- (1.) THIS is a revision petition by Bishna, Birja and Mst. Gattu against the judgment of the Additional Sessions Judge, Baran of the 28th of May, 1953, confirming on appeal the decision of the Extra Magistrate, Baran, of the 26th of February, 1953, convicting Mst. Gattu for the offence under sec. 494 I. P. C. and the other two accused Bishna and Birja under sec. 494 read with sec. 109 I. P. C. and sentencing them to 8 months' R. I. and a fine of Rs. 100/- each or in default 2 months' further R. I.
(2.) THIS case was instituted on a complaint by Nand Kishore who alleged that he was the husband of Mst. Gattu. His case was that about 18 months before the institution of this case Mst. Gattu went to her father's house and there she was married to Bishna. Bishna, it was said, know that Mst Gattu was the married wife of the complainant. The defence was that Nand Kishore had divorced Mst. Gattu and her re-marriage was, therefore, valid according to the custom of the community. Marriage of Mst. Gattu with Nand Kishore was not disputed. Evidence was led on behalf of the accused Bishna that a few persons of the community approached Nand Kishore to take away Mst. Gattu from her father's house but he replied by saying that he had divorced her and that he would not like to bring her. The learned lower court held that the evidence as regards the divorce was not sufficient and that it had not been proved as to what ceremonies were necessary in order to effect a valid divorce. The conviction of the accused was, therefore, upheld. In this petition it has been urged on behalf of the accused persons that no specific evidence has been led by the prosecution to prove the marriage of Nand Kishore with Mst. Gattu strictly, and that the evidence of relationship of marriage was not sufficient to support a conviction under sec. 494 I. P. C. for bigamy. Numerous authorities have been cited in support of this contention. The earliest case cited is The Empress vs. Pitambur Singh (l) which is a Full Bench case. In that case the evidence of the husband was that the woman was his wife by marriage and the woman also said that "she was married to Somea, her husband. It was held that under sec. 50 of the Indian Evidence Act such evidence of relationship was not sufficient to support the conviction for bigamy. Strict proof that marriage was performed in a regular way, it was observed, must be adduced in such cases. The Empress vs. Pitamber Singh (1) was followed in later Calcutta cases. Sobrati vs. Jungli (2), Prahlad Barman vs. Emperor (3) and Talep Ali Choudhury vs. Sardar Khan (4 ). In Sobrati vs. Jungli (2) some evidence was led to prove the ceremonies of a marriage in muslim form but as the husband and wife were both minor and not capable of giving their consent and as no evidence was produced regarding the appointment of their guardians, it was held that the marriage was not proved. The evidence of husband and wife was considered insufficient to prove the marriage. Similarly, in Prahlad Barman vs. Emperor (3) the custom of putting vermilion on the forehead of the wife was held insufficient to prove marriage, as it had not been established as to what ceremonies were necessary in the community of the parties to constitute a valid marriage. In Empress of India vs. Kallu (5) it was held that strict proof of marriage was necessary in cases of bigamy and admission of the accused in no way strengthens the case of prosecution. In Ganga Patra vs. Emperor (6) it was observed that strict proof of the rites of marriage must be given in cases of offences under secs. 493 and 498 I. P. C. , so that the court may decide from the evidence before it whether the marriage was valid. The decisions in Phikku vs. Emperor (7), Prem-chand Nira vs. Bai Calal (8), Bhagu Dhondi vs. Emperor (9)and Vir Singh vs. Emperor (lo) lay down the same principles. The case in Queen-Empress vs. Subbarayan (11) takes a lenient view of the evidence. In that case the principles laid down in Empress vs. Pitambur Singh (l) were accepted but as the case was of Maravas - a class not over-exact or nice as to religious observances or ceremonies, the statement of the husband and wife that they were married was considered sufficient evidence in a case of bigamy. Sec. 50 of the Indian Evidence Act lays down as follows - "when the Court has to form an opinion as to the relationships of one per-son to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person, who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact : Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act. or in prosecutions under secs. 494, 495, 497 or 493 of the Indian Penal Code. " The evidence of relationship, therefore, cannot be said to be sufficient to warrant the conviction in the present case The prosecution evidence in this case is that Nand Kishore and Mst. Gattu lived as husband and wife and that they were married some years back. They had one child after the marriage. No evidence has been led as regards the ceremony of the marriage. Ordinarily, therefore, the evidence that has come on the record should be regarded insufficient to form the basis of conviction for an offence under sec. 494 I. P. C. Admission of marriage has been held to be in a number of cases referred to above insufficient to strengthen the case of prosecution. Under sec. 58 of the Indian Evidence Act facts admitted need not be proved. There is, however, a proviso to that section by which the courts are authorised to require the facts admitted to be proved otherwise than by such admissions. There may be cases where parties believe that marriage has been performed whereas according to law that ceremony may be insufficient to form a valid marriage. It is, therefore, considered desirable that strict proof of the ceremonies of the marriage should be insisted upon in such cases and it is not safe to decide such cases on mere admissions of the parties. The learned counsel of the petitioners has urged that the lower court has been very strict in demanding proof of divorce of Mst. Gattu whereas the same standard of strictness has not been observed in judging the validity of the complainant's marriage with Mst. Gattu. There is force in this argument. Both the marriage and divorce should be judged with the same standard of strictness. It seems unreasonable to expect strict proof of divorce when the validity of the marriage itself had not been proved properly. The learned Government advocate has stated that the parties were not very clear about the nature of the evidence which was required in the case and that is why their case suffered with certain flaws in the matter of production of evidence. He has prayed that the case may be remanded for being re-tried. Mr. Agarwal on behalf of the petitioners says that the accused persons have suffered already a lot in fighting out this case in three courts and a re-trial, therefore, would mean further hardship to them. As this case relates to a case of bigamy which is not a trivial offence, it seems desirable, under the circumstances of the case, to send it back after setting aside the convictions and sentences of the accused persons to be tried again, in case the complainant desires to prosecute them. The revision petition is allowed and the case shall be sent back accordingly. .;