Decided on June 24,2013

GANGA DEVI Appellant
State of Uttaranchal and another Respondents


- (1.) Present criminal revision was preferred by the revisionist against the judgment and order dated 16.05.2006, passed by learned Sessions Judge, Nainital, in criminal appeal no. 06 of 2006, captioned as Kishnanand Kudai vs State of Uttaranchal and Smt. Ganga Devi, wherein learned Sessions Judge allowed the appeal of the appellant and set aside the judgment and order dated 24.01.2006, whereby the appellant (present respondent no. 2) was convicted for the offence punishable under Section 494 of IPC and was sentenced to undergo simple imprisonment for a period of six months alongwith a fine of Rs. 2,000/-.
(2.) Upon a criminal complaint case filed by Smt. Ganga Devi against Kishnanand Kudai, Khimanand Kudai, Smt. Motima Devi and Harish Chandra Kudai, the accused persons except Kishnanand, were acquitted of the charges under Sections 498A, 494 of IPC and under Section 3/4 of the Dowry Prohibition Act levelled against them. Accused Kishnanand was although acquitted under Section 498A of IPC and Section 3/4 of the Dowry Prohibition Act, but was convicted under Section 494 of IPC and was sentenced appropriately. Aggrieved against said order, an appeal was preferred, which was decided on 16.05.2006. The appeal was allowed. Kishnanand was exonerated of the charge(s) levelled against him. Aggrieved against the impugned order dated 16.05.2006, present criminal revision was preferred. Learned trial court i.e. Judicial Magistrate, Nainital, convicted Kishnanand of the offence punishable under Section 494 of IPC on the basis of two documents i.e. voter list and the extract of the family register. Learned lower appellate court relying upon the ruling of Santi Deb Berma vs Smt. Kanchan Prava Devi, 1991 AIR(SC) 816, held that bigamy was not proved against Kishnanand. It was held by the Hon'ble Apex Court in Smt. Priya Bala Ghosh vs Suresh Chandra Ghosh, 1971 AIR(SC) 1153, that the Homa and Saptapadi are the essential rights for a marriage according to the law governing the parties. There was no evidence in the case of Smt. Priya Bala Ghosh as also in the instant case, that these two essential ceremonies have been performed when the accused is stated to have married another woman.
(3.) It was observed by the Hon'ble Supreme Court in Bhaurao Shankar Lokhande and another vs The state of Maharashtra and another, 1965 AIR(SC) 1564, that in order to prove bigamy, proof of solemnization of second marriage in accordance with personal law is necessary. Mere living together as husband and wife is not sufficient. It was reiterated by the Hon'ble Apex Court in Santi Deb Berma vs Smt. Kanchan Prava Devi that the performance of Saptapadi is an essential ingredient to show that the accused entered into second marriage. The alleged marriage between accused and the second wife, in defiance of the law applicable to the parties, was held to be a marriage not valid in law. The ceremony of Saptapadi is one of the essential requirements for constituting a valid marriage, which evidence was conspicuous by its absence in the present case. There is no illegality in the judgment of the lower appellate court.;

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