SMT. LAXMI DEVIversusSATYA NARAYAN AND ORS.

A                           SMT. LAXMI DEVI •
                                   v.
                        SATYA NARAYAN AND ORS.

                                AUGUST 9, 1994

B                    [P.B. SAWANT ANDS. MOHAN, JJ.]

         Indian Penal Code 186{)-Section 494--Bigam)-'Saptapadi' Essential
    ceremony of Hindu maniage-Absence of proof-Factum of second marriage
    cannot be held to have been made out.
c         Constitution of India-Art. 142-Ini:Jian Penal Code, 186{)-Section
    494-/Jigamy.,.-Jlactum of second marriage not proved-Husband living with
    alleged second wife-Award of Compensation to first wife in order to do
    complete ju_stice-Awarded.

D         The first respondent was charged with bigamy an offence punishable
    under Section 494 IPC. The Trial Court held that the prosecution had not
    proved through proper witnesses 'Saptapadi' to establish the factum of
    second marriage of accused. The High Court found that it was not a fit case
    for grant of leave to appeal. The present appeal is filed against the im-
    pugned order.
E
          In criminal appeal it was contended that though 'Saptapadi' has not
    been proved, there is enough evidence to establish the factum of second
    marriage and this is enough to bring out the charge. The respondents
    contended that it is 'Saptapadi' which establishes the factum of marriage,
    being an essential ceremony and without proof of such a ceremony, a case
F   for bigamy cannot arise.

          Disposing of the matter, this Court

          HELD: 1.1. In the absence of proof of such a ceremony of'Saptapadi',
    the factum of second marriage cannot be held to have been made out.
G                                                                     [493-GJ
          Kanwal Ram v. H.P. Administration, AIR (1966) SC 614 and Priya Bal
    v. Suresh Chandra, AIR (1971) SC 1153, relied on.

          1.2. In the instant case, the first respondent is undoubtedly living
H   with respondent no. 4 as husband and wife. Merely because the appellant
                                        490
                LAXMIDEV!v. S. NARAYAN [MOHAN,J.]                       491

is nodn a position to prove the factum of second marriage punishable A
under Section 494 of the Indian Penal Code that does not mean the
appellant should be left in the. lurch. Exercising powers under Article 142
of the constitution of India appellant is awarded compensation which will
bring some solace when her life is dismally dark. The compensation of Rs.
25,000 shall be paid by the accused to the appellant. [493-H; 494-A-B]
                                                                               B
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
314 of 1981.

     From the Judgment and Order dated 18.7.78 of the Rajasthan High
Court in S.B. Cr!. Leave to Appeal No. 107 of 1978.                            C
      Goodwill Indeevar for the Appellant

      Vash~u Mathur and B.S. Jain for the Respondents.


      The Judgment of the Court was delivered by                               D
      MOHAN, J. The first respondent was charged for an offence under
Section 494 l.P.C., respondent No. 7 under Section 494 read with Section
109 of l.P.C. and respondent Nos. 2 to 6 and 8-9 under Section 494 read
with Section 120B of I.P.C. The trial took place before Judicial Magistrate E
No. 1, Bikaner. It was held that the prosecution had not proved through
proper witnesses 'Sapatpadi' to establish the factum of second marriage of
accused (respondent No. 1). The High Court found that it was not a fit
case for grant of leave to ~ppeal. Thus, the present criminal appeal against
the impugned order dt.18.7.1978 was passed by High Court.
                                                                               F
      The only point urged before us is that though 'Sapatpadi' a fact has
not been proved, there is enough evidence to establish the factum of second
marriage. There are eye witnesses who have seen the marriage. That is
enough to bring out the charge. The prmciple relating to 'Sapatpadi' taking
of seven steps before the sacred fire cannot be insisted upon if as of fact    G
marriage is established. Therefore the courts below are wrong.

       The learned counsel for the respondents would urge that the courts
·below have correctly appreciated the legal position. It is 'Sapatadi' which
 establishes the factum of marriage,being  an essential ceremony. Withont
 proof of such a ceremony, a"case for bigamy cannot arise.                     H
    492                 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A         We have carefully gone through the evidence. The evidence of PW2
    to PW5 does not establish the essential ceremony of marriage viz.
    'sapatpadi'.

          This Court in Kanwql Ram v. H.P. Administration, AIR 1966 SC 614
    has held as under :
B
                "It was contended for the appellants that this evidence was not
           enough to show that the marriage of Kubja and Kanwal Ram can
           be said to have been performed. We think this contention is
           justified. In Bhaurao Shankar Lokhande v. State of Maharashtra,
c          Crl. Appeal No. 178 of 1963, unreported; (Sinee reported in AIR
           (1985) SC 1564), this Court held that a marriage is not proved
           unless the essential ceremonies required for its solemnisation are
           proved to have been performed. The evidence of the witness called
           to prove the marriage ceremonies, showed that the essential
            ceremonies had not been performed. So that evidence cannot
D          justify the conviction. The trial Court also took the same view. The
           learned Judicial Commissioner does not seem to have taken a
            different view.

                The learned Judicial Commissioner, however, though that apart
            from the evidence about the marriage ceremonies earlier men-
E
            tioned there was other evidence which would prove the second
            marriage. He first referred to a statement by the appellant Kanwal
            Ram that he had sexual relationship with Kubja."

          The same principle is reiterated in Priya Bal v. Suresh Chandra, AIR
F   (1971) SC 1153 as under :

                "According to Mr. Majumdar, when once the priest has given
            evidence to the effect that the marriage between the respondent
            and Sandhya Rani has been performed, it follows that all the
            essential ceremonies that are necessary to constitute a valid mar-
G           riage must be presumed to have been performed. In any event,
            when there is evidence to show that the marriage as a fact has
            taken place according to law. In this connection Mr. Majumdar
            referred us to various English decisions where on the basis of
            certain evidence regarding the taking place of marriage between
H           ihe 'parties a presumption has been drawn that the marriage miist
                      LAXMI DEVI v. S. NARAYAN                         493

        have been solemnized according to law. In our opimon, It IS A
        unnecessary to refer to those cases cited by the learned counsel as
        the position is concluded against the appellant by the decisions of
        this Court on both points. Section 5 of the Act lays down conditions
        for a Hindu Marriage. It will be seen that one of the conditions is
        that referred to in Clause (i) namely, that neither of the parties B
        has a spouse living at the time of the marriage. Section 7 dealing
        with the ceremonies for Hindu Marriage is as follows :

            "Section 7 - Ceremonies for a Hindu Marriage.

           ( 1) A Hindu Marriage may be solemnized in accordance with         C
        the customary rites and ceremonies of either party thereto.

            (2) Where such rites and ceremonies include the Saptapadi
        (that is 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."                              D
           We have pointed out that in the case before us both sides were
        agreed that according to the law prevalent amongst them Homa
        and Saptapadi were essential rites to be peiformed for solemnization
        of the marriage and there is no specific evidence regarding the
        peiformance of these essential rites. The parties have also not proved E
        that they are governed by any custom under which these essential
        ceremonies need not he performed.

            To conclude, we have already referred to the fact that both the
        learned Sessions Judge and the High Court have categorically
        found that the Homa and Sapatpadi are the essential rites for a       F
        marriage according to the law governing the parties and that there
        is no evidence that these two essential ceremonies have been
        performed when the respondent is stated to have married Sandhya
        Rani." (Emphasis supplied)
                                                                              G
      The position is similar in this case. In the absence of proof of such
a ceremony the factum of second marriage cannot be held to have been
made out.

      Though we have come to the above conclusion, the first respondent
is undoubtedly living with Bimla, Respondent No. 4 as husband and wife.       H
    494                   SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A   Merely because the appellant is not in a position to prove the factum of
    second marriage punishable under Section 494 of the Indian Penal Code
    that does not mean the appellant should be left in the lurch. Exercising our
    powers undi;r Article 142 of the Constitution of India we think appellant
    should be awarded compensation which will bring some solace when her
B   life is dismally dark. Therefore, we quantify the compensation at Rs. 25,000
    which shall be paid by the first respondent to the appellant within eight
    weeks from· today.

           In the result, the criminal appeal is disposed of in the above terms.

    A.G.                                                    Appeal disposed of.




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