(GEDALU) NARAYANA Vs. EMPEROR

JUDGEMENT

(1.) The complaint in this case was to the effect that A-2 was the legally married wife of the complainant; that they had lived together as man and wife for some time after A-2 attained puberty; that A-2 owing to ill advice of her parents A-3 and A-4 left complainant and went to live with A-3 and A-4; that complainant filed a suit for restitution of conjugal rights against A- 2, A-3 and A-4 and got a decree; and that with a view to dofeat the execution of this decree A-1 married A-2 on 5 June 1931, aided and abetted by A-3 and A-4 knowing that A-2 continued to be the legally married wife of the complainant. A complaint Under Secs.494 and 114, I.P.C., was therefore laid against the four accused (presumably Under Section 494 against A-1 and A-2 and Under Section 494 and Section 114, I.P.C., against A-3 and A-4).

(2.) The complaint was dismissed by the learned Subdivisional Magistrate on the ground that the second marriage did not come within the purview of Section 494, I.P.C. A revision petition presented to the District Magistrate was summarily rejected and against this order the present revision petition is filed. I propose to confine myself to one matter only because it is the main ground urged, and because, as I find myself in agreement with the petitioner's contention, it is sufficient for the purpose of disposing of this revision petition. It is obviously undesirable that a revisional Court should at this stage embarrass the trial by deciding anything more than is necessary to justify further investigation into the complaint. So far as the complaint and sworn statement go it seems clear that the second marriage was celebrated without any formal dissolution of the first marriage; it was against the complainant's wishes, and the latter had not apparently been returned his marriage expenses, etc. If the custom of the caste, as stated by complainant himself, is one that the Courts will recognize, then I would not be prepared to interfore in revision with the order of dismissal, for complainant said as follows in his sworn statement: If the wife leaves her first husband and before her second marriage if the parents compensate the first husband, a divorce deed is executed by the first husband. Even after the second marriage, if the husband is compensated, a divorce deed is given and the second marriage is considered as valid as any other legal marriage.

(3.) In the face of this statement by the complainant it is not necessary to consider the evidence of the two Court witnesses examined. The first supports it. The second only speaks about a second marriage after divorce. If then the law will uphold a custom of remarriage by the wife during the first husband's life time, without a divorce or its equivalent the Subdivisional Magistrate was perfectly right in dismissing the complaint. But it is argued before me that such a custom is not recognizable by the Courts as being against public policy. Four cases cited for the petitioner, Reg V/s. Sambhu Raghu [1876] 1 Bom. 347. The Government of Bombay V/s. Gangu [1879] 4 Bom. 330, Empress V/s. Unni [1881] 6 Bom. 126 and In re Millard, [887] 10 Mad. 218 are not, I consider, in point. In Reg V/s. Sambhu Raghu [1876] 1 Bom. 347 the finding was that it was not proved that there was a caste custom by which a woman could claim the right to marry again because her husband was a leper and that a decision of a panchayat authorizing her to do so would not validate it. The Government of Bombay V/s. Gangu [1879] 4 Bom. 330 decided that the marriage of a woman to her first Hindu husband was not dissolved by her embracing Islam and marrying a Mahomedan.