NARUMAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This criminal appeal has been filed with a certificate granted by the Bombay High Court under Art. 134(1) (c) of the Constitution, and it challenges the validity and correctness of the order passed by the said High Court convicting the appellant Narumal Holaram Sindhi under S. 5 of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 (Act XXV of 1946) hereinafter called the Act) and sentencing him to suffer rigorous imprisonment for six months. The prosecution case against the appellant was that on September 9, 1953, he had contracted a second marriage at Khandwa in Madhya Pradesh with one Vishna Devi though he had his first wife living whom he had not divorced and thus rendered himself liable to be punished under S. 5 of the Act. Along with him his second wife Vishna Devi was also charged with having committed an offence under S. 6 of the Act. The case against both of them was tried by the Judicial Magistrate, First-Class, Second Court, Nasik. The learned magistrate held that the appellant had contracted a bigamous marriage which was void under S. 4(b) of the Act and that his second wife had abetted the solemnisation of the said marriage; in other words, he found that the appellant and his second wife had committed the offences under Ss. 5 and 6 of the Act respectively. However, he upheld the plea raised by the appellant that he had no jurisdiction to try the offence; that is why the appellant and his second wife were acquitted under S. 258(1) of the Code of Criminal Procedure. The order of acquittal passed in favour of the appellant was challenged by the State of Bombay by an appeal before the High Court. The High Court has reversed the conclusion of the magistrate on the question of jurisdiction and following its decision in Radhabai Mohandas vs. State of Bombay, ILR (1955) Bom 1039, it has held that the trial magistrate was competent to try the case against the appellant. On the merits it has confirmed the finding recorded by the magistrate and convicted the appellant under S. 5 of the Act. Thereupon the appellant applied for and obtained a certificate from the High Court, and with the said certificate he has come to this Court.

(2.) On behalf of the appellant Mr. Frank Anthony has raised two questions for our decision. He contends that S. 4(b) as well as S. 5 of the Act are ultra vires; alternatively he argues that even if the said Sections are valid, the High Court was in error in holding that the trial magistrate had jurisdiction to try the case. It appears that both these questions had been considered by the High Court in the case of Radhabai Mohandas, ILR (1955) Bom 1039, in which it has been held that it was competent to the Provincial Legislature to enact Ss. 4(b) and 5 of the Act and that the result of S. 8 of the Act was to confer jurisdiction on the trial magistrate to try the case. Subsequently the point about the vires of Ss. 4(b) and 5 which was decided in that case was referred to a Full Bench of the High Court in the case of The State vs. Narayandas Mangilal Dayame, ILR (1957) Bom 880, and the full Bench has reversed the decision in the case of Radhabai Mohandas, ILR (1955) Bom 1039, and has held that S. 4(b) of the Act was ultra vires and so the penal provisions of S. 5 did not operate in regard to marriages contracted outside the State. Mr. Anthony has naturally relied on this Full Bench decision in support of his first contention.

(3.) The contention about the vires of the relevant provisions of the Act undoubtedly raises an important question about the competence of the State Legislature to enact provisions which are characterised by the appellant as extra-territorial and as such outside the competence of the Legislature. We have, however, come to the conclusion that it is not necessary to decide this point in the present appeal. It is clear that after the passing of the Hindu Marriage Act the Act in question has been repealed; and the decision about the vires of two of its provisions would be a matter of merely academic importance. If we had thought that even so it was necessary to decide the said point in order to deal with the present appeal effectively we would not have hesitated to do so; but, for reasons which we will presently indicate, we are inclined to hold that the view taken by the High Court on the question of the jurisdiction of the trial magistrate to try the present case is erroneous even if the relevant provisions of the Act are held to be intra vires. That is why we do not propose to deal with the first contention raised before us. We must add that Mr. Sen, who appears for the respondent, has stated that in view of the fact that the Act has now been repealed the State is not keen on getting a decision from this Court on the question of the vires of the impugned Sections. We will, therefore, proceeded to deal with the question of the Magistrate's jurisdiction to try the case on the assumption that both Ss. 4(b) and 5 of the Act are intra vires.