BHUNDA Vs. CHETRAM

JUDGEMENT

(1.) THIS is a petition under Section 417 (3) of the old Crinimal Procedure Code for grant of special leave to appeal against an order of acquittal dated 20-11-1973 passed by the First Additional Sessions Judge, Jabalpur, in Criminal Appeal No. 181 of 1973.

(2.) THE facts of the case are that a private complaint was filed by applicant Bhunda for an offence punishable under Sections 497 and 494 of the Indian Penal Code against the non-applicants 1 and 2 respectively with an allegation that non-applicant No. 2 Mst. Nanhi Bai was his legally married wife but during the subsistence of the said marriage she remarried Chetnam (non-applicant No. 1 on 19-7-1968 and thus they committed an offence punishable under Sections 494 and 497 of the Indian Penal Code. The trial Court convicted Chetram under Section 497 and Mst. Nanhi Bai under Section 494 of the Indian Penal Code respectively. In appeal filed by both the accused-nonapplicants they both were acquitted of the respective charges by the learned First Additional Sessions Judge. Hence this petition for grant of special leave to appeal against that order of acquittal.

(3.) HAVING heard learned Counsel of the parties, I am of opinion that there is no merit in this petition and the same must be dismissed. The crucial point that arises for consideration in this case is whether the factum of first marriage between the complaint and non-applicant No. 2 was legally proved or not. If it is held that the first marriage was not valid, the question with regard to the second marriage being legally performed or not would not arise and the non-applicants would be held to have been rightly acquitted. In a prosecution under Section 494 or 497 of the Indian Penal Code the question of marriage must be strictly proved and any inference, tacit or otherwise, for example, a tacit admission on the part of the husband or wife that they are husband and wife would not be sufficient to prove the factum of first marriage. In a case of this kind it is necessary for the complaint or some other person in his or her behalf to give strict proof of the marriage. Under Section 50 of the Evidence Act a presumption which arises under the first part of the section as to the relationship is particularly excluded in cases in which the relationship of husband and wife is in issue. In a country like India where system of registration of marriages is not common, it is absolutely necessary on the part of the prosecution to prove the facts and circumstances relating to the alleged ceremony of marriage so that the Court be in a position to determine whether legal marriage aid take place and the relationship of husband and wife came into existence. Amongst a large majority of people of this country marriage is concluded with much ceremonies and publicity and as such there cannot be any difficulty on the part of the prosecution for leading evidence to prove the legality of the marriage by adducing evidence. In the absence of such evidence, mere statement of the complaint that he was legally married is difficult to be relied upon. It is, therefore, necessary in such cases that good evidence must be led to give strict proof of legal marriage having been performed. I am supported in my view by a Full Bench decision of the Calcutta High Court in Empress v. Pitambur Singh (1880) ILR 5 Cal 566 and that of the Allahabad High Court in Emperor v. Buddhu (1920) ILR 42 All 401 : 21 Cri LJ 368.