KSHITISH CHANDRA CHAKRABURTY Vs. EMPEROR

JUDGEMENT

(1.) The appellants Kshitish Chandra Chakraburty and Haripada Bhattacharyya have been convicted by the learned Assistant Sessions Judge, Pabna, under Secs.109/496, 419/34, and 496, I.P. C, on the unanimous verdict of the jury before whom the trial of the appellants was held and have been sentenced as follows: The appellant Kshitish Chandra Chakraburty to five years rigorous imprisonment under Secs.109/ 496, I.P.C., and two years rigorous imprisonment under Secs.419/34, the sentences to run concurrently; the appellant Haripada Bhattacharyya to rigorous imprisonment for four years, under Section 496, I.P.C., and rigorous imprisonment for one year under the Secs.419/34 I.P.C., sentences running concurrently. The case against the appellants was started by a written ijahar of the complainant Surabala Debi received from the Sub-Divisional Officer of Pabna through the Assistant Sub-Inspector of Pabna by post treated as the first information. It was stated in the aforesaid first information that the complainant was a Barendra Brahmin widow coming from a kulin and respectable family; that her daughter Jogmaya Debi was aged fifteen years; that the accused persons Kshitish Chandra Chakraburty and Haripada Bhattacharyya, in collusion with one another, represented to the informant that they were high class Brahmins and arranged for the daughter's marriage; that after the marriage was celebrated the informant came to learn that the accused persons belonged to a class of Brahmins with whom they had no social intercourse; the accused persons were flow class Barna Brahmins and priests of Kaibartas, and there existed no social connexion between the accused and the Barendra Brahmins; that the high class Brahmins do not use the water touched by them. In her statement on solemn affirmation before the Magistrate who took cognizance of the offence complained of, Surabala Debi said that: She heard from some, persons that accused Haripada was a jele Brahmin and that had she known that the accused Haripada was a jele Brahmin, she would not have given her daughter in marriage with him.

(2.) The charge framed against Kshitish Chandra Chakraburty was that he abetted the commission of the offence of a marriage ceremony fraudulently gone through without lawful marriage by Haripada Bhattacharyya, which was committed in consequence of his abetment (Ss. 109/496, I.P. C). Haripada Bhattacharyya was charged with having committed the offence of fraudulently going through the ceremony of being married to Jogmaya Debi, knowing that he was not lawfully being married ( Section 496,1. P.C.). The accused persons were further charged under Secs.419/34, I.P.C., inasmuch as they had cheated Surabala Dabi by representing that they were Barendra Brahmins and intentionally induced her to give her daughter Jogmaya Debi in marriage, which caused harm to Surabala Debi in mind and reputation. At the trial evidence was led on the side of the prosecution that the accused persons were Barna Brahmins with whom Barendra Brahmins could not have intermarriage, that Haripada's father was the priest of Jelia Kaibartas. Evidence was also given that Surabala was deceived by the representation of the accused persons which induced her to marry her daughter Jogmaya to Haripada, which marriage would not have been celebrated but for the false representation. It was also in evidence that Surabala Debi suffered harm in mind and reputation and was excommunicated after the marriage of her daughter Jogmaya with Haripada. The evidence of Surabala and other witnesses on the side of the prosecution was that she was excommunicated from society. On the charge under Section 496, I.P. C, after the material portion of the evidence was summarised, the jurors were directed by the Judge as follows: As regards Section 496 the first ingredient is whether accused (Haripada) went through the ceremony of marriage; there should not be difficulty. The prosecution case is that happened. Evidence has also been led to show that all the ceremonies were performed. The mother's mind and wife's mind have been noticed and explained. Haripada claims Jogmaya as his wife. Jury to form opinion. As regards the second element whether Haripada knew then that he was lawfully married by merely going through the ceremony, the jury must be careful. Marriage between sub-castes or sub-sects is lawful. But marriage between different castes is not valid and lawful. Point therefore is whether Haripada was altogether of different caste from Jogmaya. If he was so, then he was not lawfully married.... The jury must consider it with a view to find out if Barna was altogether a different caste, if there was lawful marriage, if Barna was a mere sub-caste, and if he was lawfully married.

(3.) On this part of the case before the Court, it must be taken to be established that there is no rule of Hindu law which prevents a man and woman belonging to two sub-castes of a twice- born class from entering into a lawful marriage. The Shastras dealing with the Hindu law of marriage do not contain any injunction forbidding marriages between persons belonging to different divisions of the same Barna: Gopi Krishna Kasaudban V/s. Mt. Jaggo . The Judge's direction to the jury in general terms, as mentioned above, on the question of law arising for consideration in the case, may be taken to be in consonance with the pronouncement of their Lordships of the Judicial Committee of the Privy Council referred to above; but it appears to us that on the evidence, as led by the prosecution, the Judge should have directed the jury that as the marriage in question was between persons of two different sub-castes, and there being no evidence to indicate that Haripada and Jogmaya belonged to different castes, that as a marriage between two different divisions of the same caste, the marriage which was admitted was not invalid in law. The Judge should further have held on the evidence before him, that there was no case to go to the jury so far as the question of validity of the marriage of Jogmaya Debi and Haripada Bhattacharyya under the Hindu law was concerned.