GNANASOUNDARI Vs. NALLATHAMBI ALIAS JOKIAM JEBAMALAI AND ORS.

JUDGEMENT

(1.) THIS is a petition to revise the judgment of the Special First Glass Magistrate, Devakottai, in Calendar Case No. 76 of 1944, by which he has acquitted the first and third accused in that case. The 1st accused was baptised a Roman Catholic and married his first wife in a Roman Catholic Church. The complainant P.W. 1 is a protestant and in 1930, after the death of his first wife, the 1st accused married her in a Protestant Church, the ceremony being performed by a Protestant Pastor. Two children were born of the marriage. On 19th May, 1942, the complainant executed a release deed Ex. 1, in favour of the 1st accused - -the relevance of this deed will appear later. On 16th September, 1943, the 1st accused married the 2nd accused in a Roman Catholic Church, the ceremony being performed by the 3rd accused, a Roman Catholic Priest. Thereafter on 14th December, 1943, P.W. 1 filed a complaint in the Court of the Joint Magistrate of Ramnad charging the 1st and 2nd accused with the offence of bigamy punishable under Section 494 of the Penal Code, and the 3rd accused with abetment of the offence.

(2.) SECTION 494 of the Indian Penal Code reads:

(3.) IT is not disputed that the marriage between the accused and the complainant was solemnised in accordance with the provisions of Section 5 of the Act. A marriage solemnised under the provisions of the Indian Christian Marriage Act subsists so that any second marriage by either of the parties to the first marriage during the lifetime of the other party is void unless the marriage has been dissolved under the provisions of Section 10 of the Divorce Act or declared null and void under Section 18 on any of the grounds set out in Section 19. It may be conceded, howeyer, that a person accused of an offence under Section 494, I.P. Code, may plead in his defence that the first marriage was null and void even though he has not obtained a declaration to that effect under Section 18 of the Divorce Act. In the present case the 1st and 3rd accused raised two defences: First that the marriage of the 1st accused to the 2nd was not in any case void because the release deed - -Ex. I - -executed by the complainant operated as a dissolution of the marriage between the 1st accused and herself according to the custom of the community to which they both belonged; and, secondly, that the marriage in 1930 was not a valid marriage by reason of the provisions of Section 88 of the Indian Christian Marriage Act. The and accused was discharged on the ground that there was no proof that she knew of the 1st accused's previous marriage and her case is not before me.