lady named Padmini visiting the accused at Vapi and going to Bombay with him. Their movements created a doubt in her mind about the relationship of Padmini with the accused. On inquiry the accused evaded a straight reply saying that she was his daughter. She learnt in December 1969 that Padmini was his wife. She has stated that she relied upon the tape-recorded conversation between the accused and the said Padmini which was in her possession and which she will produce at the proper time and place. (She has not produced it in her evidence). In paragraph 13 of her complaint she says that in February 1970 the accused had come with a document to be signed by her Padmini and her mother. It was found to be document between Padmini referred to as an employer and the complainant Nalini referred to as an employee and she refused to sign it. She has stated that she would rely upon the photo stat copy of the writing (copy Ex. 16). Ultimately she left Vapi some time in February 1970 and came to Bombay where she met the accused for his final decision regarding her and Padmini but the accused denied any such relationship with Padmini and promised that he would make a will bequeathing all his assets to her and told her that as Padmini had given him a notice for maintenance as a wife and as he had denied the same he wanted her to help him in the proceedings that Padmini may take against him. It was about this time that she had approached one advocate Mr. Barot in Bombay and acting under his advice she had a talk with the accused on the evening of March 18 1970 while driving in a motor-car with him from the Gateway of India to Colaba Sea Face in Bombay which was tape-recorded by her in the folds of her Sari. She then again consulted her advocate acquainted him with all the facts and was told by her advocate that she was duped. On these facts as stated in the complaint Ex. 19 she submitted that the accused had by deceit made her believe that she was married to the accused on June 21 1969 by going through a marriage ceremony which the accused fully knew did not constitute a lawfully valid marriage and did cohabit and had sexual intercourse with her at Vapi on diverse occasions and elsewhere and thereby committed the offence punishable under sec. 493 Indian Penal Code and secondly that the accused dishonestly and with fraudulent intention want through a marriage ceremony with her with the full knowledge that he was not lawfully married to her but making her believe that it was a valid marriage and thereby committed the offence punishable under sec. 496 Indian Penal Code. It was on the facts stated in the complaint (Ex. 19) that the process was issued against the accused by the learned Judicial Magistrate who had on completion of the enquiry before him committed the accused to the Court of Sessions to stand his trial for the offences punishable under secs. 493 and 496 of the Indian Penal Code. [ The Hobble Court after describing the facts and the background of the case further observed: ]
(3.)Now the gravamen of the charge is that the accused who was a Solicitor and who was a Chief Labour Officer in the service of the Bombay Port Trust and had attained the age of 58 years at the time had induced complainant Nalini who was 24 by performing a form of marriage at Vapi on the night of June 91 1969 to become his wife and Nalini believed that she had become the wife of the accused on the relevant night at Vapi and it was under that belief that the accused induced her to cohabit with him and she surrendered her body to the accused. In order to convict the accused of this charge the evidence must be sufficiently clear to show that the accused had deceitfully induced a belief of lawful marriage in complainant Nalini and it was in such belief that she had cohabited with him on the relevant night at Vapi. It may be recalled that Nalini was a woman married to one Kadam according to the Hindu religious ceremonies some time in the year 1966. She was a mature woman of 24 years born and brought up in Bombay and belonged to a Kshatriya Maratha community. She had either left or deserted her husband Kadam or was driven out of the marital home at Poona only two weeks after her marriage with Kadam which was celebrated on June 22 1966 according to the Hindu religious rites referred to earlier. She had then returned to her mothers house in Bombay. She had two brothers Vijay and Pramod and a maternal uncle besides her widowed mother to look to for guidance. She wanted some avocation in life to keep her busy and to maintain herself. She had filed applications for maintenance against her husband Kadam and this was under the advice of her Advocates M/s. Chile and Gupte and appears to have been conscious of her legal rights and was out to secure her monetary position in life. This was the type of the woman who appears to have a mature thinking and who came from the humble strata of society in the sense of worldly possessions and who has impressed the learned Sessions Judge from his observation of her demeanour while in the witness-box as an intelligent woman whose evidence has to be examined in order to bring home the built to the accused person. This is not an ordinary charge of adulterly which we are called upon to examine. Nalinis husband Kadam is not the complainant. This is an unusual type of case in which a person is hauled up for the alleged offences punishable under secs. 493 and 496 of the Indian Penal Code by the complainant woman Nalini who was married and whose husband has not come out with a complaint against the accused but had filed a criminal complaint against Nalini and her brother Pramod subsequently under sec. 494 read with sec. 114 of the Indian Penal Code which came to be dismissed because the complainant husband had remained absent. Nalini in her complaint Ex. 19 which we have referred to earlier while making out a statement of the case does not refer to any particular form of marriage having been performed at Vapi. The complaint was drafted by a lawyer and this was after the lawyer had advised her to have a tape-recorded conversation between herself and the accused and which was recorded as planned. In paragraph 9 of the complaint what is stated merely is that the accused and herself went through a form of marriage and they garlanded each other. The form in which the marriage was per. formed appears to have been conveniently kept vague. There is no mention in the complaint that the garlanding was done before the photo of Lord Rama or that they had bowed before the portrait of Lord Rama. But in her evidence Nalini has referred to the form of marriage they went through as Gandharva marriage what she calls a Gandharva marriage has been referred to in paragraph 4 of her evidence Ex. 10. According to her on 21-6-1969 the accused her bother Pramod and she herself went to the bungalow of the accused at Vapi from the Vapi railway station in the evening where Pramod had met them. The accused then decided to perform the rites of marriage between 8. 30 P. M. to 9. 00 P. M. The accused lighted the Ghee lamp before the photograph of Lord Rama and both of them stood in front of that photograph. The accused then garlanded her and asked her to garland him again by the same garland. The accused gave her a golden chain as a `Mangalsutra. The accused then informed her that the marriage ceremony was over. Immediately a doubt was raised in her mind and she says she questioned the accused as to what was that sort of a marriage ceremony ? She says that the accused replied that it was a Gandharva ceremony of marriage and that as Dushyant and Shakuntala had contacted marriage in the same form there was no objection for them to undergo the same Crimean. She says she did not trust the accused when he spoke of the Gandharva ceremony. But the accused then told her that he was a Solicitor and that such marriage ceremony would lead to rightful marriage. She then trusted him. Such is the form of marriage which according to Nalini was undergone and such was the immediate reaction of Nalini a shrewd married woman that she was who had deserted her husband Kadam and who in spite of Kadams public notice Ex. 11 has taken out maintenance proceedings against Kadam. It is difficult to accept her version that a simple answer from the accused resolved the doubt of one who knew what are the valid forms of a Hindu marriage. She then says that Pramod who was present at the ceremony had there after gone out of the house of the accused to 8 to Bombay. She says she then surrendered her body to the accused. It is difficult to accept that such an intelligent and shrewd woman that the complainant Nalini was and one who had the benefit of the advice of her two brothers a mother and a maternal uncle besides of some advocates earlier could have her doubt about the validity of the form of marriage resolved simply because the accused told her that it was a Gandharva form of ceremony as Dushyant and Shakuntala had contacted the marriage. It is too naive an explanation and a story to be true. Again it is amusing to hear Nalini say that she was being compared to Shakuntala and the accused to Dushyant and the ceremony as that in Gandharva marriage and that she simply accepted the say of the accused. Such all intelligent woman that the complainant was could certainly be erupted to have known what a Gandharva form of marriage is as also whether they filled in the character of Shakuntala and Dushyant and whether the ceremony of garlanding each other before the photograph of Lord Rama performed if any constituted Gandharva marriage. She well knew what was the Hindu marriage ceremony to be performed. She had married Kadam as aforesaid according to the strict Hindu religious ceremonies. She says that she herself felt doubt about the validity of the marriage. Even then she says she simply accepted the advice of the accused. It is difficult to believe that a woman born and brought up in the aforesaid circumstances in a city like Bombay and to whom the advice of her advocates was freely available at all times and so also of her maternal uncle would be beguiled away by such an advice if any that was given by the accused as Nalini wants us to believe. We must say that say are not convinced about Nalinis version on the point. If is too good to be true.

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