INDU BHAGYA NATEKAR Vs. BHAGYA PANDURANG NATEKAR

JUDGEMENT

(1.) AN issue of immense sociological importance has been thrown up for a decision in this appeal, which I am summarising as follows : What is the degree and nature of proof that is required for purposes of establishing an offence under section 494 of the Indian Penal Code, and more importantly, is it obligatory that the complainant must as of necessity prove that all necessary rites and ceremonies have been complied with in respect of the alleged second marriage. Conversely, whether a conviction for bigamy is sustainable if there is other reliable evidence to establish the charge ?

(2.) THE offence of bigamy, hits at the very root of the social institution of marriage and the framers of the Indian Penal Code have categorically classified it as a serious criminal offence, having regard to its deleterious fall-out on the subsisting marriage. This offence is often alleged but rarely held to be proved before the courts. While intepreting section 494, I. P. C. , which has been the subject-matter of many decisions of the High Courts and the Supreme Court on different facts and circumstances, the Court has to bear in mind that a party contracting a second marriage during the subsistence of the first one, is essentially put on guard by the fact that the consequences could be serious to both the persons involved in that act and invariably, therefore, keeps the marriage; particularly the ceremony part of it, as secret as possible. The aggrieved spouse is confronted with a situation of the parties living together, openly professing to be husband and wife, possibly acknowledging the paternity of the children. When these facts are complained of before a Court of law in a proceeding under section 494 I. P. C. , the aggrieved spouse is confronted with the legal requirement of proving the factum of the second marriage and in absence of being able to do so, in the majority of prosecutions under section 494 I. P. C. , the wrong-doer is acquitted by the Criminal Courts. Section 494 I. P. C. reads as follows :

(3.) I shall briefly recount the facts that have given rise to this appeal. The appellant-wife Smt. Indu Bhagya Natekar field a Criminal Complaint, being Criminal Case No. 2531 of 1978 in the Court of the Chief Judicial Magistrate. Thane, against her husband Bhagya Pandurang and the husbands cousin Ganpat. Dharma Natekar alleging that during the subsistence of her marriage with the husband, he had contracted a second marriage with one Manjula Narayan Kadam on 15-11-1978. The complainant - wife relied on the marriage certificate issued by the Registrar of Marriage at Thane dated 21-11-1978, which is Exhibit No. 24 of the record, and which indicates that the accused No. 2 was a witness to the marriage and to this extent she contended that he was an abetter to the offence and was liable to be punished under section 494 read with section 114 of the Indian Penal Code. The learned Judicial Magistrate F. C. , Thane, after considering the evidence on record, convicted both the accused and sentenced each of them to suffer rigorous imprisonment for two years and to pay a fine of Rs. 250/-, in default to suffer further R. I. for one month.