He deposed that at the instance of one Ramkrishna Satale he was present at the marriage. ceremony of Saptapadi and usage applicable to the parties. performed. It is therefore essential for the purpose of, Section 17 of the Act, that the marriage to which Section. 2 Trimbak is concerned, he does not appear to be related to any of the parties. ....... Further, as pointed out by this court in Kanwal, Ram’s case (supra) the admission in Ex.2 cannot in law be, treated as evidence of the second marriage having taken, place, in an adultery or bigamy case, and that in such, cases it must be proved by the prosecution that the second, marriage as a fact has taken place after the performance, Again in A. Subash Babu vs. State of Andhra Pradesh and, another (2011)7 SCC 616 the Supreme Court again holds:-, In Gopal Lal v. State of Rajasthan (1979)2 SCC, 170 this Court had 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, On this point, two more decisions of the Supreme, Court in Lingari Obulamma vs. L. Venkata Reddy and others, (1979)3, SCC 80 and S. Nagalingam vs. Sivagami (2001)7 SCC 487 are relied, upon. 8. the first spouse has been absent or not heard of continually for a space of seven years. The evidence of the, witness called to prove the marriage ceremonies showed, that the essential ceremonies had not been performed. (old) need not be so high as required in prosecutions for bigamy or proceedings under the Divorce Act. sometimes be complicated to prove that a person is still married to another person at the time of their new marriage the first marriage. Bhajan Singh, and Satya Devi are the father and mother of this accused. 1 married the accused No. 8 and also the other accused 3, 4, 5, 6, 7, 13 and 15 he held them guilty of the charge of abetment punishable under Section 494 read with Section 109 of the Penal Code. 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.”. There are rare exceptions to this rule, but they should be avoided in formal writing. 1 in the statement under S. 313 of the Criminal P.C., his first marriage between him and the complainant can be held to be proved. In bigamy cases while lodging a criminal complaint it is not necessary for the aggrieved party to prove that marriage ceremonies were performed as it is for the trial court to decide the veracity of the allegations, the Supreme Court has held. He held that to establish that there was a first valid marriage between the complainant and the accused No. Today's Breaking News Darwin Pesco-January 19, 2021. She also charged the other accused for the offence of abetment punishable under Section 494 read with Section 109 of the Penal Code. The prosecution alleges that, Kamlesh, the second accused before the learned trial Court, is, the brother of Rajinder Kumar, the first accused. The Sessions Judge held that the first marriage between the complainant and the accused No. at *3. Shankar Lokhande v. State of Maharashara Cri. Section 494 of the, “Section 494. constitute bigamy,” since this is the language footnote 9 attempts to explain. bonds furnished by the respondents stand discharged. The learned Magistrate on the basis of the evidence before him held that the first marriage of the accused No. 2 of the second marriage. Now the statement, admitting the second marriage by these persons is, certainly not evidence of the marriage so far as Kanwal, Ram and Seesia are concerned; they did not make it. himself admitted the said marriage. Hence, the, judgment of the High Court is not sustainable and, consequently, we allow the appeal by setting aside the, conviction and sentence awarded by the High Court and, However, in S. Nagalingam ‘s case the Supreme Court holds that by, Marriage Act, the ‘saptapadi’ ceremonies are not required. No. He, therefore, held that the first marriage was subsisting when the alleged second marriage was solemnised by the accused No. Guidelines of Supreme court in respect of filing of vakalatnama. 8. 19. that for the commission of the offence under Section 494, I.P.C., it was not necessary that the second marriage, should be a valid one and a person going through any form, of marriage during the lifetime of the first wife would be, guilty of the offence. 178 of 1963, unreported: (since reported in AIR 1965 SC, 1564), this Court held that a marriage is not proved unless, the essential ceremonies required for its solemnization are, proved to have been performed. 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. Then, the court must show the first marriage never ended. Proof of Bigamy. 1 is living. To prove the offence of Bigamy, the prosecution must prove that the second marriage was valid, S. Nagalingam v. Sivagami, (2001) 7 SCC 487. Hence he held that the complainant failed to prove that there was a valid marriage performed between her and the accused No. Nor, do we think, it is evidence of the marriage even as against, Kubja. If the view taken by the learned Sessions Judge is a possible view, it is not open to me to disturb the same in appeal against acquittal. Marriage strict proof necessary to prove adultery or bigamy: In a prosecution under Section 494 (bigamy) and 497 (adultery), ‘marriage’ must be strictly proved. constituting it, must be proved: Empress v. Pitambur Singh. 0. Following Texas precedent, the court held the State did not need to prove that appellant actually engaged in bigamy but only needed to show that if … Favourite answer You need to take the proof of your search to your local police station and file a police report. 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. No such evidence in regard to the first marriage of the accused No. Ed.) He first referred, to a statement by the appellant Kanwal Ram that he had, sexual relationship with Kubja. Id. Facebook. According to the said decision the said marriage must be proved as a fact in the sense that the essentials required of legal and valid marriage must be proved by the complainant. Bonnor contracted his first marriage to Alice Wilson in England 8 he held that the evidence of the two witnesses examined on behalf of the complainant was not worthy of credence because in the first place they were related to the complainant and were, therefore, interested witnesses and secondly because of their conduct in not reporting the matter either to the police or to the complainant immediately after they witnessed the solemnisation of the alleged illegal second marriage, according to them, of the accused No. The Himachal Pradesh, Administration AIR 1966 SC 614 the Supreme Court considering this, 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. The said witness also did not inform the complainant or the police about the performance of the second marriage. This was also the situation in Santi Deb Verma v.Kanchan, Prava Devi 1991 Supp (2) SCC 616 reiterating that ‘saptapadi’ was, one of the essential ingredients for proving the valid marriage. According to the said decision, the admission of marriage by the accused is no evidence for the purpose of proving marriage in a case of adultery or bigamy. The, prosecution has examined 17 witnesses in all to establish its, On the evidence on record, the learned Judicial, Magistrate after a detailed consideration of the evidence, concluded that no offence as alleged has been made out against. How to prove bigamy in court I am wanting to know just how would one go about proving bigamy in court? Another demand of ` two lakhs was, made so that the accused could purchase a maruti van. In the absence of the proof of any relationship between the said Laxman, the father of the complainant and this witness, it is difficult to understand why this witness had gone to inform him the said incident on 9-6-1974. In the result, the appeal fails and is dismissed. In Bhaurao. What is not clear, and what was apparently not decided by ::: Downloaded on - 26/10/2013 16:13:38 :::HCHP, demand was met, but later on, another demand of Rs. It is not in dispute that for an offence under Section 494 both the marriages must be legal and valid. This Court rejected the contention of, “Prima facie the expression ‘whoever.......marries’, ‘whoever.....marries and whose marriage is a valid one.’ If, the marriage is not a valid one, according to the law, applicable to the parties, no question of its being void by, reason of its taking place during the lifetime of the, husband of wife of the person marrying arises. 2 and Sakharam S/o Tukaram Tupekar P.W. In the majority of cases, prove is a verb, while proof is a noun. for going, through a marriage which was void by reason of its taking, place during the lifetime of the previous wife. Unless these ingredients of Section 494 are satisfied, the accused cannot be punished for an offence of bigamy under the same. He has also deposed that there is no relation between him and Ramkrishna Satale. The “burden of proof” is used in two distinct sense, first ‘burden of establishing the case’ and second is ‘the burden of introducing evidence’. Updated June 7, 2020. In Kallu’s case, ILR 5 All 233 and in Morris v. Miller, (1767)4 Burr 2057:98 ER 73, it has been held that, admission of marriage by the accused is not evidence of it, for the purpose of proving marriage in an adultery or, bigamy case: see also Archbold,Criminal Pleading Evidence. It is, however, urged that the ratio of the said decisions applies to a second marriage. To prove bigamy in criminal court a district attorney must prove that the defendant knowingly entered into a bigamous marriage. He, therefore, sentenced him to suffer three months' rigorous imprisonment and to pay a fine of Rs. In these state of facts, the learned Sessions Judge rightly challenged the credibility of this witness. First, treated as an admission, the entire document, has to be read as a whole and that would prove the, dissolution of the first marriage of Kubja which would make, the second marriage innocent. It is this order which is now challenged in appeal. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and, in due form. 1 with the accused No. Posted on Apr 5, 2017. The above view was reiterated and was followed by the Supreme Court in the case of, 6. Important Supreme Court and Bombay HC Caselaws on S 156(3) of CRPC. would. I, therefore, find no merit in this appeal, which is dismissed. at page 615 dealing with the essential ceremonies, which have to be performed for a valid marriage, this Court, on the evidence held that the prosecution had neither, established that the essential ceremonies had been, abrogated by the custom governing the community to, which the parties belonged. Again in order to hold that the second marriage has been, solemnized so as to attract Section 17 of the Act, it is, essential that the second marriage should have been. The two witnesses viz. As regards the alleged second marriage of the accused No. 1958 THE BURDEN OF PROOF IN BIGAMY 511 all you see, he must satisfy you on the balance of probability that he did honestly believe that he was free to marry, and if you thogght that was correct-and you might very well not In the state of the above evidence on record it cannot be said that the view taken by the learned Sessions Judge is not a possible view about the credibility of these witnesses. So far as P.W. If the person in question is using a different name altogether and it is not known what state or county was used since they used a family friend to cover the paper work etc, what would be required to prove bigamy in court? Bail. In order to prove offence of bigamy, there should ample evidence to prove they have contracted second marriage without nullifying the first marriage. He, therefore, held that the second marriage was validly solemnised between the accused Nos. In another decision of the very coordinate bench in case of Narendrabhai Chandubhai Shah V/s. Each of the above accused was sentenced by him to suffer sentence till the rising of the Court and to pay a fine of Rs. 1 which was subsisting during the alleged second marriage contracted by the accused No. In Kanwal Ram and others v. The Himachal Pradesh, Admn. If the, marriage is not a valid marriage, it is no marriage in the, Again in interpreting the word “solemnize” in, “The word ‘solemnize’ means in connection with a, ceremonies and in due form’, according to the Shorter, Oxford Dictionary. at *5. Twitter. The learned counsel for the complainant has relied upon the observations of the Supreme Court in para 7 of the decision in the case of. celebrated with proper ceremonies and in due form. It is therefore essential for the purpose of Section 17 of the Act, that the marriage to which Section 494, I.P.C. As regards the second marriage of the accused No. 5287 . Appeal No. 1 with the complainant was established since the accused No. the first marriage has been declared void by the Court of competent jurisdiction, or. The question is whether enhancement under Section 22.011(f) required the State to prove that the defendant actually committed bigamy or simply that the defendant would be guilty of bigamy if he were to marry or purport to marry the victim or to live with the victim under the appearance of being married. 3 in this appeal), legally wedded to him about 8 years back before the date of the complaint However, she was not living with her husband at Amdapur, Tahsil Mehekar, District Buldana. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Profile. Art.3781. I advert to the evidence of this witness. We think this contention is justified. Footnote 9 is attached . The two judges who dissented on this issue concurred in the actual order for other reasons. The law on this point is, now well settled. Posted on Apr 5, 2017. The criminal defense lawyer for a person accused of bigamy will need to support the individual and present the case of innocence or good faith that the person did not commit the crime purposely. customary rites and ceremonies of either party thereto. It, Mr. Dutta, the learned counsel appearing on behalf, of the appellant herein assailed the impugned judgment, contending that in the absence of acceptable proof that the, marriage of the appellant with Namita Ghosh was, celebrated or performed with proper ceremonies and in, due form, it cannot be said that the marriage had been, solemnized within the ambit of the provisions of the Hindu, Marriage Act, 1955 (hereinafter referred to as the ‘Act’), and that the finding of the High Court based on the three, letters and the oral evidence to the effect that the, appellant and Namita Ghosh were living together to the, effect that the appellant and Namita ghosh were living, together as husband and wife cannot in any way serve as, proof of a valid marriage as per the Act, especially when, there is no plea that the marriage was solemnized in, accordance with the customary rites and usage which do, not include Saptapadi. When it was not complied with she was assaulted and, beaten. the person marrying so as to attract Section 494, I.P.C. Id. 50/- or in default to undergo 15 days' rigorous imprisonment. Proving bigamy without a marriage license - Answered by a verified Family Lawyer We use cookies to give you the best possible experience on our website. To prove bigamy exists, the court must prove the defendant was legally married to the first person. The is an appeal by the complainant wife against the acquittal of the accused by the learned Sessions Judge. 8 in this appeal) on 1-6-1974 as per the customary rights of the Hindus. 1 (respondent No. Since the second marriage was conducted during the subsistence of the first marriage with her she filed a complaint charging the accused Nos. 2 who is the resident of the same village in which the accused No. 1 of the village Amdapur and the other was one Fakira S/o Govinda D.W. No. the question whether it has been established that with, respect to the alleged second marriage the essential. Priya Bala Ghosh v. Suresh Chandra Ghosh (AIR, Bigamy-proof of solemnization of both the marriages, Guidelines of Supreme court in respect of filing of vakalatnama. Where such rites and ceremonies include the, Sapatapadi (that is the taking of seven steps by the. Learned Additional Advocate General also submits that the, second marriage stands proved by none other than PW14 Pandit, Roop Chand Sharma who performed the marriage and stated in, clear and uncertain terms that marriage was not only performed, by him but also entered in the Register Ext.PW14/A and he, issued Ext.P1 which is the certificate evidencing the marriage of, the accused. Another proposition laid down by this decision, which answers the second contention of the learned counsel for the appellant, is, that admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery. 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, From the above quotations it is clear that if the, alleged second marriage is not a valid one according to law, applicable to the parties, it will not be void by reason of its, taking place during the life of the husband or the wife of. 1 with the accused No. a valid one according to law applicable to the parties. Compoundable Offence. the accused and they were acquitted for the said offences. In Kanwal Ram and others vs. Vishal and PW12 Roop Rekha, who have been declared hostile, there is nothing to suggest that ceremonies necessary for, solemnization of a valid marriage have been proved. 1 had married the accused No. The learned trial Court only relies upon selective. Section 498-A, 494 read with Section 34 of IPC. In other words, it is not the case of, the respondent that the marriage was celebrated in. Punishment of bigamy-Any marriage, between two Hindus solemnized after the commencement, of this Act is void if at the date of such marriage either, party had a husband or wife living; and the provisions of, Sections 494 and 495 of the Indian Penal Code (XLV of, Again in the case before us there is no controversy, that the second marriage is stated to have been place after, the commencement of the Act during the subsistence of. It is, alleged that the complainant was constantly harassed by the, accused for not meeting their demands for dowry. The trial Court, Commissioner does not seem to have taken a different, thought that apart from the evidence about the marriage, ceremonies earlier mentioned there was other evidence, which would prove the second marriage. Whether judge can alter Judgment after it is signed? No. PW14 states, in his examination in chief that he performs the marriages of, Hindus in accordance with the Hindu tradition and the exact, “......main Hindu riti-riwaz ke anusar saat feron dwara, (Stated that I perform the marriages of the interested, persons in accordance with the Hindu rites and customs, He then states that he had performed the marriage of the, accused according to Hindu customs, but no where states that, ceremony of ‘saptapadi’ was performed. 1 in his statement recorded under Section 313 of the Criminal P.C. Latest Stories. The said witness does not report the matter to the complainant or to the police or police patil. Ultimately, your question has to do with evidence & what type of evidence is relevant and admissible to prove what you claim, bigamy. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. The effect of the decision, in our opinion, is that the, prosecution has to prove that the alleged second marriage, religious rites applicable to the form of the marriage gone, through by the parties and that the said marriage must be. In a bigamy case, the, scond marriage as a fact, that is to say, the ceremonies. The first appellant therein had been, convicted for an offence under Section 494, I.P.C. Secondly, it is clear that in, law such admission is not evidence of the fact of the, second marriage having taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it, must be proved. ILR 5 Cal 566(FB), Empress of India v. Kallu, ILR 5 All 233, Archbold, Criminal Pleading Evidence and Practice (35th. Other evidence may exist that supports these ideas. for dowry and cruel treatment meted out to the complainant. principles established in R. v. Broughton 3 and required a person accused of bigamy to prove on the balance of probabilities the facts on which he relied for exculpation. Trimbak S/o Ramchandra P.W. In that context, they referred to the Proviso to Section 50 of the Evidence Act which reads as under : IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA, The State is aggrieved by the judgment of the, learned trial Court for acquitting the accused for offences under. However, it is clear from these two decisions that mere admission of the accused is not sufficient to prove the marriage in the case of bigamy. 3 Sakharam Tupekar. I hold that even in the evidence of PW11. So far as the second witness C.W. Kanwal Ram v. The Himachal Pradesh Administration, Smt. Whether wife can be denied maintenance on ground that she has relinquished her right to maintenance under divorce deed? 1. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it, must be proved.It is therefore essential for the purpose of Section 17 of the Act, that the marriage to which Section 494, I.P.C. 4. The result will be that the, alleged marriage between the appellant and Namita, Ghosh, celebrated in defiance of the law applicable to the, parties is held to be a marriage not valid in law. the first marriage has been dissolved by divorce, or. 1 in his statement under Section 313 of the Criminal P.C. other or further proof was required for proving this offence. In fact, the courts have proceeded on the footing that, according to the parties, the ceremony of Saptapadi is one, of the essential requirements for constituting a valid, The High Court in the instant case had drawn an, inference that all the ceremonies essential for a valid, marriage had been performed on the strength of the three, letters and the oral evidence as aforementioned. October 30, 2018. The learned Sessions Judge has laid stress upon the conduct of these two witnesses in not reporting the matter to the complainant or to the police immediately after the incident of the performance of the second marriage, which according to them, they witnessed. We suggest that you should register a complaint of Bigamy under Section 494 of the Indian Penal Code against your husband in the nearest Police Station. Being aggrieved, the accused preferred an appeal to the Sessions Court. 7. Proof not required for registering FIR in bigamy cases: SC. 8. According to her, the accused No. We are entirely unable to, agree that this, even if true, would at all prove his marriage, with Kubja. If bigamy is proven based on the above presented to a Judge, depending on whether the other marriage existed prior or subsequent to your marriage; your marriage would be either void or you'd have grounds for a divorce. 1 and 8 of having committed an offence punishable under Section 494 of the Penal Code. Direct evidence is needed to demonstrate that second marriage was contracted, during the subsistence of first, to prove the offence of bigamy. portions of the evidence in order to garner out those portions. ceremonies for a valid marriage have been performed. 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. 1 with the accused No. Unless these ingredients of Section 494 are satisfied, the accused cannot be punished for an offence of bigamy under the same. Having thus held that the second marriage was validly performed between the accused Nos. Whether wife can be denied maintenance on ground that she has relinquished her right to maintenance under divorce deed? bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the, Section 11 of the Act deals with void marriages. Neither he nor any of the witnesses show the relationship of Ramkrishna Satale to the parties to the second marriage, so as to show his authority for giving invitation to Trimbak C.W. No. 3 had attended the said marriage. Yes. Important Supreme Court and Bombay HC Caselaws on S 156(3) of CRPC. P ENAL C ODE § 25.01. 3000/-, was made. 8 according to the ceremonies and customary rites of the caste to which they belonged as deposed to by these witnesses. The first question that arises for consideration in this case is whether by the admission of the accused No. I do not find the, evidence of ‘saptapadi’ ceremony having been proved on record, and in these circumstances, the judgment of learned trial Court, cannot be faulted with. In this view it was held that the, prosecution in that case had failed to establish that the. The said, appellant contended that it was necessary for the, prosecution to establish that the alleged second marriage, had been duly performed in accordance with the essential, religious rites. After referring to the passage in Mulla’s Hindu Law, 12th, Edn. 300/- and in default of payment of fine to undergo further three months' rigorous imprisonment. He only gave the information to the father of the complainant on or about 9-6-1974. When this money was paid, the accused Rajinder Kumar, spent it on consuming liquor. No. The complainant wife claims that she was the first wife of the accused No. In this context it is necessary to bear in mind the requirements of Section 494 of the Penal Code. If follows, therefore, that unless the, ceremonies and due form’ it cannot be said to be, ‘solemnized’. 1 with the accused No. State of Gujarat, reported in 2013 (O) G... Holding that any addition, deletion or modification of the contents of a judgment will tantamount to alteration of the judgment, the M... 1) Supreme Court: Magistrate Can Invoke Power U/S 156(3) CrPC Even At Post-Cognizance Stage  https://www.lawweb.in/2019/10/supreme-court... For an offence under Section 494 both the marriages must be legal and valid. Whether Reporters of Local Papers may be allowed to see the judgment? Penal Code 281 PC is the California statute that defines the crime of bigamy.This section makes it illegal to marry one person while you are still married to someone else.The statute reads that “(a) Every person having a husband or wife living, who marries any other person, except in the cases specified in Section 282, is guilty of bigamy.” Besides her own evidence she examined the two witnesses on her behalf referred to above. Is Section 489A of Indian Penal Code, 1860 applicable to second wife? 1 and 8 was not properly proved. We are unable, therefore, to think that the written statement of Kubja affords any, assistance towards proving her marriage with Kanwal, This principle does not need any reiteration as again, the Supreme Court was at pains to point out that:-, in Smt. The gist, of the offence against the accused is that not only did they treat, the complainant with cruelty within the meaning of Section 498-A, IPC, but Rajinder the first accused performed a second marriage, in contravention of the provisions of Section 494 IPC . Art. bigamy,” it should have said the State was required to prove a marriage prohibition under the bigamy statute, or at the very least “facts that . The Supreme Court has held in the case of, fact, that is to say the essential ceremonies by which it is solemnised, must be proved. On behalf of the accused also two witnesses were examined. 5. 1 and 8 during the subsistence of the first marriage he held the accused No. The law of bigamy is not applicable to live- in relationship as there is no legally contracted marriage. Godawari vs State Of Maharashtra And Others on 24 September, 1984. The offence is compoundable with the consent of the wife and permission of the court, Parameswari v. Vennila, (2000) 10 SCC 348. Proof not required for for lodging complaints under Bigamy law The Supreme Court has held that while lodging a criminal complaint it is not necessary for the aggrieved party to prove that marriage ceremonies were performed as it is for the trial court to decide the veracity of the allegations The case of the prosecution, in brief, is that, complainant Nirmala Devi was married to accused Rajinder, Kumar (sic Singh) on 6.12.2000. Ceremonies for a Hindu marriage-(1) A, Hindu marriage may be solemnized in accordance with the. That standard of proof of marriage in proceedings under Section 488 Cr.P.C. Initially one. It is not in dispute that the complainant has no personal knowledge of the second marriage. The statement of the accused was recorded under Section 313 of the Criminal P.C. Whether judge can alter Judgment after it is signed? But, there is no such amendment in the State of H.P. 10. which are favourable to the accused, resulting in acquittal. 1, the complainant should have led requisite evidence of the solemnisation of the said marriage. in a prosecution for bigamy the second marriage has to be proved as a fact and it must also be that the necessary ceremonies proved had been performed. Proof needed to pursue case of concubinage. (Vide Para 7 of the report). So, that evidence cannot justify the conviction. 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