# KANWAL RAM AND ORS v. THE HIMACHAL PRADESH ADMN

- **Citation:** [1966] 1 S.C.R. 539
- **Court:** Supreme Court of India
- **Decided:** 1965-08-19
- **Case number:** Criminal Appeal No. 7 of 1963
- **Bench:** A. K. Sarkar, Raghubar Dayal, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kanwal-ram-and-ors-v-the-himachal-pradesh-admn-3642
- **Pages:** 4

## Headnote

Indian Penal Code (Act 45 of 1860), ss. 494, 109-Bigamy and abet111ent thereof-Ad111ission of accused 1vhether sufficient proof of second
marriage.
K, a woman, was alleged to have married a second time in contravention of the provisions of the Hindu Marriage Act. 1955 and was found
guilty, alongwith the alleged second husband, of an offence under s. 494
of the Indian Penal Code. Two of her relatives were convicted for abetment of the above offence. The Trial Court as well as the judicial Commissioner of Himachal Pradesh held that the evidence of the only witness
who was produced to prove the second marriage, fell short of proving it.
But the Judicial Commissioner convicted the appellants on certain admissions of K and the alleged second husband. In appeal to this Court,
HELD : In a bigamy case the second marriage has to be proved as a
fact.
The necessary ceremonies must be proved to have been performed.
Admission of marriage by the accused is not evidence of it for the purpose of proving an offence of bigamy or adultery. [541 F-0]
Bhaurao Shankar Lokhande v. State of Maharashtra, [1965] 2 S.C.R.
83 7. relied on.
Empress v. Pitambur Singh, (1880) I.L.R. 5 Cal. 566, EmpreS< v.
Kallu, (1882) LLR. 5 All. 233 and Morr;.. v. Miller, 4 Burr 2057-98 RR.
73, referred to.
R. v. Robinson, ( 1938) 1 A.E.R. 301. <listinguished.

## Text

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539
KANWAL RAM AND ORS.
v.
THE HIMACHAL PRADESH ADMN.
August 19, 1965
[A. K. SARKAR, RAGHUBAR DAYAL AND V. RAMASWAMI, JJ.)
Indian Penal Code (Act 45 of 1860), ss. 494, 109-Bigamy and abet111ent thereof-Ad111ission of accused 1vhether sufficient proof of second
marriage.
K, a woman, was alleged to have married a second time in contravention of the provisions of the Hindu Marriage Act. 1955 and was found
guilty, alongwith the alleged second husband, of an offence under s. 494
of the Indian Penal Code. Two of her relatives were convicted for abetment of the above offence. The Trial Court as well as the judicial Commissioner of Himachal Pradesh held that the evidence of the only witness
who was produced to prove the second marriage, fell short of proving it.
But the Judicial Commissioner convicted the appellants on certain admissions of K and the alleged second husband. In appeal to this Court,
HELD : In a bigamy case the second marriage has to be proved as a
fact.
The necessary ceremonies must be proved to have been performed.
Admission of marriage by the accused is not evidence of it for the purpose of proving an offence of bigamy or adultery. [541 F-0]
Bhaurao Shankar Lokhande v. State of Maharashtra, [1965] 2 S.C.R.
83 7. relied on.
Empress v. Pitambur Singh, (1880) I.L.R. 5 Cal. 566, EmpreS< v.
Kallu, (1882) LLR. 5 All. 233 and Morr;.. v. Miller, 4 Burr 2057-98 RR.
73, referred to.
R. v. Robinson, ( 1938) 1 A.E.R. 301. <listinguished.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No .
167 of 1963 .
Appeal by special leave froin the judgment and order dated
July 31, 1963, of the Judicial Commissioner's Court Himachal
Pradesh, in Criminal Appeal No. 7 of 1963.
S. C. Agarwala, R. K. Garg and D. P. Singh, for the appellants.
K. L. Hathi and B. R. G. K. Achar, for the respondent.
The Judgment of the Court was delivered by
Sarkar J.
This appeal arises out of a conviction for bigamy
and for the abetment of it under ss. 194 and 109 of the Indian
Penal Code. The trial Court acquitted the accused persons but
on appeal the Judicial Commissioner of Himachal Pradesh convicted them. Hence this appeal.
540
SUPREME
COURT
REPORTS
(1966) I S.C.R.
Originally four persons were charged, namely, Kubja the bride,
Kanwal Ram the bridegroom, Hira Nand and Scesia both relations
of the bride, the latter two having been charged under s. 494 read
with s. 109 for abetmcnt of the offence of bigamy committed by
the two first mentioned accused.
The charges were framed on
the complaint of Sadh Ram to whom Kubja had been earlier
married. The complainant had also implicated Hiroo, the mother
of Kubja but she was discharged by the magistrate. Hira Nand
died pending the appeal in this Court.
Sadh Ram was married to Kubja sometime in 1940-41.
The
marriage between the appellant Kanwal Ram and Kubja is said to
have taken place in September I 955.
By this time the Hindu
Marriage Act, 1955 had come into force and it prohibited the
marriage of a Hindu during the lifetime of his or her spouse. The
parties belong to a village in Himachal Pradesh among whom a
customary form of marriage called Praina, is recognised.
Both
the marriages were performed according to that form. The marriage of Kubja with Sadh Ram though originally challenged is now
accepted.
The only question
is whether the
second
marri·
age of Kubja, that is to say, between Kubja and Kanwal Ram, has
been proved.
The evidence would show that for a marriage in this form the
following ceremonies arc essential. First some agnatic relation of
the bridegroom goes to the bride's house and offers her "suhag".
Thereafter, a relation of the bride who is called Prainu, brings
her to the house of the bridegroom.
There at the door of the
house of the bridegroom coins arc put in a pot and then Puja and
Katha (reading of holy scriptures) are held. The bride then picks
up the pot and takes that to the family hearth and bows there.
Then she makes obeisance to the father-in-law and the mother-inlaw and other ciders in the family.
Lastly, with feasting the cer1monies end.
The complainant Sadh Ram himself admitted that
puja at the cntracc and bowing at the hearth by the bride after
she had picked up the pot were compulsory ceremonies. He added,
"If any one of these ceremonies is not performed, then the marriage
is not complete."
·.
Now all that the only witness who spoke about the ceremonies
observed at the marriage of Kubja and Kanwal Ram said was that
See.sia had brought the suhag and Hira Nand acted as Prainu. He
does not mention any of the other ceremonies to which we have
earlier referred.
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KANWAL RAM v. H.P. ADMN. (Sarkar, J.)
541
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.
The State of Maharashtra(') 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 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,
thought that
apart from the evidence about the marriage ceremonies earlier
mentioned 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. We are entirely
unable to agree that this, even if true, would at all prove his marriage with Kubja. Then the learned Judicial Commissioner relied on
a statement filed by Kubja, Hira Nand and Hiroo in answer to an
application for restitution of conjugal rights filed by Sadh Ram
against Kubja and others, in which it was stated that Kubja married
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Kanwal Ram after her marriage with Sadh Ram had been dissolved.
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Now the statement adffiitting 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. Nor do we think,
it is evidence of the marriage even as against Kubja. 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. 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: Empress v. Pitambur Singh( 2 ), Empress v.
G Kal/u( 3 ), Archbold Criminal Pleading Evidence and Practice
(35th ed.) Art. 3796. In Kallu's( 8 ) case and in Morris v.
Mill er(') it has been held that admission of marriage by the accus-
. ed is not evidence of it for the purpose of proving marriage in an
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adultry or bigamy case : see also Archbold Criminal Pleading
Evidence and Practice (35th ed.) Art. 3781.
We are unable,
(I) (1965] 2 S.C.R. 837.
(S) [1882] I.LR. 5 All. 233.
(2) (1880] I.L.R. 5 Cal. 566.
(4) 4 Burr 2057 : 98 E.R. 73.
542
SUPllEMB COUJl.T RBPOl.TS
(1966) 1 S.C.R.
therefore, to think that the written statement of Kubja affords any
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assistance towards proving her marriage with Kanwal Ram.
Learned counsel for the respondent state drew our attention to
R. v. Robinson(') in support of his contention that it is not necessary to prove that all the ceremonies required for the particular
form of marriage had been observed.
We do not think the case
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supports that proposition.
There the second marriage had been
performed according to a Scottish custom observing all the necessary formalities. It appeared however that in order to be able to
contract a marriage in that form one of the parties to it had to
reside in Scotland for twenty-one days which none of the parties to
the second marriage in that case had done. It was, therefore, held c
that the marriage was not valid and the decision was that this
invalidity of the marriage did not affect the liability for bigamy. It
was said that the validity of the second marriage did not signify.
The judgment pointed out that the previous marriage always rendered the second marriage invalid. Reference was made there to R.
V. A lien ( 2 ) for the proposition that the contracting of a second
marriage in an offence of bigamy meant only going through the
form and ceremony of marriage with another person. It was there
found that the form adopted by the parties was clearly recognised
by law as capable of producing a valid marriage. This form having
been observed, the court upheld the conviction for bigamy though
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the marriage turned out to be invalid by reason of the absence of
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the necessary condition precedent as to residence for twenty-one
days in Scotland. This case does not show that if the fom1alities required to create a valid marriage had not been observed. a conviction would have resulted.
Indeed in Lokhande's Cll.'e( 1 ) Ibis Court
h~ held to the contrary.
We, therefore, think that the appeal must be allowed and order
accordingly. The conviction of the appellants is set a~ide and their
bait bonds cancelled.
(I) (t938) I All. E.R. 301.
(2) (1872) LR. t C.C.R. 367.
(3) (t96S) 3 S.C.R. 837.
Appeal allowed.
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