A.S.BAINS, J. - (1.) MOHAN Lal petitioner has filed this revision against the judgment dated 27th September, 1974, passed by Shri Avtar Singh Gill, Additional Sessionss Judge, Ludhiana, by which his appeal against the judgment of judicial Magistrate 1st Class, Ludhiana dated 26th March, 1974 convicting and sentencing him under section 494, Indian Penal Code to undergo two years rigorous imprisonment and to pay a fine of Rs. 500/ - or in default of payment of fine, to further undergo six months rigorous imprisonment, has been dismissed.
(2.) THE complainant's case as set up by Balbir Kaur (P. W. 4) at the trial as under: It is alleged that she was married to Mohan Lal petitioner 1962 at Dashmesh Nagar, Ludhiana, according to Hindu customs and rites, that a daughter was born out of the wedlock who died immediately after birth and two more children were born who are still living ; that the petitioner started demanding more dowry and started maltreating her; that he married second time with Smt. Gurdial Kaur village Ballowal it which fact she came to know on 4th March,1970 through one Kartar Singh of village Jamalpur. She produced Kartar Singh (P.W. 1) Bachn. (P.W. 2) Bant Singh (P. W. 3) and Nikka Singh Chowkidar (P. W. and herself appeared as P. W. 4 in support of her allegation These witnesses supported her version and deposed that petitioner's marriage with Gurdial Kaur of village Ballowal took place in the year 1968 and that a son named Gurmail Singh was born to Gurdial Kaur co -accused on 16th July, 1969 from the loins of Mohan Lal petitioner. Originally, the complaint was filed against six persons, namely, Mohan Lal, petitioner and his co -accused. Faqir Chand, Amar Kaur, Gurdial Kaur, Mst. Shanti and Rant Lok. The co -accused were, however, acquitted by the learned Magistrate, but the petitioner was convicted and sentenced as aforesaid. The petitioner when examined under section 342, Criminal Procedure Code, had denied the allegations made in the complaint.
(3.) MR . S. S. Kang, learned counsel for the petitioner, canvassed that the parties were Hindus and that the complainant has failed to prove that the alleged second marriage of the petitioner with Smt. Gurdial Kaur was a validity solemnised marriage in accordance with the Hindu customs and rites. His precise contention is that the parties are Hindus and their first marriage according to the allegations in the complaint was performed according to Hindu customs and rites ; that the evidence, which was adduced in this case, disclosed that the marriage between the petitioner and Smt. Gurdial Kaur was performed in the presence of Shri Guru Granth Sahib according to the Anand Karaj ceremony of the Sikhs and hence it cannot be called as a valid marriage in the eye of law and consequently, the conviction under section 494, Indian Penal Code, is bad. I have gone through the evidence and perused the record. According to the complainant Balbir Kaur, herself, their first marriage was performed according to Hindu Customs and rites and the second marriage of Mohan Lal petitioner with Smt. Gurdial Kaur was performed according to Anand Karaj ceremony of the Sikhs. To the same effect is the evidence of other witnesses. There is no dispute about these facts. If this is so then the second marriage between the petitioner and Smt. Gurdial Kaur cannot be held to be validly performed in the eye of law. It may be that the petitioner and Smt. Gurdial Kaur are living as husband and wile and to the out -side world also they seem to be living as husband and wife. But for making them liable under the law the prosecution has to prove that the second marriage was validly performed. Second marriage is held void under section 17 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) which is in the following terms: "17' Punishment of bigamy : - 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 shall apply accordingly." It was for the first time after the passage of the Hindu Marriage Act in the year 1955 that and marriage between two Hindus solemnized after the commencement of the Act was declared void if at the date of such marriage either party had a husband or wife living and the provisions of sections 494 and 495 if the Indian Penal Codes' were made applicable. As observed earlier, in the present case. Mohan Lal petitioner and the complainant were Hindus and their marriage was solemnised in accordance with the Hindu customs and rites. The evidence regarding second marriage shows that Mohan Lal petitioner had contracted marriage with Smt. Gurdial Kaur in accordance with Anaiid Karaj ceremony of the Sikhs in Ravinaer Kumar v. Smt. Kamal Kanta, 1976 Cur, L. J. (Civil) 327, it was held by this Court that if the marriage between the two parties not belonging to Sikh faith is performed in accordance with the Anand Karaj ceremony is not a validly solemnised ceremony. In the present case also, there is no assertion by the complainant that the parties to the second marriage are Sikhs. On the other and, the evidence is that their first marriage was performed in accordance with Hindu rites and customs. In the absence of any assertion that the petitioner and Smt. Gurdial Kaur are Sikhs, it cannot be held that their marriage, which was performed according to the Anand Karaj of the Sikhs, is a validly solemnised marriage. Although Ravinder Kumar's case (supra) was not under section 494, Indian Penal Code, but it was under section 9 of the Hindu Marriage, Act, but the principle of law as laid down therein is fully applicable to the facts of the present case. In Bhaurao Shankar Lokhande and another v. State of Maharashtra and another, A. I. R. 1965 S. C. 1565, it was observed by the their Lordships as under : - "Section 17 of the Hindu Marriage Act makes the marriage between two Hindus void if two conditions are satisfied : (i) the marriage is solemnised after the commencement of the Act; (ii) at the date of such marriage either party had a spouse living. The words 'solemnised' means, in connection with a marriage 'to celebrate the marriage with proper ceremonies and in due form'. It follows therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and in due form' it cannot be said to be 'solemnised'. It is therefore, essential, for the purpose of section 17 of the Act, that the marriage to which section 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established customs." From the principle of law as laid down by their Lordships of the Supreme Court it is plain that a person can be held liable for bigamy only if it is proved that the second marriage was validly performed. Their Lordships of the Supreme Court further observed as under: - "Prima facie, the expression' 'whoever...... marries' in section 494, Indian Penal Code, must mean 'whoever...... marries validly' or 'whoever...... marries and whose marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage, in the eye of law. The bare fact of a man and a woman living as husband and wife does not at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife." It was held by their Lordships that since the subsequent marriage was not validly performed, the conviction under section 494, Indian Penal Code, as recorded by the High Court could not be maintained and consequently, it accepted the appeal and set aside the conviction under Section 494 Indian Penal Code. In the instant case also, since the second marriage between the petitioner and Smt. 'Gurdial Kaur was not valid, the conviction of the petitioner under section 494 Indian Penal Code, cannot be maintained. There is no representation on behalf of respondent Nos. I and 2 inspite of service.;