SHAVITRI Vs. SANKARAN

JUDGEMENT

(1.) In a warrant case instituted otherwise than on police report five persons were prosecuted for an offence punishable under Section 494 Indian Penal Code. Three of them were discharged under Section 245 after recording evidence under Section 244- Cr. P.C. Charge was framed under Section 246 only against the man and woman who allegedly contracted the bigamous marriage. They too were subsequently acquitted under Section 248(1) on the finding that both marriages were not proved. Complainant challenges the acquittal.

(2.) There cannot be any despite that both marriages must be proved in order to constitute an offence under Section 494 Indian Penal Code. It is essential that at the time of the second marriage the accused was already a married man or woman and the previous marriage must be legal and subsisting. For the subsistence of the marriage it is essential that both husband and wife should be living. Death of one will automatically put an end to the marriage. Even by act of parties or by orders of a competent Court or otherwise the relationship could be terminated. Without any of these contingencies happening the first marriage should be subsisting at the time of the second marriage. The first marriage and its subsistence must be such that the second marriage is void by reason of its taking place during the life of such husband or wife. Therefore it is essential that the first marriage must be a valid on capable of creating a legal marital relationship.

(3.) In our country marriage is mostly a matter of solemnisation rather than being a contract. Whatever that be proof of observance of all the legal formalities or solemnisation in accordance with the customary rites and ceremonies recognised by law governing the parties or by custom obtaining in the community to which the parties belong is absolutely necessary. Then only a legal marital relationship will come into being capable of nullifying a second marriage during its subsistence. It is essential that a second marriage during the subsistence of the first marriage is not legally permissible also. Therefore the primary and essential factor to be established is that there was a legal and valid first marriage, which was subsisting at the time of the second marriage. In the absence of a valid marriage there is no question of the second marriage being void solely by reason of the first alliance.