JANAKI AMMA Vs. PADMANABHAN NAIR

JUDGEMENT

(1.) This Revision Petition arises out of a prosecution started in respect of a bigamous marriage. The complainant is the first wife of the 1st accused who married her in the month of Medom 1106. Her case is that during the subsistence of that marriage the 1st accused took the second accused also as his wife by marrying her in the year 1122. The parties are Nairs governed by the provisions of the Travancore Nair Act. The learned Sub Divisional Magistrate who tried the case found that the allegations made by the complainant are true and that the elements of the offence of bigamy punishable under S.497 of the Travancore Penal Code had been made out. Accordingly the 1st accused was convicted of the offence under that section and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 100 the alternative sentence in case of default of payment of fine being rigorous imprisonment for a further period of 2 months. The 1st accused took the matter in appeal to the Sessions Court at Mavelikara. The learned Sessions Judge found the appellant accused not guilty of the offence under S.497 and accordingly set aside the conviction and sentence and acquitted him. The complainant has preferred this petition seeking revision of that order on the ground that the view taken by the learned Sessions Judge as to the essential elements constituting the gist of the offence of bigamy is unsustainable in law.

(2.) On the evidence on record the learned Sessions Judge found that the following facts have been conclusively proved:

(3.) From these facts it is clear that when 1st accused married the 2nd accused on 29.10.1122 the order Ext. 1 by which his marriage with the complainant had been dissolved, was in force. No doubt that order was subsequently set aside and his petition for dissolution of that marriage was itself dismissed. The legal effect of such a final order is that there has been no effective order dissolving the marriage between the complainant and the 1st accused and that the said marriage will be deemed to have been in force all along so far as the civil rights of the parties to that marriage were concerned. But in a prosecution under S.497, the accused's criminal intention in the act complained of against him is of greater importance and significance than the question of any civil right as between himself and the complainant. Criminal intention or guilty knowledge must be made out against the accused before the act complained of can be held to constitute a penal offence. This position has been fully explained in R. V. Dolman (1949 All England Law Reports, Vol. I page 813 at 814). In dealing with the offence of bigamy, Streatfiled, J., observed as follows in that case: