BOLORAM BARUATI Vs. SURJYA BARUATI
HIGH COURT OF GAUHATI
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P.K.GOSWAMI, J. -
(1.)THIS criminal revision is directed against the judgment of conviction under Section 494 Indian Penal Code and sentence of six months' rigorous imprisonment, passed by the learned Magistrate First Class, Dibrugarh and affirmed by the learned Sessions Judge, Lakhimpur.
(2.)THE prosecution case is that the petitioner married the Opposite Party, Mst. Surjya Baruati, on 14th September, 1962 according to Hindu rites and they were living as husband and wife for some time. A female child was born at wedlock. Thereafter, however, the petitioner deserted Mst. Surjya and married one Manorama Konwar on 8th September, 1965. On these allegations the petitioner was charged under Section 494 Indian Penal Code and convicted and sentenced as stated above.
The only point which the learned Counsel for the petitioner urges before me is that the second marriage with Mst. Manorama has not been established by the Prosecution to have been solemnised as provided for under the law and that the conviction under Section 494 Indian Penal Code is, therefore, not tenable. Section 494 Indian Penal Code is in the following terms:
494. 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. This offence, which is known in English law as bigamy, is directed against the second marriage. The second marriage, therefore, must be a legally valid marriage so as to come within the mischief of Section 494 Indian Penal Code. In order to appreciate whether the second marriage is void under the law, since the parties are admittedly Hindus, we have to refer to Section 17 of the Hindu Marriage Act, 1955, which is as follows: 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 provisions of Sections 494 and 495 of the Indian Penal Code (Act 45 of I860) shall apply accordingly.
(3.)SECTION 17 pointedly refers to solemnization of marriage after the commencement of the Act. Prosecution, therefore, is under an obligation to satisfactorily establish by evidence that the second marriage with Manorama has been solemnized in accordance with law or custom which is applicable to the parties, The parties in this case claim to be Ahoms and they also admit that the form of their marriage is known as 'Saklong'. In dealing with Section 494, Indian Penal Code, the Supreme Court in the case of Bhaurao Shankar v. State of Maharashtra AIR 1965 SC 1564, has observed as follows:
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