TRAILOKYA MOHAN NATH Vs. STATE
HIGH COURT OF GAUHATI
Trailokya Mohan Nath
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C.SANJEEVA ROW NAYUDU, J. -
(1.) THIS revision petition is directed against a conviction of the petitioner Trailokya Mohan Nath on a charge under Section 494, Indian Penal Code and a sentence of three months' rigorous imprisonment and a fine of Rs. 100, in default S.I. for one and a half months, he having performed a second marriage with Sefali Debi when his wife Subarna Bala Nath is living. Sefali Debi was also an accused in the case, but she has been acquitted by the learned Sessions Judge.
(2.) THE case of the prosecution was that the petitioner having already a wife living by name Subarna Bala Nath, married a second time one Sefali Debi and thus committed the offence of bigamy punishable under the Indian Penal Code read with the provisions of the Hindu Marriage Act, 1955.
The only point which has been seriously pressed before us by Mr. Chaudhuri, the learned Counsel for the petitioner, is that unless it in established that the second marriage has been duly and properly solemnised in accordance with the customs applicable to the parties, the offence under Section 494, Indian Penal Code, cannot be said to have been established. He points out that as the legality of the conviction rests on the validity of the second marriage and as the same has not been established in this case, the petitioner is entitled to an acquittal.
(3.) IT is true that under the provisions of the Hindu Marriage Act, one of the conditions of a valid Hindu marriage is that it should be solemnised between two Hindus, neither party having a spouse living at the time. Section 17 of the Hindu Marriage Act provides: 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 (45 of 1860), shall apply accordingly. The relevant provision of Section 494, Indian Penal Code, provides:
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. ;
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