SANKARAN SUKUMARAN Vs. KRISHNAN SARASWATHY

JUDGEMENT

(1.) THE first respondent herein, claiming to be the legally wedded wife of the revision petitioner (first accused) and alleging that during the subsistence of the marriage revision petitioner married the second accused, which marriage is, but for the first marriage a valid marriage, filed a complaint against both the accused alleging the commission of an offence under Section 494, I. P. C. , and Section 114, I. P. C. The accused pleaded not guilty. Prosecution examined four witnesses and marked Ext. P. 1. The defence marked Exts. D1 and D2. The trial Court held that both the marriages have been proved, that the ingredients of the offence under Section 494. I. P. C, have been proved against the first accused and accordingly convicted him thereunder and sentenced him to undergo simple imprisonment for six months. The second accused has been acquitted on the ground that she must have acted under the belief that the first marriage had been dissolved under Ext, D2. While the appellate Court confirmed the conviction against the first accused, the sentence has been reduced to simple imprisonment for one month. The first accused has preferred this revision petition.

(2.) I have been taken through the evidence in the case. The evidence of the complainant examined as P. W. 1 and the evidence of P. W. 2 in the light of the averments, in Ext. D2. which is admittedly a document entered into between P. W. 1. and the first accused, clearly establish that the first accused lawfully married P. W. 1 in accordance with the customary ceremonies. Admittedly, the parties entered into Ext, D2 divorce deed, The divorce purported to have been effected under Ext. D2 does not have the sanction of law and is therefore not sufficient to put an end to the marital tie. It must follow that in the eye of law the first marriage continued to subsist in spite of Ext. D2. The evidence of P. Ws. 3 and 4 in the light of Ext. P1 and Ext. D1 clearly proves that the first accused entered into customary marriage with the second accused and that was during the subsistence of the first, marriage. The findings entered into by the Courts below in this behalf are not liable to be interfered with.

(3.) THE main contention urged by the learned Counsel for the revision petitioner is that the offence under Section 494, I. P. C, requires mens rea, that is, knowledge of the subsistence of the first marriage and the fact that, the first accused and P. W. 1 entered into Ext. D2 divorce deed would clearly show that the first accused was under the bona fide belief that the marital tie had been severed. If, in these circumstances, he contracted the second marriage, he could not be guilty of the offence and that too because of the absence of mens rea. The answer of the learned Counsel for the first respondent is that Section 494, I. P. C, does not require proof of mens rea and the offence is complete irrespective of knowledge or otherwise of the subsistence of the first marriage. While learned Counsel, for the revision petitioner sought to place reliance on earlier decisions of this Court, according to learned Counsel for the first respondent, the decisions require reconsideration.