CHINNASAMY Vs. LATHA

JUDGEMENT

(1.) THIS is a revision petition filed by the accused. The accused stands convicted for an offence under Sec.495, I.P.C., and sentenced to rigorous imprisonment for a period of 3 years and to pay a fine of Rs.3,000. A complaint was filed by Latha who married the accused on 4.9.1981. The complaint was filed on 16.10.1981, i.e. to say in the course of the month following the marriage. The case of the complainant was that, the accused though already in the wedlock with another woman, namely Rajeswari, has chosen to marry her and that the fact of the earlier marriage was not intimated to her. It is also her allegation that he has asked for money by way of dowry. She fifed the complaint before the Police Officer, and then she filed the present complaint before the Magistrate. The trial Court found the accused guilty of both the offences and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.3,000 for the offence under Sec.495, I.P.C., and imprisonment for a period of six months for the offence under Sec.3 of Dowry Prohibition Act. On appeal, the II Additional Sessions Judge, Madras, by judgment dated 16.11.1983, held that the offence under Sec.3 of the Dowry Prohibition Act was not established and acquitted the accused under the Act, but confirmed both the conviction and sentence in respect of the offence under Sec.495, I.P.C. Aggrieved by the above judgment, the present revision petition is filed.

(2.) THE learned counsel appearing for the revision petitioner contended that the first marriage was not adequately proved to sustain the conviction under Sec.495, I.P.C. THE evidence on which the conviction is based consists of four elements. Firstly, the deposition of P.W.6 who is the landlord. He has stated that for a continuous period of six years the accused and Rajeswari had been living in a portion of his house and that three children were born to them and that one of them passed away. Secondly, the evidence of P.W.1, who deposed that Rajeswari, on coming to know about the marriage of the accused with the complainant came to the house of the complainant and narrated the fact of the accused's earlier marriage with herself (Rajeswari). Thirdly, a birth certificate of one child dated 5.4.1982 issued by the Corporation of Madras (Ex.P5) to show that a boy was born to the accused and Rajeswari on 11.12.1977. Fourthly, Ex.P7 which is an athatchi signed by Rajeswari for the receipt of the copy of the complaint made to the police, Ex.P6.

(3.) NORMALLY in a trial under Sec.495, the debate will not turn on a second marriage, because the complaint will be by the second wife and that marriage will not be much in dispute. What would require strict proof is the first marriage which in fact in this case also this accused denied. The normal proof will be the production of the extract of the registration of the marriage to show that the marriage was celebrated. Otherwise, oral evidence can be adduced by those who attended the marriage to show that the marriage was solemnised according to the rites in practice the community to which the parties belong. Rajeswari, the alleged first wife, who was summoned by P.W.1, did not come forward to tender evidence. When those proofs are not available, it is also possible to prove marriage by preponderating repute. Imambandi v. Motasuddi, 15 C.L.J. 621. For that purpose, there should be evidence by people concerned that the parties were recognised as husband and wife. Evidence by preponderating repute implies by definition the evidence of several persons,. In this case, we have got only the evidence of P.W.6, regarding marriage. The other pieces of evidence do not count much. P.W.1 deposes that Rajeswari came to her and told her about the marriage. But P.W.1 has not stated that important fact in her complaint. The birth certificate of one child shows. that the child was born to the accused and Rajeswari, but that does not establish the link of legal marriage existing between them. The evidence adduced by the prosecution shows only cohabitation, which may be sufficient for some civil purpose, but is not adequate to prove the commission of an offence under Sec.495. The conviction of the accused cannot be sustained. The remedy for the complainant would be more of a civil nature. In the result, the revision petition is allowed and the conviction and sentence are set aside.