RABINDRA KUMAR BHATTACHARJEE Vs. SMT. PRATIVA BHATTACHARJEE

JUDGEMENT

(1.) SHORN of verbiage, the facts relevant to the present revision petition filed by the convict Shri Rabindra Bhattacharjee are that he was married to the complainant Prativa Bhattacharjee, M. A., B.T., in July 1954 at Hoogly, that they could not pull on smoothly as husband and wife despite the fact that they were blessed with a son, Rantu by name, on 23 -8 -1955 which was soon after the marriage, and that, as alleged by the complainant, her husband entered into second marriage with Anjali Bhattacharjee, a daughter of Gopal Chakraborty of Agartala. On 6 -11 -1961, Prativa filed a complaint in the Court of Sub -divisional Magistrate at Agartala. Rabindra, the husband of the complainant, was charged in course of time by that Magistrate under Section 494 I. P. C. while Anjali and her father Gopal Chakraborty were both charged under Section 494 read with Section 109 I. P. C. By its judgment dated 20th of May, 1963, the trial Court acquitted Anjali and her father but convicted Rabindra under Section 494 I. P. C. and sentenced him to 11/2 years' simple imprisonment and a fine of Rs. 500/ -, or, in default, 6 months' additional simple imprisonment. Having felt aggrieved Rabindra went in appeal to the Sessions Court. The learned Sessions Judge upheld the conviction of the accused by his judgment dated 18 -3 -1964, but reduced the sentence to 6 months' simple imprisonment, and a fine of Rs. 500/ -, or, in default, 6 months' further simple imprisonment. In the instant revision petition. Rabindra challenges the correctness of his conviction and sentence.

(2.) THOUGH in the trial court and before the Sessions Judge the accused Rabindra had vehemently asserted that he laboured under bona fide mistake that his first wife Prativa was not living when he married Anjali on 28 -10 -1959, but in this Court Shri M.C. Chakraborty, appearing for him, did not raise that point. Hence, as at present, that is no longer an issue between the parties. Shri M.C. Chakraborty also did not contest the proposition that his client and Prativa were validly married in July, 1954, and that Prativa bore a male child to Rabindra in August 1955. The only point urged by Shri Chakraborty was that the complainant Prativa had miserably failed in her attempt to establish that Rabindra had been validly married to Anjali on 28 -10 -1959. In this connection, he invited the Court's attention to Section 7 of the Hindu Marriage Act, 1955, and also placed reliance on Section 50 of the Indian Evidence Act, besides relying heavily on the evidence led in the case and the propositions of law enunciated in the authorities : 1965CriLJ544 , Bhaurao Shankar v. : 1966CriLJ472 , Kanwal Ram v. Himachal Pradesh Administration and, AIR 1965 J&K 105, Phankari v. State. Shri N.L. Choudhury, representing the complainant, submitted, on the other hand, that the factum and validity of marriage between Anjali and Rabindra were never raised in either of the two courts below and so it is not open to the convict to raise a new issue in revision petition. Shri Choudhury vigorously contended that apart from that legal objection raised by him there is abundant evidence on the record to establish the factum as also the validity of the marriage between Rabindra and Anjali. The rejoinder of Shri Chakraborty was that Rabindra had raised, as a matter of fact, the question of the validity of his marriage with Anjali in the trial court. However, he was unable to take the stand that that point was also emphasised before the Sessions Judge. After going through the judgments of the Sub -divisional Magistrate and the Sessions Judge, as also the statement made by the accused under Section 342 Cr. P. C. I have reached the conclusion that neither factum nor validity of the marriage between Rabindra and Anjali was an issue, active or mute, between the parties in the court of Sessions Judge and that the validity, but not the factum, of that marriage was challenged at the stage of arguments but never before in the trial Court.

(3.) ON page 24 of its judgment the learned trial court happened to observe that the prosecution had proved both the marriages, that the accused had raised no objection respecting those marriages, that he (the accused) had actually admitted those marriages, and that the only defence to the charge, - in fact, was that he had married for the second time believing in good faith that his first wife was not amongst the living. Then, on page 25, it is stated that the defence counsel had raised the issue that the prosecution must prove both the marriages to bring the case within the purview of Section 494 I. P. C. that he had cited a Privy Council authority in support of that proposition, and that that ruling was unavailing to him as there was no dispute regarding "the facts of the marriage". On the same page the court stated further, while dealing with the argument of the defence counsel based on the authority reported in : AIR 1960 Bom 393, Malan v. State of Bombay, that that ruling also did not advance the defence case "as no challenge on the point of marriage, by putting any kind of suggestion, was made by the defence". It was stated further that, in fact, the accused had admitted both the marriages apart from the evidence led by the complainant to establish the factum of those marriages. In the penultimate para on that page, the trial court once again observed that the prosecution had proved both the marriages and that "no challenge was made on the point of marriage".