BHANDARI, J. - (1.) THIS is a revision application on behalf of Sitaram Mali and Mst. Maina against their conviction under sec. 494 of the Indian Penal Code.
(2.) MST. Maina is legally married wife of complainant Jagannath. Their marriage took place on 14. 5. 1945. Jagannath Mali filed a complaint in the Court of the Magistrate, Ajmer on 9. 6. 55, alleging that MST. Maina had married Sitaram accused on 7. 5. 1955. It is alleged that he had some land in Akola and in his absence his wife MST. Maina lived with her father Tikuji. After the death of her father, she resided with Sua Ram and Ram Piari, who were also accused in the trial Court. Ram Piari was sister of MST. Maina and Sua Ram was husband of Ram Piari. The case was tried by the Magistrate First Class, Ajmer and the learned Magistrate convicted MST. Maina under sec. 494 I. P. C. and sentenced her to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 100/- in default of payment of fine to undergo further R. I. for 2 months. Sitaram was convicted u/s. 494/109 I. P. C. and sentenced to undergo 6 months R. I. and to pay a fine of Rs. 100/- in default of payment of fine to undergo 2 months R. I. The other two accused Suaram and Rampiari were acquitted. An appeal was filed by Sitaram and Mst. Maina to the Sessions Judge, Ajmer. The learned Sessions Judge rejected the appeal but reduced the sentence of imprisonment from 6 months to 3 months in the case of each accused. Hence, this revision application in this Court. The main argument that has been addressed by the learned counsel for the applicants is that there is no proof of the marriage of Mst. Maina with Sitaram. The learned Sessions Judge was of the opinion that there was a ceremony which consisted in Mst. Maina filling a pitcher with water and Sitaram taking off that pitcher from her head. That ceremony was called 'beora' ceremony and in his opinion, that ceremony was sufficient for proving marriage of Mst. Maina with Sitaram. The learned counsel for the applicants has argued that even if we take it that any such ceremony was performed, this is altogether insufficient to prove the marriage. Under sec. 494 I. P. C. , it is necessary for the prosecution to prove that there was marriage of Mst. Maina with Sitaram and that such marriage must be strictly proved. For Hindus, there is no statutory marriage law. The parties arc Malies by caste and it may be taken that if in accordance with the usage prevailing in that community, the performance of a particular ceremony is sufficient for the validity of a marriage. Marriage performed in accordance with that custom or usage is a valid marriage. It was the duty of the complainant to prove that the marriage of Mst. Maina with Sitaram was performed in accordance with the custom prevailing in his community. The only ceremony that is alleged to have taken place was this 'beora' ceremony. There is no evidence on record that 'beora' ceremony was sufficient for the performance of marriage even though it may how 'nata marriage'. The complainant himself has admitted that for 'nata marriage' ceremonies take place as in an ordinary marriage. Bridegroom's party go to bride's place and a feast is held. Thereafter, the bride fills a pitcher with water and the bride groom takes off the pitcher from her head. Thereafter, Nata takes place and there is the ceremony of tying of knots. He further added that tying of the knots sometimes does not take place. Then, he further states that 'chuda' (bangles) are also worn by the bride. The learned Sessions Judge took it that 'beora' ceremony was essential part of the ceremony for Nata Marriage and the other ceremonies need not be performed. The evidence on behalf of the accused laid emphasis on the the tying of the knots. D. W. 5 states that tying of the knots was the only ceremony for the performance of Nata marriage. Though the complainant modified his statement somewhat but he himself admitted that after the 'beora' ceremony, Nata is performed and then takes place the ceremony of tying of the knots. From his statement, it cannot be taken that after the performance of the 'beora' ceremony, there was a complete marriage and no other ceremonies are required to be performed. Ceremony of tying of knots and later on wearing the bangles may be taken of as much importance as the 'beora' ceremony. As the evidence stands in this case, it cannot be said that the complainant has been able to prove that after the performance of the 'beora' ceremony, a complete marriage takes place. In my opinion, it has not been satisfactorily proved that Mst. Maina was married with Sitaram according to the usage prevalent in the Mali community of Ajmer. The learned Sessions Judge has referred to the statement of Mst. Maina, which she made before the First Class Magistrate on 2. 6. 55. In that statement, she admitted that she was living with Sitaram as his wife. Her husband Jagannath could not maintain her well and ill treated her. She was forced to leave him and stay with her father. After her father's death, she herself wanted to have a shelter and house and decided to remain with Sitaram. In this statement, there is no reference that she had been married with Sitaram. Read as a whole it is no admission of her marriage with Sitaram. In my opinion, the evidence produced in this case falls short of the requirements of proving a marriage under Sec. 494 I. P. C. The accused cannot be convicted of an offence or bigamy, unless the second marriage is satisfactorily proved. The revision application, is therefore, accepted. . The order of the learned Sessions Judge, Ajmer dated 12. 4. 1958 convicting the applicants is set aside and they are acquitted. If any fine was recovered from them, it may be refunded to them. The accused are 011 bail and, therefore, they need not surrender. . ;