RUGMINI AMMA Vs. PRABHAKARAN AND OTHERS

JUDGEMENT

(1.) The petitioner challenges the order of discharge of the respondents-accused under Sec. 245(1) of the Code of Criminal Procedure by the Judicial Magistrate of First Class, Pattambi.

(2.) The petitioner had filed a complaint against the four accused for the offence of bigamy punishable under Sec. 494 read with Sec. 109 of the Indian Penal Code. The petitioner produced all her evidence, which consisted of the oral testimony of P.Ws. I to 4 and documents marked as Exts. X1, X2, X2 (a). PW-1 is the complainant, who claimed that she had been married by the first accused on 13-9-1967, that two children were born out of that wedlock, that the first accused subsequently abandoned her and that the first accused married the second accused on 13-7-1978 at the Guruvayurappan Temple, Pattambi, P.Ws. 2 to 4 are alleged to be witnesses to the second marriage, and according to the complainant, the offending marriage. The Magistrate, on an examination of the entire evidence adduced by the complainant under Sec. 244(1) of the Code of Criminal Procedure passed the order under Sec. 245(l), discharging the accused, finding that in the absence of reliable evidence relating to the first marriage no case had been made out against the accused.

(3.) Mr. Parmeswaran appearing for the petitioner, submits, that this approach of the trial Magistrate is wrong, what should have been considered is as to whether there was proof relating to the solemnisation of the second marriage and the Magistrate need not have looked into the question as to whether there was evidence relating to the first marriage. This hardly seems to be correct, since Sec. 491 of the Indian Penal Code provides, that "whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine". To make out an offence under Sec. 494 of the Indian Penal Code the complaint shall be that during the lifetime of a husband or wife that person marries again, and such persons who are concerned in the second marriage during the life of such husband or wife are liable to be punished. The elements of the offence therefore are (i) that the marriage was subsisting (ii) the husband and wife are alive and (iii) one of' them contracts a second marriage. For an offence to be made out, it is submitted by counsel for the petitioner, that the second marriage must by proved to be solemnised in accordance with law and or custom, as the case may be. What he submits is that the emphasis is more in relation to the second marriage rather than in relation to the first marriage. A second marriage becomes unlawful only if there was a first marriage validly solemnised. If that be so, in the absence of evidence relating to the first marriage, there would not be an offence under Sec. 411 of the Indian Penal Code, only because the complainant alleges that that was a second and therefore an offending, marriage.