DEVA PRASAD REDDY Vs. MRS. KAMINI REDDY

JUDGEMENT

(1.) THIS revision petition is by the accused. In the complaint, he has been accused of an offence punishable under Section 494 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC, for brevity). The facts of the case are as follows: - The complainant is the wife of the petitioner. They were married on 22.1.1992 at the Stella Mary's College Chapel, at Chennai as per the Roman Catholic rites. The Luz Church, Mylapore, Chennai had issued a Certificate of Marriage. They had set up their matrimonial home at Koramangala, Bangalore. It transpires that the marriage was a failure. It is further alleged that the petitioner ultimately had been unfaithful to the complainant and had developed a relationship with a Muslim woman and ultimately went to the extent of changing his faith from Catholicism to Islam, not out of devotion, but only as a matter of convenience and had married the Muslim woman, Nagina. The petitioner had even changed his name from -Deva Prasad Reddy to Salman Dev. These acts of the petitioner, it was alleged, had been committed, even when the marriage of the complainant and the petitioner was subsisting and when she continued to be the legally wedded wife of the petitioner. She had learnt of the second marriage of the petitioner in December 1993, and that the wedding was performed at a mosque in Koramangala, Bangalore, and had been recorded in the Register of Marriages maintained by the said mosque. It is further stated that pursuant to the same, the complainant had even filed a civil suit in O.S. No. 130/1995 before the I Additional Principal Judge, Family Court, Bangalore, seeking declaratory reliefs, declaring that she was the only legally wedded wife of the petitioner, and that the child, Mrinalini was their only legal heir and that the marriage between the petitioner and the other woman Nagina was a nullity and to restrain Nagina from calling herself as the legally wedded wife of the petitioner etc., and that suit was decreed as prayed for. The complainant, was married earlier in the year 1982, to one Robert Selvam at Chennai and that marriage was dissolved by a decree of divorce granted by a Court at California, United States of America and thereafter, she had returned to India. Her father had advertised for a suitable groom and the petitioner's father had responded to the same and the marriage between the petitioner and the complainant was arranged. Insofar as the decree granted against the petitioner was concerned, the same had been challenged by way of an appeal before this court in Miscellaneous First Appeal No. 3431/2000 and the same was dismissed by a considered judgment. This having been carried by way of a Special Leave Petition, before the Supreme Court, the same was also dismissed. It was thus contended that the question of a subsisting marriage between the petitioner and the complainant being a settled issue and the petitioner having pleaded not guilty in the complaint filed against him and the evidence tendered by the complainant to establish the fact that even during the subsistence of the marriage between the complain ant and the petitioner, he had contracted marriage with one Nagina and therefore, was guilty of the offence punishable under Section 494 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC, for brevity) was held proved by the trial court and the petitioner was convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs. 2,000/ -. The same having been challenged in appeal, was dismissed and the judgment of the trial court was affirmed. It is that which is under challenge in the present petition.

(2.) IT is contended that the complaint is filed after nearly four years of the alleged knowledge of the petitioner having contracted the second marriage and no reasons are assigned for the delay in bringing the complaint. It is pointed out that at Paragraph 4 of the complaint, it is stated that the respondent came to know about the relationship on 16th May 1992 and the complain is lodged on 19.8.1996. Exhibits P.16 to P.21 and P.48 to P.54 as well as reports by M/s. Globe Detective Agency, would indicate that the complainant knew of the relationship even as on 9.5.1992, which would clearly demonstrate that the complainant had engineered the case and foisted the same on the petitioner after much meditation. The courts below have glossed over this aspect of the matter. Reliance was placed on a judgment of the Supreme Court in the case of Purandar Sahoo vs. Golapi Sahoo, (2007) 15 SCC 696, wherein the apex court has held that the complainant in that case not having taken any steps for prosecution, under section 494 of the IPC, for nearly four years after coming to know of the offence committed, was fatal to the case. In the present case on hand, though the trial court has taken note of the delay, has held that the complainant has explained the same, though no reasonable explanation is forthcoming. It is further contended that the burden of proving was on the plaintiff to establish a charge under Section 494 of the IPC, that there was a valid marriage between the complainant and the petitioner. It is not in dispute that the complainant was married to one Robert Selvam and that the said marriage had been dissolved at California, United States of America. Exhibit -P.43 was the Order of the Diocese of Orange Marywood Center, California dated 28.1.1997, which had prescribed conditions for remarriage and it is claimed that the complainant had not established that the condition imposed on her for remarriage at the time of dissolution of the earlier marriage was complied with and therefore, it could not be said that the marriage of the petitioner with the complainant was valid. It is also claimed that in terms of Exhibit P.43 in the column relating to whether the marriage is banns or license, it is indicated that the marriage was by banns. As per Canon law applicable to the Roman Catholic Church, it is the contention of the petitioner that there has to be three banns before solemnization of a marriage. In the event of dispossession of three banns, explanation has to be given as to why the same was dispensed with. There is an endorsement that two banns were dispensed with, but no explanation is forthcoming as to why the same was dispensed with. Therefore, the Marriage Certificate and the marriage between the complainant and the petitioner was not according to Roman Catholic customs and rites and therefore, not valid. It is further contended that it was also incumbent on the complainant to prove a second valid marriage between the petitioner and Nagma. Reliance is placed on exhibit P.65(a), which is an extract of the Marriage Register of the Jamait of Mamoor Mosque. The Register is not valid and is void in law as the place of marriage is not shown. The name of the bridegroom is shown as Sulman Dev Sahib and no signature of the petitioner or the bride is forthcoming after the declaration of the bridegroom accepting Nagina as his wife. It is contended that the courts below have failed to note that PW. 2 had stated that he cannot identify the petitioner. He had further stated that there is no conversion certificate of the petitioner to Islam and proper procedure is not followed, in that, the mosque where the alleged conversion had taken place, should also issue a certificate, which is not forthcoming Exhibit P.51, on which the complainant has relied, has indicated that the petitioner and Nagina were not married. The trial court has also taken note of the report, however, has concluded on extraneous considerations that the petitioner was married to Nagina. Therefore, it cannot be said that the complainant had established the second marriage. It is further contended that it was incumbent on the complainant to prove a valid second marriage. The admission of the marriage by an accused is no evidence for an offence punishable under section 494 of the IPC, as laid down by the apex court in Kanwal Ram and Others Vs. The Himachal Pradesh Admn., AIR 1966 SC 614 . Therefore, the conviction for bigamy was not justified in the absence of proof of such second marriage.

(3.) THE learned Counsel for the petitioner, by way of reply, would seek to reiterate the contentions raised and would further plead that while the trial court having been convinced insofar as the punishment to be imposed, required to be imposed with lenience, having regard to the fact that the petitioner had aged parents to take care of, has still proceeded to impose a stringent punishment of imprisonment for 2 years and fine and therefore, seeks that there be a minimal punishment, even if the petitioner is to be found guilty. Given the above rival contentions, and on a careful perusal of the record, the complainant has certainly established a strong case against the petitioner and the several grounds urged namely, that the delay in lodging the complaint was fatal to the case or that the marriage between the petitioner and the complainant was not a valid marriage and that the complainant had failed to prove the second marriage etc., all of which, have rightly been held against the petitioner. Therefore, there is little scope for interference in the present revision petition. However, insofar as the punishment that is imposed is concerned, having regard to the totality of the circumstances and the fact that the complainant and the petitioner have no prospect of reconciliation, but yet the petitioner having his aged parents to care for, which the trial court has also taken note of, the imposition of punishment by way of simple imprisonment for two years and fine could be modified to a punishment of simple imprisonment for a period of one year, while not disturbing the punishment of fine imposed. Therefore, with the above modification, the petition stands allowed in part.