AZIZ KHAN Vs. EKRAM HUSSAIN

JUDGEMENT

(1.) This is an application in revision against an appellate order of the Sessions Judge of Shahabad acquitting Ekram Hussain of an offence punishable under Section 497, I.P.C. The facts found are that the opposite party Ekram Hussain had kept living with him as his wife Mt. Sayidan who had before that been living with Aziz Khan, the complainant, as his wife. The prosecution case was that Aziz and Sayidan were legally married about 1926 and had never been divorced. The defence in the trial Court was that there had been a divorce terminating the marriage of Aziz and Sayidan. This contention was negatived by both Courts. It had not been denied before the trial Court that Aziz and Sayidan were legally married, nor was this fact challenged in the memorandum of appeal to the Sessions Judge. But the learned Judge after observing quite correctly that the law requires in a prosecution under Section 497, I.P.C., that the alleged marriage must be strictly proved held, that the evidence on record was not sufficient to prove that there was a legal marriage because the facts were not stated from which the Court could judge whether all the ceremonies necessary for a valid marriage under the Mahomedan law were performed or not.

(2.) In revision it is contended that the Sessions Judge has gone beyond the law in rejecting the evidence as insufficient and that there has been a miscarriage of justice. It was laid down in the Full Bench decision of the Calcutta High Court in Queen-Empress V/s. Pitambar Singh (1880) 5 Cal 566, that in criminal cases such as adultery where marriage is an ingredient in the offence, the fact of the marriage must be strictly proved in the regular way. This implies that the marriage must be proved as an event which took place and not merely as the state in which the parties were living, and if it is sought to prove it by oral evidence that evidence must, in accordance with Section 60, Evidence Act, be direct, that is to say, must be the evidence of an eyewitness. I do not understand the decision as laying down that any particular number of witnesses must be examined to prove the fact of marriage between two persons, for that would be in contravention of what is expressly laid down in Section 134, Evidence Act, that no particular number of witnesses shall in any case be required for the proof of any fact. In Queen Empress V/s. Subbarayan (1886) 9 Mad 9, where the husband and the wife both deposed that the marriage between them had as a fact taken place, that evidence was accepted as sufficient and the judgment of acquittal by the lower Court was set aside. In Queen-Empress V/s. Dal Singh, (1898) 20 All 166, on the other hand, where a conviction under Section 498 had been obtained in the lower Court with only the evidence of the husband and the wife to prove their marriage it was observed that: The Court should require some better evidence of the marriage than the mere statement of the complainant and the woman.

(3.) That was a case in which apparently it was suggested for the defence that the woman was only the mistress of her alleged husband and the High Court remanded the case for further evidence. But the observations made there as to the desirability of having better evidence on the disputed point were clearly made with reference to the facts of the particular case. As was pointed out in Emperor v. Nazir Khan AIR 1914 All 214, the above decisions did not lay down that there was any requirement of law that the fact of marriage could be proved only in some particular way. The opposite party has referred to two decisions of the Calcutta High Court: Badal Aurat V/s. Queen-Empress (1892) 19 Cal 79. and Jogu Bibi v. Mesel Shaikh, (1936) 164 IC 957. Both these were bigamy cases in each of which there was a disputed question regarding an, alleged marriage to a minor girl. The High Court held on the facts in the former case that there was not sufficient evidence of the legality of the first marriage and that if it had been legal, it was open to the girl on attaining puberty to repudiate the betrothal and contract a valid marriage with another person. No doubt in that particular case special caution was necessary in accepting the alleged validity of a marriage repudiated by the girl herself on attaining puberty. In Jogu Bibi V/s. Mesel Shaikh, (1936) 164 IC 957 again the alleged marriage was of a minor girl and was repudiated by her after attaining puberty. The Court here as in the other case examined the details of the evidence as to what ceremonies were performed and determined that a valid marriage was not established. These cases in no way lay down that the evidence of a husband and a wife that a marriage in fact took place between them cannot be accepted as sufficient to prove that fact, nor will any presumption against the validity of such a marriage arise unless there is at least some suggestion that a particular part of the ceremony necessary to its validity was lacking. The Sessions Judge was, therefore, in error if he thought that the depositions of the husband and wife could not in law be accepted as sufficient to prove the marriage. No doubt the question whether as witnesses deposing to the fact of a marriage they were truthful or untruthful was a question to be determined by the Sessions Judge and if he felt himself in a difficulty it was open to him to follow the course taken in Queen-Empress V/s. Dal Singh, (1898) 20 All 166 above cited and call for further evidence. The application will be allowed, the judgment and order of acquittal set aside and the appeal remanded to the Sessions Judge of Shahabad to be re-hea\rd and disposed of according to law.