MARTHA SAMADHANAM DAVID Vs. SUDHA

JUDGEMENT

(1.) This is a revision petition against the order in Criminal Revision petition 74/48-49 on the file of the 1st Additional Sessions Judge, Bangalore, confirming the order of discharge passed by the City Magistrate in C.C. No. 1157 of 1948-49 on the file of his Court.

(2.) The complaint is one of bigamy, an offence punishable under Section 494, Penal Code. The accused a Hindu by birth was, after con-version into Christianity married to the complainant a Christian by birth. Both of them were later on converted into Hinduism by Aryasamaj and he then married a Hindu girl. The Magistrate discharged the accused holding that his second marriage after he was converted into Hinduism does not amount to an offence and this view was upheld in revision by the Sessions Judge. It is against this order of the Sessions Judge that the complainant has filed this revision petitions.

(3.) The offence punishable under Section 494, Penal Code is based on the law of England. According to 24 and 25 Vict. Order 100, S. 57 "whoever, being married shall marry any other person during the life of the former husband or wife shall be guilty of felony." It will be seen that according to this definition any domicile subject to the Law of England commits the offence, if he or she marries again during the lifetime of the former husband or wife as the case may be, as according to that law neither plurality of wives, nor plurality of husbands is recognised. A second marriage by a Hindu or a Muslim male during the lifetime of his first wife allowed by their religion cannot be made punishable in India where the Hindus and Muslims from the major portion of the population and an exception had to be made in the case of these persons. According to Section 494, Penal Code, therefore, "Whoever having a husband or wife living married" is punishable only "in any case in which such marriage is void by reason of its taking place during the life of such husband or wife." The result is that Polygamy or Polyandry is protected wherever it is allowable. The Hindu or Muslim male can marry again though the first wife is alive but a Hindu or Muslim female cannot do so. A Toda woman cannot be punished for bigamy as amongst Todas Polyandry is recognised. A Christian male or female is guilty of this offence both in England and in India, if being married marries another person during the lifetime of the first wife or husband.