SAVITHRI Vs. SANKARAN

JUDGEMENT

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

(2.) THERE cannot be any dispute that both marriages must be proved in order to constitute an offence under S. 494 Indian Penal Cede. 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 one capable of creating a legal marital relationship.

(3.) ADMISSION of the accused that there was a first marriage or that the second marriage was also conducted will not exonerate the complainant from the burden of proving those marriages. In a prosecution under s. 494 I. P. C. and some other cases it is incumbent upon the complainant to establish that both marriages pleaded by him or her were solemnised in accordance with the customary rites and ceremonies prescribed either under law governing them or recognised by custom prevailing in their community. Decision cannot be on the basis of admission. If the first marriage is not legal there is no question of legal marital status arising and hence there is no question of the second marriage becoming void for that reason and the observance of such second marriage becoming an offence. Both the marriages must strictly be proved by legal evidence independent of any admission on the part of the husband or wife as the case may be. Even the presumption arising on the basis of opinion expressed by conduct under the first part of S. 50 of the Evidence Act as to relationship is excluded by the proviso in proving a marriage in cases in which the relationship of husband and wife is in issue and marriage is an ingredient of an offence as in bigamy, adultery and enticing away of a married woman.