How to prove second marriage in departmental enquiry?

The allegations against the present petitioner are that when his first wife was alive, he performed second marriage with Ranjana and reason for that his first wife Sandhya was issueless for so many years. The learned AGP initially relied on two documents i.e. agreement dated 2-9-2002 in the nature of leave-in-relationship between the petitioner and his second wife Ranajana and the copy of the family arrangement deed dated 22-6-2002 between the petitioner and his first wife Sandhya. On perusal of the same, it appears that the petitioner made a contract with Ranjana as his first wife was issueless. On perusal of the contents of the leave-in-relationship contract, it appears that it was agreed between the petitioner and Ranjana to reside as a husband and wife. If these contents of the leave-in agreement are read coupled with the evidence of the priest namely Shri Dyneshwar Joshi and other relevant document, it appears that those documents are sufficient to prove that the petitioner has contracted the second marriage with Ranjana in spite of subsisting of his first marriage with Sandhya.

6. Standard of proof in the departmental enquiries are on the basis of the preponderance of probabilities and to prove such marriage, standard of proof is not required as high as required to prove the offence punishable under section 494 of Indian Penal Code, nor the marriage of the petitioner with Ranjana is independently in dispute, therefore, no high degree proof is required to prove such marriage in the departmental enquiry.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 313 of 2011

Decided On: 12.04.2018

 Ashok Ramakant Choudhari Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

T.V. Nalawade and K.L. Wadane, JJ.

Citation: 2018(5) MHLJ 725

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Whether accused can be convicted for bigamy if he has admitted performance of second marriage?

As far as conviction and sentenced of the appellant

under Section­ 494 of the Indian Penal Code is concerned,
there is no evidence on record to establish the fact that, the
second   marriage   of   appellant   with   Mrs.   Shyamal   was
solemnized that means he   celebrated the marriage with
proper ceremonies and in due form. The Supreme Court in
the case of  Baburao Shankar Lokhande and another vs. The
State of Maharashtra and another reported in AIR 1965 S.C.
1564  has   held   that,   for     application   of   Section   494,
marriage   must   come     within   'solemnized   marriage'.
'Solemnize' means   to celebrate the marriage with proper
ceremonies and in due form.  Mere going through  certain
ceremonies  with intention to marriage  will not make the
ceremonies  prescribed by law or approved by customs. It is
further held that, it is essential for the purpose of Section
17 of the Hindu Marriage Act,   the marriage   applies on
account   of   the     Act,   should   have   been   celebrated   with
proper ceremonies and in due form. It is further held that
merely going through certain ceremonies with the intention
that the parties be taken to be married will not make the

ceremonies   prescribed   by   law   or   approved   by   any
established   custom.       In   the   present   case   to   prove   the
second marriage of the appellant the prosecution has relied
upon the admissions given by the Mr. Pandit Kamble (P.W.1)
father   of   the   deceased   Shyamal   and   Smt.   Ujwala
Suryawanshi (D.W.2) sister of the appellant. The Supreme
Court  in  the  case  of  Kanwal  Ram   and  others  vs.     The
Himachal Pradesh Administration  reported in  1966 SC 614
while relying on the ratio laid down by the Supreme Court
in the case of Bhaurao Shankar Lokhande (supra)   has
further held that, in a bigamy case, the second marriage as
a fact, that is to say, the essential ceremonies constituting
it, must be proved. Admission of marriage by the accused is
not evidence of it for the purpose of proving marriage in an
adultery or bigamy case. As noted herein above, there is no
evidence on record to establish the fact beyond reasonable
doubt that the appellant in fact had solemnized marriage
with Mrs. Shyamal on 1.4.2012, the view expressed by the
Supreme Court in the case of   Baburao Shankar Lokhande

(supra) is followed by it in the case of Kanwal Ram (supra),
in Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh reported
in   1971  (1) SCC 864 and in  Laxmi Devi  (Smt.) Satya
Narayan and ors. reported in (1994) 5 SCC 545.
9. There is no evidence on record to establish that, the
appellant   performed     second   marriage     by   following
necessary and essential ceremonies as per the mandate of
law. It is therefore, clear from the evidence on record that
the marriage between the appellant and the deceased Mrs.
Shyamal was not established beyond reasonable doubt by
the prosecution and consequently does not come within the
purview   of   Section   494   of   the   Indian   Penal   Code   even
though the first wife of the appellant Mrs. Sangeeta was
alive  when he married with Mrs. Shyamal in April, 2012.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL  APPELLATE JURISDICTION
         CRIMINAL APPEAL NO.672 OF 2016
WITH
               CRIMINAL APPLICATION NO.197 OF 2018

Vidyasagar  Irappa Mane, Vs The State of Maharashtra,

                                     CORAM: A.S.GADKARI, J. 
 DATE :13TH APRIL, 2018.

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Whether complaint for offence of bigamy can be filed by second wife?

Having noticed the agony, trauma etc. which would be suffered by the woman with whom second marriage is performed, if the marriage is declared to be void, let us make an attempt to ascertain the purpose of enacting Section 494 IPC. This Section introduces monogamy which is essentially voluntary union of life of one man with one woman to the exclusion of all others. It enacts that neither party must have a spouse living at the time of marriage. Polygamy was practiced in many sections of Hindu society in ancient times. It is not a matter of long past that in India, hyper gamy brought forth wholesale polygamy and along with it misery, plight and ignominy to woman having no parallel in the world. In post vedic India a King could take and generally used to have more than one wife. Section 4, of Hindu Marriage Act nullifies and supersedes such practice all over India among the Hindus. Section 494 is intended to achieve laudable object of monogamy. This object can be achieved only by expanding the meaning of the phrase "aggrieved person". For variety of reasons the first wife may not choose to file complaint against her husband e.g. when she is assured of re-union by her husband, when husband assures to snap the tie of second marriage etc. Non-filing of the complaint under Section 494 IPC by first wife does not mean that the offence is wiped out and monogamy sought to be achieved by means of Section 494 IPC merely remains in statute book. Having regard to the scope, purpose, context and object of enacting Section 494 IPC and also the prevailing practices in the society sought to be curbed by Section 494 IPC, there is no manner of doubt that the complainant should be an aggrieved person. Section 198(1) (c) of the Criminal Procedure Code, amongst other things, provides that where the person aggrieved by an offence under Section 494 or Section 495 IPC is the wife, complaint on her behalf may also be filed by her father, mother, sister, son, daughter etc. or with the leave of the Court, by any other person related to her by blood, marriage or adoption. In Gopal Lal v. State of Rajasthan MANU/SC/0109/1979 : (1979) 2 SCC 170 this Court has ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed. Though Section 11 of the Hindu Marriage Act provides that any marriage solemnized, if it contravenes the conditions specified in Clause (i) of Section 5 of the said Act, shall be null and void, it also provides that such marriage may on a petition presented by either party thereto, be so declared. Though the law specifically does not cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose of precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent Court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband.

Even otherwise, as explained earlier, she suffers several legal wrongs and/or legal injuries when second marriage is treated as a nullity by the husband arbitrarily, without recourse to the Court or where declaration sought is granted by a competent Court. The expression "aggrieved person" denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant. Section 494 does not restrict right of filing complaint to the first wife and there is no reason to read the said Section in a restricted manner as is suggested by the learned Counsel for the Appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by wife living and not by the woman with whom subsequent marriage takes place during the life time of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom second marriage takes place which is void by reason of its taking place during the life of first wife.

A bare reading of the complaint together with statutory provisions makes it abundantly clear that the Appellant having a wife living, married with the Respondent No. 2 herein by concealing from her the fact of former marriage and therefore her complaint against the Appellant for commission of offence punishable under Section 494 and 495 IPC is, maintainable and cannot be quashed on this ground.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1428 of 2011.

Decided On: 21.07.2011

 A. Subash Babu

Vs.

 State of A.P. and Anr.

Hon'ble Judges/Coram:

J.M. Panchal and H.L. Gokhale, JJ.

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When person who is accused in matrimonial offence can be permitted to go abroad?

I have heard learned counsel for the petitioners as well as
counsel for the complainant and I am of the opinion that the main allegations
under Section 494 IPC were against Pakhar Singh who had allegedly
married Mohinder Kaur in the year 1971. The complaint admittedly had
been filed after a period of about 37 years. There is no specific day, date
and time mentioned in the complaint regarding first or second marriage. The
culpability of petitioner No.2-Mohinder Kaur is to be determined on the
basis of her knowledge of the first marriage besides the establishment of the
factum of second marriage being void. The fact remains that she cannot be
penalized for the delay being caused in the adjudication of the private
complaint which has been filed after a gap of 37 years. The property of
Pakhar Singh is situated in India. Petitioner No.2 Mohinder Kaur has got a
claim in the same. The litigation regarding her property is pending. It is a
settled principle of law that an accused will be deemed to be innocent till
proved guilty but at the same time life and liberty of an accused has not to be
prejudiced on account of any act of the Court. Maintainability of the
complaint after a period of 37 years would certainly be a debatable issue.
This Court is not expressing any opinion regarding the rights of the parties in
the property of Pakhar Singh. Striking a balance between the liberty of
petitioner No.2 and her status of innocence during the pendency of the trial
vis-à-vis the right of complainant to prosecute petitioner No.2 by

establishing the allegations to logical end, I deem it appropriate to permit
petitioner No.2, a lady, to leave India for a period of six months in order to
enable her to visit her home in Canada. It is ordered that petitioner No.2 will
be required to deposit a sum of Rs. 5 lacs with the trial Court and surety
bond for a sum of Rs.1 lac to the satisfaction of the Court to return after six
months which will be determined by the Court. Her passport will be
released to her on furnishing the above said surety and security. It is ordered
that the amount of Rs.5 lacs deposited in the Court would be released to the
complainant besides the right of the State to forfeit the amount in case the
conditions of the bond are violated by petitioner No.2-Mohinder Kaur and
she does not return back after a period of six months.
 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
 CRM M-7234 of 2015(O&M)
Date of Decision: November 9, 2015
Pakhar Singh and another

 Vs.
State of Punjab and anr.

CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI.

Citation: 2016 ALLMR(CRI)JOURNAL287

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When Marriage performed without priest is valid?

The Hindu religion by itself is pluralism in character and thus, various forms of marriages have traditionally existed depending on the area and the custom prevalent therein.   Section 7-A provides for particular kind of marriages i.e. suyamariyathai marriages among two Hindus.   It has also stood the test of time now for half a century. In such matters of personal law, the option given to the parties  cannot be said to be one which is hit by any provisions of the Constitution of India.  
In S.Nagalingam v. Sivagami, reported in AIR 2001 SC 3576, the question which falls for consideration was whether the second marriage entered into by the appellant therein with the second accused was a valid marriage under Hindu Law, so as to constitute an offence under Section 494 IPC.  A contention was raised stating that Saptapadi is an important ritual which forms part of the marriage ceremony, having not been performed and therefore, there was no valid marriage in accordance with the Hindu rites.    While deciding the matter, the Hon'ble Supreme Court took into consideration Section 7-A of the Hindu Marriage Act, 1955, as inserted by the State of Tamil Nadu and pointed out that Section 7-A applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons.  The main thrust of this provision is that the presence of a Priest is not necessary for the performance of a valid marriage.  The parties can enter into a marriage in the presence of relatives or friends or other persons and each party to the marriage should declare in the language understood by the parties that each takes other to be his wife or, as the case may be, her husband, and the marriage would be completed by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon any finger of the other or tie a thali.  Any of these ceremonies, namely garlanding each other or putting a ring upon any finger of the other or tying a thali would be sufficient to complete a valid marriage.  Further, the Hon'ble Supreme Court pointed out that Sub-section (2)(a) of Section 7-A specifically says that notwithstanding anything contained in Section 7, all marriages to which this provision applies and solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967 shall be good and valid in law.  Further, Sub-section (2)(b) says that notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967 or in any other law in force immediately before such commencement or in any judgment, decree or order of any Court, all marriages to which this Section applies solemnized at any time before such commencement, shall be deemed to have been valid. 
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.10.2015
CORAM
 MR.SANJAY KISHAN KAUL, CHIEF JUSTICE
AND
 MR.JUSTICE T.S.SIVAGNANAM

W.P.No.34788 of 2015
and
M.P.No.1 of 2015

A.Asuvathaman vs Union of India,
 Citation;AIR 2016 Madras 17

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Whether husband can deny his marriage with wife on the ground that she has not prosecuted him U/S494 of IPC?

A stress was given by 
the learned counsel for the husband on the fact that Nirmala has not 
filed any proceedings u/s 494 of the IPC, that itself demonstrates the 
hollowness of the claim made by her about her marriage.     Merely 
because a Criminal Complaint u/s 494 of the IPC is not filed, that 

does not dis­entitle the rightful claimant of the maintenance.     The 
wife   was   claiming   her   maintenance.       It   is   quiet   possible   that   she 
might not interested in the criminal prosecution of her husband but 
that does not mean that there is no marriage.


IN THE HIGH COURT OF JUDICATURE OF BOMBAY
      BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.486 OF 2001
WITH 
   CRIMINAL REVISION APPLICATION NO.354 OF 1999

Datta S/o Dagadu Paul,

VERSUS

Nirmala W/o Datta Paul,

( CORAM : V.M.DESHPANDE, J.)
    DATE  : 17/07/2014
Citation; 2015ALLMR(CRI)1083

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Whether married man performing second marriage by suppressing first marriage is liable for prosecution?

 Section 495 IPC provides that if a person committing the offence defined in Section 494 IPC conceals from the person with whom subsequent marriage is contracted, the fact of the former marriage, the said person is liable to punished as provided therein. The offence mentioned in Section 495 IPC is an aggravated form of bigamy provided in Section 494 IPC. The circumstance of aggravation is the concealment of the fact of the former marriage to the person with whom the second marriage is contracted. Since the offence under Section 495 IPC is in essence bigamy, it follows that all the elements necessary to constitute that offence must be present here also. A married man who by passing himself off as unmarried induces an innocent woman to become, as she thinks his wife, but in reality his mistress, commits one of the grossest forms of frauds known to law 

and therefore severe punishment is provided in Section 495 IPC. Section 495 begins with the words "whoever commits the offence defined in the last preceding Section........" The reference to Section 494 IPC in Section 495 IPC makes it clear that Section 495 IPC is extension of Section 494 IPC and part and parcel of it. The concealment spoken of in Section 495 IPC would be from the woman with whom the subsequent marriage is performed. Therefore, the wife with whom the subsequent marriage is contracted after concealment of former marriage, would also be entitled to lodge complaint for commission of offence punishable under Section 495 IPC. Where second wife alleges that the accused husband had married her according to Hindu rites despite the fact that he was already married to another lady and the factum of the first marriage was concealed from her, the second wife would be an aggrieved person within the meaning of Section 198 Cr. P.C. If the woman with whom the second marriage is performed by concealment of former marriage is entitled to file a complaint for commission of offence under Section 495 IPC, there is no reason why she

would not be entitled to file complaint under Section 494 IPC more particularly when Section 495 IPC is extension and part and parcel of Section 494 IPC.

For all these reasons, it is held that the woman with whom second marriage is contracted by suppressing the fact of former marriage would be entitled to maintain complaint against her husband under Sections 494 and 495 IPC.

Supreme Court of India

A.Subash Babu vs State Of A.P.& Anr on 21 July, 2011

Bench: J.M. Panchal, H.L. Gokhale

Reportable

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Whether Hindu marriage will be valid even though ritual of "Saptapadi" is not carried out?

Under such circumstances, the provisions of Section 7, namely, the State Amendment inserted in the Statute are applicable and there was a valid marriage between the appellant and Kasturi. Moreover, neither complainant nor the appellant had any case that for a valid marriage among the members of the community to which they belong, this ceremony of "Saptapadi" was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi, i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

"Saptapadi" was held to be an essential ceremony for a valid marriage only in cases where it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had no such case that "Saptapadi" was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section 7 are applicable to the parties. In any view of the matter, there was a valid marriage on 18.6.1984 between the appellant and the second accused, Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6.9.1970.1

Supreme Court of India

S. Nagalingam vs Sivagami on 31 August, 2001

Equivalent citations: AIR 2001 SC 3576, 2001 (2) ALD Cri 634

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Whether court can direct police to register offence of bigamy punishable U/S 494 of CPC?

 In so far as present case is concerned, it is not in dispute that Section 494 of I.P.C. is a non-cognizable offence and, therefore, in view of bar under Section 198(1) of Cr.P.C., the court could not take cognizance unless a complaint is made by the person aggrieved by the offence. In case of an offence punishable under Section 494 of I.P.C., the aggrieved person would be wife or a complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or any relative or person mentioned in Sub-Clause "c" of Sub-Section 1 of Section 198 of the Cr.P.C. It is thus clear that even after the investigation if a Police report is submitted, the learned Magistrate would not be in a position to take cognizance on the basis of the said report since cognizance could not be taken on a complaint made by anyone else other than the person aggrieved by the offence. In that view of the matter, the Criminal Application deserves to be allowed.

Bombay High Court

Sow. Swati Sachin Mahajan ... vs The State Of Maharashtra on 4 May, 2007

Equivalent citations: I (2008) DMC 79

B.R. Gavai, J.

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What are necessary conditions for proof of offence of bigamy?

For an offence under Section 494 both the marriages must be legal and valid. Unless these ingredients of Section 494 are satisfied, the accused cannot be punished for an offence of bigamy under the same. If the said section requires a strict proof of the validity of the second marriage, it is not understandable why such a strict proof is not required for the first marriage also. It would, therefore, follow that if for the proof of the second marriage, it is necessary for the complainant to prove all the essential requirements of a legal and valid marriage, then by the same standard and by the same reasoning it is necessary for him to prove as a fact all the essential requirements to show that the first marriage was also performed validly.

Bombay High Court

Godawari vs State Of Maharashtra And Others on 24 September, 1984

Bench: H Dhabe

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Whether complaint for offence of bigamy u/s 494 of IPC can be filed by second wife?

This Court finds that the High Court has quashed the proceedings pending before the learned Magistrate under Section 498A of IPC on the spacious ground that the marriage of the appellant with the respondent no. 2 is void and as respondent no. 2 is not the wife, she was not entitled to lodge first information report with the police for commission of offence u/s. 498A IPC and on the basis of police report, cognizance of the said offence against the appellant could not have been taken by the learned Magistrate. Such reasoning is quite contrary to the law declared by this Court in Reema Aggarwal Vs. Anupam and others (2004) 3 SCC 199. After examining the scope of Section 498A of the Indian Penal Code and holding that a person who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen of contention that since there was no valid marriage the question of dowry does not arise, this Court speaking through Hon'ble Mr. Justice Arijit Pasayat, has held as under:-

Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting

legalistic approach would encourage harassment to a woman over demand of

money. The nomenclature dowry does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations

who are covered by Section 498A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children

of void and voidable marriages. Can it be said that the legislature which was conscious

of the social stigma attached to children of void and voidable marriages closed its eyes to

the plight of a woman who unknowingly or unconscious of the legal consequences

entered into the marital relationship? If such

restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding

harassment to a woman over demand of

money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to any person whose marriage with such husband or wife has been

declared void by a court of competent jurisdiction". It would be appropriate to construe the expression husband to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the

woman concerned to cruelty or coerces her in

any manner or for any of the purposes 

enumerated in the relevant provisions-

Sections 304B/498A, whatever be the

legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The

absence of a definition of "husband" to specifically include such persons who

contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as husband is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions."

17. In view of firm and clear law laid down on the subject, this Court is of the confirmed view that the High Court was not justified at all in quashing the proceedings initiated against the appellant under Section 498A of the Code on the ground that the respondent no. 2 was not wife within the meaning of Section 498A of the IPC and was not entitled to maintain complaint under the said provision. 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1428 OF 2011

(Arising out of S.L.P. (Crl.) No. 6349 of 2010)

A.Subash Babu vs State Of A.P.& Anr on 21 July, 2011

Bench: J.M. Panchal, H.L. Gokhale

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