STATE OF KARNATAKA Vs. SHIVARAJ

JUDGEMENT

(1.) THE State of Karnataka has assailed the correctness of an order of acquittal recorded by the Principal Sessions Judge, Bidar in Sessions Case No. 36/91 on 5-7-1996. The two accused before the trial Court were Shivaraj who was the husband of accused No. 2 Bhagamma. This Shivaraj had no children through Bhagamma and it is alleged that in the year 1983 he married deceased Vimlabai at Udgir. Apart from the usual allegations that at the time of the marriage a prescribed sum of money and gold ornaments etc. had passed hands, the prosecution alleged that six months after the marriage the two accused started harassing and torturing Vimlabai in order to force her to secure one tola of gold from her parents as additional dowry. Obviously, the parents were not in a position to comply with this demand and the prosecution case is that these pressures just kept on increasing and as result of the cruelty that was inflicted on Vimlabai that she finally ended her life by jumping into the well at Madnoor on 20-9-1989. Pursuant to a complaint from her parents, the police registered offences under Ss. 498-A and 304-B r/w 34, IPC, as also under Ss. 3 and 4 of the Dowry Prohibition Act, arrested the accused, completed their investigation and put them up for trial. The learned trial Judge took note of the various inconsistencies or infirmities that are inevitable in cases of this type considering the status of the parties, the time factor etc. and held that the evidence was not good enough to establish the charges and consequently acquitted the accused. The State has assailed the correctness of the order of acquittal through the present appeal. The earlier Division Bench on 17-3-1997 at the stage of admission of this appeal passed the following order :-

(2.) AS regards the aforesaid issue namely the question as to whether S. 498-A, IPC, as also the relevant provisions of the Dowry Prohibition Act could be made applicable in a case where the aggrieved party may not legally answer to the definition of wife and consequently, whether the penal provisions could be applied against an accused who may not come within the four corners of the legal definition of husband has been dealt with by the learned Addl. SPP at the forefront of his arguments. His submission is that as far as the present case is concerned, that the accused are estopped from canvassing any such argument or seeking any immunity therefrom because at no stage of the trial was the plea put forward questioning the status of Vimlabai as a wife nor had accused No. 1 ever contended even at the stage of his S. 313, Cr. P. C. statement that he was not the husband of Vimlabai. Secondly, what the learned Addl. SPP submits is that there is clear cut evidence from the parents and relations of Vimlabai that accused No. 1 had not merely taken her as his Mistress or Paramour but that pursuant to negotiations a full-fledged and regular marriage ceremony was entered into, that accused No. 1 acknowledged Vimlabai as his wife at all times as the evidence indicates and more importantly, that Vimlabai was residing in the house or the matrimonial house, in the capacity of the wife of accused No. 1. The submission canvassed by the learned Counsel is that in all such situations where a prima facie examination of the evidence indicates that for all intents and purposes the relationship was one of husband and wife, that the Court would have to proceed on that basis unless a decree of a competent Court is produced in support of the plea that at the time of the commission of the offence the parties were not husband and wife. The third argument that has been pressed by the learned Counsel for the appellants is that there is only some passing reference to the fact that accused No. 2 was the first wife of accused No. 1 and that she is only alleged to be the first wife though nothing has come on record as to when, where and under what circumstances they contracted the marriage and whether at all that marriage was a valid marriage. Apart from these specific submissions, the learned Counsel submitted that this Court will have to take a broad view of the relevant provisions namely S. 498-A and S. 304-B both of the IPC. and the various provisions of the Dowry Prohibition Act all of which were enacted for purposes of proventing and punishing atrocities is that the only available test which the Court must adopt is the question as to whether the person has gone through a ceremony of marriage. The larger issues as to whether there was a subsisting marriage, that somebody else or a surviving spouse arising out of a marriage which was not dissolved is alive or the question as to whether the present marriage was valid or similarly whether the earlier marriage was valid are all aspects that need not be examined in these proceedings. Learned Counsel submitted that the only correct way to view a situation of this type is to proceed on the assumption that the marriage that has been pleaded is presumed to be valid and subsisting unless and until the contrary position is established through appropriate evidence.

(3.) ON behalf of the respondent, the basic submission canvassed is that all these provisions use the legal terminology of husband and wife and what Mr. Chouta who represent the respondent-accused submits is that in the present case where the prosecution itself contends that accused No. 2 was the wife of accused No. 1, that she continued to be his wife even after the so called marriage with the deceased Vimlabai, that we are left with a position whereby the Court will have to ignore the so called marriage of 1983 contracted with Vimlabai as no second marriage is permissible under law as far as accused No. 1 is concerned during the subsistence of the earlier marriage. Mr. Chouta submits that this would immediately alter the status of accused No. 1 and deceased Vimlabai insofar as they would neither be husband or wife and consequently, none of the penal provisions could be held to be applicable. He has drawn our attention to the definition of "husband" from the Law Lexicon and the definition of "marriage" also from Law Lexicon in support of his contention that the status of husband and wife could only arise pursuant to a valid marriage contract. He has drawn our attention to the concept of definition of nullity of marriage as emanates from the Law Lexicon and the definition of void in relation to contracts and has proceeded to point out to us by virtue of the provisions of S. 11 of the Hindu Marriage Act and the provisions of S. 5 of the said Act which prescribe the essential ingredients of a valid marriage, that the subsistence of the earlier marriage during the life time of accused No. 2 who was the first wife would render the marraige between accused No. 1 and Vimlabai the deceased as a void marriage. Learned counsel drew our attention to the decision of the Supreme Court rendered in (2001) 6 SCC 534 : (AIR 2001 SC 2552 ). (Dhurandhar Prasad Singh v. Jai Prakash University) wherein the Supreme Court occasion to consider a decree that was void ab initio and was consequently recorded as a legal nullity. Learned counsel submitted that there was no necessity in the present instance to lead any further evidence because on the facts of the present case that accused No. 2 was the living spouse out of an earlier subsisting marriage and that consequently, the Court will have to totally disregard the marriage with Vimlabai as a void marriage.