SIVAGAMI Vs. S NAGALINGAM

JUDGEMENT

(1.) THE complainant before the trial Court has come forward with the instant appeal against order of the XI Metropolitan Magistrate, Saidapet, Madras in C.C.No.2223 of 1985.

(2.) THIS appeal has arisen in this way: The complainant is the legally wedded wife of the accused Nagalingam. The marriage between the complainant and the accused was celebrated on 6.9.1970 in Keelkolathur Village in Cheyyar Taluk in North Arcot District. In the lawful wedlock, three children were born to them. Later, the husband ill-treated the wife, as a result of which she had live away from him. Later, she came to know that the husband took one Kasthuri as the second wife on 18.6.1984. She came to know that the marriage was performed in R.C.C. Marriage Hall, at Thiruthani Temple as per the Hindu rites. She had preferred a private complaint before the learned Metropolitan Magistrate against the husband and certain other persons in C.C.No.2223 of 1985. The learned Metropolitan Magistrate conducted the trial and came to the conclusion that the offence is not established and accordingly acquitted all the accused. As against the acquittal, the complainant preferred Criminal Appeal No.67 of 1992. THIS Court passed orders on 1.11.1996 setting aside the acquittal of the husband and directed the trial Court to hold trial and decide the matter. At the time of the earlier trial, the complainant had examined herself as P.W.1. She had examined one Panchatcharam, a clerk employed in Thiruthani temple, who was maintaining the books and registers where entries relating to the marriages are entered into and also P.W.3 Kameswara Rao, the prohit, who had solemnized the marriage. She had produced three documents, namely a letter issued on 11.4.1995 by Subramania Swamy temple, Ex.P-2 xerox copy of the forms to be filled up for seeking permission for marriage and Ex.P-3 the copy of the certificate issued by the Village Officer to the effect that the marriage between the accused and his second wife Kasthuri was the first marriage for them. The accused had not let in any oral or documentary evidence. After remand, the complainant recalled Kameswara Rao, the prohit and examined him. The prohibit had given all the details of the ceremonies that were performed at the time of the solemnization of the marriage. After following the procedure, the learned Metropolitan Magistrate again came to the conclusion that "Sapthapathi" had not been performed and therefore, the second marriage is not a validly solemnized marriage to attract the provision of Sec.17 of the Hindu Marriage Act to make the second marriage as bigamous marriage and accordingly acquitted the accused. As against the acquittal, the wife/ complainant has come forward with the instant criminal appeal.

(3.) IN his judgment, the learned Metropolitan Magistrate has referred to the decision reported in Urmila v. State of U.P. , 1994 Crl.L.J. 2910 and the decision reported in Lingari Gokulamma v. Venkatareddy and others , A.I.R. 1979 S.C. 654. These cases relate to a marriage performed in Karnataka and U.P. State. It is unfortunate that the learned Metropolitan Magistrate has not adverted his attention to the State Amendments made to Sec.7 of the Hindu Marriage Act. Sec.7-A has been introduced by the T.N.Act 21 of 1967. Sec.7-A of the Hindu Marriage Act recites as under: "7-A. Special provision regarding, Suyamariyathai and Seerthirutha marriages: (i) This Section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or Seerthirutha marriage or by any other name, solemnized in the presence of relatives, friends or other persons- (a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or (b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or (c) by the tying of the thali, (2) (a) Notwithstanding anything contained in Sec.7, but subject to the other provisions of this Act, all marriages to which this Section applies solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967 shall be good and valid in law. (b) Notwithstanding anything contained in Sec.7 or in any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any Court, but subject to Sub-sec.(3), all marriages to which this Section applies solemnised at any time before such commencement, shall be deemed to have been, with effect on and from the date of the solemnisation of each such marriage, respectively, good and valid in law. (3) Nothing contained in this Section shall be deemed to- (a) render valid any marriage referred to in clause (b) or Sub-sec.(2), if before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967- (i) such marriage has been dissolved under any custom or law; or (ii) the woman who was a patty to such marriage, has whether during or after the life or the other party thereto, lawfully married another; or (b) render invalid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time; or (c) render valid a marriage between any two Hindus solemnised at any true before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnised in accordance with the customary rites and ceremonies of either party thereto: Provided that nothing contained in this Sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement. (4) Any child of the parties to a marriage referred to in Clause (b) of Sub-sec.(2) born of such marriage shall be deemed to be their legitimate child: Provided that in a case falling under Sub-clause (i) or Sub-clause (ii) or Clause (a) of Sub-sec.(3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said Sub-clause (ii)."