RADHABAI MOHANDAS Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This is an application in revision against the order passed by the Presidency Magistrate, Bandra, acquitting the respondent.

(2.) The applicant is the wife, of the respondent. She married the respondent in Sind in 1941. After the partition of India the respondent and the applicant came to Bombay. They lived together at Mahim for three years. Disputes then started between them. Since some time in 1951 they have been living separately. On 8-61952, the respondent contracted a second marriage at Gwalior. The applicant learnt about this in August 1932 and reported the matter to the police. The police investigated the matter and then sent up a charge-sheet against the respondent under Section 5, Bombay Prevention of Hindu Bigamous Marriages Act, 1946. I will refer to this Act hereafter, as ''the Act". Section 5 read with Section 4(b) makes it on offence for a person domiciled in the Province of Bombay to contract a marriage during the life time of his spouse, outside the Province. The respondent denied that he had contracted a second marriage at Gwalior. He also denied that he had a domicile in Bombay. He also contended that the trying Magistrate had no jurisdiction to try him for this offence, as it had been committed outside the limits of his territorial jurisdiction. The learned Magistrate found that the respondent had contracted a second marriage with one Ambika at Gwalior on 8-6-1952. He also found that the respondent had been living at Bombay since 1948, that he intended to settle permanently in Bombay and that consequently lie had a domicile in the Bombay State, He, however, accepted the respondent's contention that he had no jurisdiction to try him for this offence. He accordingly acquitted the respondent. Against the order if acquittal, which must be construed to be an order of discharge see.-- Yusofalli Mulla v. King', AIR 1949 PC 264 (A) the present application has been filed. The application was supported by the Government Pleader who appeared for the State.

(3.) Mr. Mengde, who appeared for the respondent, did not challenge the findings of fact recorded by the learned Magistrate. There is also ample evidence to support these findings. Mr. Mengde, however, contended that Section 4(b) of the Act has no legal effect, as no proper legal meaning can be given to the words "domiciled in this Province" used in the section. He also contended that Section 4(b) is legislation on the subject of domicile and is consequently ultra vires of the Bombay Legislature He further urged that the Bombay Legislature was not competent to make an act committed outside the Province a crime and that consequently Section 5 read with Section 4(b) was ultra vires of the Bombay Legislature, in so far as it made it an offence to contract a bigamous marriage outside the limits of the Province. He also urged that the trying Magistrate had no jurisdiction to try this offence, as it had been committed outside Greater Bombay.