# PRIYA BALA GHOSH v. SURESH CHANDRA GHOSH

- **Citation:** [1971] 3 S.C.R. 961
- **Court:** Supreme Court of India
- **Decided:** 1971-03-04
- **Case number:** Criminal Appeal No. A 275 of 1968
- **Bench:** C. A. Vaidialingam, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/priya-bala-ghosh-v-suresh-chandra-ghosh-5462
- **Pages:** 10

## Headnote

961
Penal Code (Act 45 of 1860), s. 494-Proof of second marriap,e--
,4.dn1ission of second marriage-Relevancy.
The appellant filed a complaint against her husb,and the respondent,
stating that he took a second wife during the subsistence of the appellant's
marriage and that the respondent was therefore guilty of an offence under
s. 494 I.P.C. The trial coun convicted the respondent.
In appeal, the
Sessions Court found, that in relation to the second marriage, there was
no evidence of the performance of Homo and Saptapadi, which were
essential rites to be performed for solemnisation of a marriage accdrding
to the law prevailing among the parties; and the respondent was acquitted.
In the High Court, in order to prove the second marriage, the appellant
sought to rely upon a statement made by the respondent in answer to an
earlier complaint unde+ s. 494 I.P.C., filed by the appellant, wherein the
respondent had admitted that he had married a second wife because of
the misconduct of the appellant.
The High Court, however, held that
the statement could not be relied· upon for proving that the essential
ceremonie..,, had been performed and confirmed the acquittal of the respondent.
In appeal to this Court,
HELD : (I ) The prosecution has to prove that the alleged second
marriage, was ·a valid marriage, duly performed in accordance with the
essential religious rites applicable according to the law and custom of the
parties. (967 BJ
(2) The statement in the earlier proceedings in relation to the com·
plaint under s. 494 I.P.C., could not be relied upon because : (a) though
strictly it was not a confessicn nevertheless, if acted upon it would tend
to incriminate the respondent (who was in the position of an accused)
and therefore he was entitled to be given an opponunity of offering his
expla11ation, if any, in respect of su.ch incriminating statement; (b) such
opportunity was not given to the respondent and it was not put to him
when he was examined under s. 342 Cr.P.C., and ( c) such an admission
cannot in law be treated~ as evidence of the second marriage having taken
place in a bigamy case. [969 D-HJ
(J) In the present case, both the Sessions Judge and the High Court
have found that there was no evidence that Homo and Saptapadi, which
are essential rites for a marriage according to law governing the parties,
had been performed when the respondent is said to have married a second
wife, and hence. the respondent was not guilty. [964 C; 970 B·C]
Bhaurao Shankar Lokhande v. State of Maharashtra, (1965] 2 S.C.R.
837 and Kanwal Ram v. Himacha/ Pradesh Admn. [U66] I S.C.R. 539,
followed.
962
SUPREME COURT REPORTS
[1971] 3 S.C.R.

## Text

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PRIYA BALA GHOSH
v.
SURESH CHANDRA GHOSH
March 4, 1971
[C. A. VAIDIALINGAM AND A. N. RAY, JJ.)
961
Penal Code (Act 45 of 1860), s. 494-Proof of second marriap,e--
,4.dn1ission of second marriage-Relevancy.
The appellant filed a complaint against her husb,and the respondent,
stating that he took a second wife during the subsistence of the appellant's
marriage and that the respondent was therefore guilty of an offence under
s. 494 I.P.C. The trial coun convicted the respondent.
In appeal, the
Sessions Court found, that in relation to the second marriage, there was
no evidence of the performance of Homo and Saptapadi, which were
essential rites to be performed for solemnisation of a marriage accdrding
to the law prevailing among the parties; and the respondent was acquitted.
In the High Court, in order to prove the second marriage, the appellant
sought to rely upon a statement made by the respondent in answer to an
earlier complaint unde+ s. 494 I.P.C., filed by the appellant, wherein the
respondent had admitted that he had married a second wife because of
the misconduct of the appellant.
The High Court, however, held that
the statement could not be relied· upon for proving that the essential
ceremonie..,, had been performed and confirmed the acquittal of the respondent.
In appeal to this Court,
HELD : (I ) The prosecution has to prove that the alleged second
marriage, was ·a valid marriage, duly performed in accordance with the
essential religious rites applicable according to the law and custom of the
parties. (967 BJ
(2) The statement in the earlier proceedings in relation to the com·
plaint under s. 494 I.P.C., could not be relied upon because : (a) though
strictly it was not a confessicn nevertheless, if acted upon it would tend
to incriminate the respondent (who was in the position of an accused)
and therefore he was entitled to be given an opponunity of offering his
expla11ation, if any, in respect of su.ch incriminating statement; (b) such
opportunity was not given to the respondent and it was not put to him
when he was examined under s. 342 Cr.P.C., and ( c) such an admission
cannot in law be treated~ as evidence of the second marriage having taken
place in a bigamy case. [969 D-HJ
(J) In the present case, both the Sessions Judge and the High Court
have found that there was no evidence that Homo and Saptapadi, which
are essential rites for a marriage according to law governing the parties,
had been performed when the respondent is said to have married a second
wife, and hence. the respondent was not guilty. [964 C; 970 B·C]
Bhaurao Shankar Lokhande v. State of Maharashtra, (1965] 2 S.C.R.
837 and Kanwal Ram v. Himacha/ Pradesh Admn. [U66] I S.C.R. 539,
followed.
962
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[1971] 3 S.C.R.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
A
275 of 1968.
Appeal by special leave from the judgment and order dated
January 19, 1968 of the Calcutta High Court in Criminal Appeal
No. 393 of 1966.
S. C. Majumdar and R. K. Jain, for the appellant. ·
The respondent did not appear.
The Judgment of the Court was delivered by
Vaiilialingam, J.
In
this
appeal, by special leave,
the
appellant challenges the judgment and order of the Calcutta High
Court dated January 19, 1968 in Criminal Appeal No. 393 of
1966.
The appellant filed a complaint dated April 11, 1963 against
the respondent, her husband, in the Court of the Magistrate, !st
Class, Alipurduar, alleging that he has committed an offence under
s. 494 of the Indian Penal Code.
Briefly her case was as follows:
The respondent had married the appellant in or about 1948
according to Hindu rites and both of them had lived as husband
and wife together. But some time before the date of the complaint the respondent began to ill treat her, with the result that
she had to reside with her motlier and brother. The respondent
illegally married one Sandhya Rani as his second wife on May 31,
1962 and they have been living together as husband and wife.
As the second marriage has taken place during the subsistenee of
the appellant's marriage with the respondent, the second marriage
is invalid in law aμd the respondent is guilty of an offence under
s. 494 of the Indian Penal Code.
The respondent pleaded not guilty of the offence alleged
against him. He further pleaded that he has never married the
appellant and that the entire prosecution case is false.
The trial Magistrate after considering the evidence adduced
both regarding the marriage between the appellant
and
the
respondent as well as the allt:ged second marriage betwet;n the
respondent and Sandhya Rani, held that the marriage of the
appellant with the Jespondent was established. Notwithstanding
the scantiness of the evidence regarding the second marriage, the
Trial Magistrate, however, found that the respondent had admitted the second marriage in his objections filed to a claim made by
the appellant for maintenance under s. 488 of the Code of Crimi-
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:ORIYA KALA I'. s. c. GHOSH ( Vaidialingam, /.)
983
nal Procedure. ln this view the Magistrate held that there cannot
be any doubt that the respondent has marned Sandhya Rani whlle
hts lirst wite, the appellant, was still alive. The Magistrate further
'held that as the marriage with the appell:yit was subsisting, the
second marriage is void under s. 17 of the Hindu Marnages Act,
1955 (Act 2.) of 1955), (heremafter to be referred as the Act)
and, therefore, the respondent was guilty of the offence under
s. 494 of the Indian Penal Code. The respondent was sentenced
for the said offence to undergo rigorous imprisonment for one
year and also to pay a fine of Rs. :500/- and in default to suffer
rigorous imprisonment for a further period of three months. A
further direction was given that half the fine, if realised, was to
be paid to the complaint, the appellant.
On appeal by the respondent, the learned Sessions Judge,
Jalpaiguri, by his judgment dated April 30, 1966 held that the
evidence does not establish that the essential ceremonies to constitute a valid marriage have been performed either in the case
of the marriage claimed to have taken place between the appellant
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and the respondent or in respect of the alleged second marriage
with Sandhya Rani.
In this view the learned Sessions Judge set
aside the order of the magistrate convicting the respondent and
sentencing him as mentioned above. The respondent was acquitted of the offence under s. 494 I.P.C.
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On appeal by the appellant, the Calcutta High Court, however, differed from the finding of the learnetl Sessions
Judge
regarding the invalidity of the marriage between the appellant and
the respondent. On the other hand, the High Court held that the
evidence establishes that a valid marriage, according to Hindu
law, by which the parties were governed, has taken place betwen
the appellant and the respondent: But regarding the second marriage, the High Court agreed with the finding of the learned
Sessions Judge that the e~sential ceremonies to constitute a valid
marriage have not been proved to have taken place. In this view
the High Court confirmed the order of acquittal passed in favour
of the respondent and dismissed the apJlellant's appeal.
. Mr. S. C. Majumdar, learned ceunsel for the appellant, has
raised two contentions before us : ( 1) that the view of the High
Court that the essential ceremonies to constitute a valid marriage
have not been proved to have taken place regarding the second
marriage of the respondent with Sandhya Rani, is erroneous and
contrary to the evidence adduced in the case! and (2) In any
event in view of the specific admission made by the respondeni
in Ex. 2 about the second marriage and having ilue regard to the
other surrounding circumstances, it must be held that the resp:mdent i~ guilty of the offence under s. 494 l.P.C. The respondent
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SUPREfy!E COURT REPORTS '
[1971]3 S:c.R.
has not appeared before us and we have to proceed on the basis.
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of the fuiding of the learned Sessions Judge, accepted by the
High Court, that the appellant was married to the respondent arid
that the marriage was subsisti~ on the date of the alleged second
marriage.
Both the contentions of the learned counsel for the appellant
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can be dealt with together. It ha& been poi.rited· oufby the learned
Sessions Judge that ooth sides ;igreed t!lift according to the law
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prevalent amongst the parties Hom/J and Saptapadi were essential
rites to be performed to constitute a valid marriage. Both sides
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also agreed before the Court that there was no specific eVidence
as to the performance of Saptapadi and Homo in the case of the c
alleged marriage of the respondent with Sandhya Rani.
Tl).ere..
fore, the main question that has to be considered is whether the
performance of the above ceremonies .and rites have to be e.stablished by evidence specifically before the respondent could be
convicted under s. 494 I.P.C.
The findings of the High Court
are that the Priest, P.W. 6, who claims to have officiated at the
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marriage of the respondent and Sandhya Rani has given evidence
to the effect that the marriage was solemnised accordiri:g to Hindu
rites.
He bas not said anything more than. this.
The other evidence adduced' bas not been considered to be· of any use in this
regard. The further finding of the High Court is that no evidence
was adduced that the Homo and Saptapadi were performed in the
case of the marriage between Sandhya Rani and the respondent
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and that it bas also not been proved that·tbere wa5 any custom
prevalent I amongst the parties that those essential ceremonies .are
not necessary for the purpose of solemnization of the marriage.
According to Mr. Majuindar, when once the priest has given
evidence to the effect that the marriage between the respondent
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and Sandhya Rani has been performed, it follows that. ·an the
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essential ceremonies that are necessary to constitute a valid marriage must be presumed to Ji.ave been performed. In any event,
when there is evidence,t!J show that the marriage as a fact has
taken place, the presumption is that it has taken place according
to Jaw.
In this connection oM'r. Majumdar referred us to various
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English decisions w!Jere on the basis of certain evideuce regarding
the taking place of marriage between the parties a presumption
has been drawn that the marriage must have been solemnized
according to law.
In our opinion, it is unnecessary to refer to
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those cases cited by the learned counsel as the position is coneluded against the appellant by the decisions of this Court on
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both points. Sei;tion 5 of the Act Jays down conditions for
a
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Hindu marriage.
It will be seen that one of the conditions is
that referred ·to. iii clause ( i), namely, that neither of the parties
l'RlYA BALA v. s. c. Gl~OSH (Vaidia/ingam, J.)
965
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has a spouse living at the time of the marriage. Section 7 dealing
with the ceremonies for Hindu marriage iS as follows :
"Section ?-Ceremonies fOr a Hindu marriage.
(I) A Hindu marriage may bi; sqlemnized in accordance with the customary rites ·ii!Jd ceremonies of
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either party thereto.
(2) Where such rites and ceremofiies include the
Saptapadi (that is, the taking of sev~n steps by
the bridegroom and the bride jointly before the
sacred fire), the marriage \JP.comes a complete
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and binding when the s~venth step is taken."
We have ponited out that in the case before us both sides were
agreed that according to the law prevalent amongst them Hom"
and Saptc.padi were essential rites to be porformed for solemnization of the marriage and .there is no specific evidence regarding
the performance of these essential rites.
The parties have also
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not proved that they are governed· by any custom under which
these essential ceremonies need not be performed.
Section 11 of the Act deals with void marriages. One of the
conditions, if contravened, which makes a marriage solemnized
after the commencement of the Act, null and void is il any party
thereto have a spouse living at the time pf the marriage.
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Section 17 relating to punishment of bigamy is as follows :
"Section 17 Punishment of bigamy :
Any marriage be~n two Hindlis solemnized after
the commencement of · i£ Act is void if at the· date of
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such marriage either party had a husband or wife living:
and the provisions of sections 494 and 495 of the lndian
Penal Code shall apply accordingly."
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Again in. the ~ase before us there is no contr\)v.ersy that the
second marriage ts stated to have taken place 'after the C!>lllmencement of the Act during the subsistance of the first marriage.
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If the second marriage has taken place, it will be void under
the circumstances and s. 494 of the Indian Penal Code will be
attracted. Section 494 of the Indian Penal Code is as follows :
"Section 494-Marrying again during lifetime of husband or
wifeH
Whoever, having a husband or wife living, marries
"
in any case in. which such marriage is void by reason of
its taking place durinl( the life of such husband or wife
shall be punished with imprisonment of· either descrip:
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pn!JJ s.c.R
tion for a term which may extend to seven years, and
shall also be liable to fine."
In Bhaurao Shankar Lokhande and ano1her v. State of Maharashtra and another,(') the question arose whether in a prosecution for bigamy under s. 494 I.P.C. it was necessary to establish
that the second marriage had been duly perfonned in accordance
with the essential religious rites applicable to the form of marriage
gone through. The first appellant therein .had been convicted for
an offence under s. 494 I.P.C. for going through a.marriage which
was void by reason of its taking place during the life time of the
previous wife.
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. The State, on the other hand, contended that for
the commission of the offence under s. · 494 l.P.C. it was not
necessary that the second marriage should be a valid one and a
person going through any form of marri~ during the life time
of the first wife would be .guilty of the offence.
This Court
rejected the contention of the State and observed as follows :
"Prima facie the expression 'whoever ..... marries'
must mean 'whoever .... marries validly' or whover
..... 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 dμring the life time of the
husband or wife of the person marrying arises. If the
marriage_ is not a valid marriage, it is no marria)?e in
the eye of law."
Again in interpreti11g the word "solemnize" in s. 17 of the
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Act, it was stated :
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"The word 'solemnize' means in connection with a
marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the. Shorter
Oxford Dictionary.
It follows, therefore, that unless
the marriage . is 'celebrated or performed with proper
ceremonies· and due form' it cannot be said to be 'solemG
nized'. It is therefore essential for the ourpose of s. 17
of the Act, that the marri'lge to which s. 494 J.P.C._
applies on account of the provisions of the Act. should
have been celebrated with oioner ceremonies and in due
form.
Merely going through certain ceremonies ~th
the intention that the oartie~ be taken to be murned.
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will not make them ceremonie' nre•cribed bv law or
approved by any established custom."
(!) [1965) 2 S.C.R. 8~7.
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PRIYA BALA v. s. c. GHOSH (Vaidiallngam, I.)
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From the above quotations it is cl~ that if the al.leged second
marriage is not a valid one accordmg to. law ~pphcable to !he
parties, it will not be void by reason of its taking pla~e dunpg
the life of the husband or the wife of the person marrytnj! so as
to attract s. 494 I.P.C. Again in order to hold that the .. second
marriage has been solemnized so. as to attract s. 17 of the Act,
it is essential that the second mamage should have been celebrated
with proper ceremonies and in due form.
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In the said decision this Court further considered the question
whether it has been established that with respect to the alleged
second marriage the. essential ceremonies for a valid marriage
have been performed.
After referring to .the P!'S&age in Mull~'s
Hindu Law 12th Bdn. at page ~15 dealmg with the essential
ceremonies i~hich have to be performed for a valid marriage, this
Court, on the . .evidence held that the prosecution hac:J
neither
established that the essential ceremonies had been performed nor
that the performance of the essential cermonis had been abrogated by the custom governing the community to which the parties
belonged. In this view it was held that the prosecution in that
case had failed to establish that the alleged second marriage had
been perf~rmed in accordance with the requirement of s. 7 of the
Act. The effect of the decision, in oμr opinion, is that the prosecution has to prove that the alleged second marriage had &en
dlJ}y performed in accordance with the essential reli¢ous rites
a,oplicable to the form of marriage gone through by the parties
and that the said marriage must be a valid one according to law
" applicable to the parties.
·· Tn Kanwal Ram and others ·v.
The Himacha/ Pradesh
· Admn.(1) this Court reiterated the principles laid down is the
. earlier decision referred to above that in a prosecution far bigamy
the second marriage has · to be proved as a fact and it inust also
be proved that the necessary ceremonies had been perfOrmed.
Another prOPOSition laid down bv this decision, which answers the
second contention of the learned counsel for the appellant, is that
admission of marriage bv an accused is no evidence of marriage
for the nuroose of provinir an offence of bie:amv or adulterv. On
the evidence it was held in the said decision that the witnesses
have not nroved that the essential ceremonies had been· uerformed.
It was contended that an admission made by the accused
ree:ardine: the second marrial!'e is conclusive of the fact of a second
marriae:e havin!! taken nlace and that without anv other evidence
a conviction could be based on such admission.
This Court
rejected the said contention statine: :
" .......... it is clear that in law such admission
_is not evidence c;if the fact of the second marria!!e-havinl?
1. r!Q~i;i 1 ~.r.R. <~Q
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taken place. In a bigamy case, the second marriage as
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a fact, that is to say, the ceremonies constituting it must
be proved : Empress v. Pitambur Singh (1), l!.fr]press v.
Ka~/11(2), Archbold Criminal Pleading "Evidence a11d
Practice (35th ed.) Art. 3796. In Kallu's case and in
Morrie< v. Mil/er~
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marriage by the accused is not evidence of it for the
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purpose of proving marriage in an adultery or bigamy
case . ..... "
The dedsion in R. V. Robinson(') was relied on in the above
decision on behalf of the prosecution in support of the proposition that it was not necessary to prove that all the ceremonies
required for the particular form of marriage had been .observed.
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After a consideration of the facts in the English decision, quoted
above, this Court has expressed the view that the said decision
does not ·support the said proposition enunciated on behalf of the
prosecution.
We are only adverting to this fact, because the
English decision was again referred to us by Mr. Majumdar; and
it is not necessary for us to refer to the same over again excepting
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to say that the said decision does not advance the case of the
appellant.
As poinied out earlier, this Court in Kanwal Ram's c<1se has
laid down that an admission is not evidence of the fact that the
second marriage has taken place after the ceremonies constifuting
the same have been gone through.
As the High Court has dealt
with the question regarding the admissibility of°llmnission contained in Ex. 2, we will briefly refer to the nature of the admission
that was sought to be relied on against the respondent by the
complainant. But we make it clear that the discussion regarding
this aspect is oilly to deal with the contention advanced on behalf
of ·the appellant and to reject the same.
The trial Magistrate
whose decision was iri fav<>ur of -tile appellant has himself expressed the view that the evidence on, the side of the aopeilant
regl!rdimr the alleged secorid marria!!:e is very scanty. But that
court held that the respondent has admitted the ·second marriage
in Ex. 4, which was ari objection filed by the respondent in an
anplication filed by the aopellant for, maintenance under s. 488
Cr. P.C. We have )(one throu!!:h the said objection oetition. The
resoondent has alleged various acts of misconduct against the
appellant and he has merely_stated that he was coinoe!led to marrv
again.-
But no other narticulars have heen given in the said
objection oetition. We are of the view that no admission of the
second marria!!:e by the re~oondent with Sandbva Rarii can be
culled out from Ex. 4. Jn.fact the trial court has based.its fir~ding
I. m~01 t. L. R. 5 C•l.566.
3. 4 Jlurr. 2057: 98 E.R. 73.
2. [18~2) I.LIU All. 233.
4. [193811 All. E.R. JOI.
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PRJYA BALA v. s. c. GHOS~ (Vaidialingam, 1'.)
9.69
regarding the second marriage alrilost exclusively on what
it
considered to be an admission contained in Ex. 4. ·As there is
no such admission, the finding of the magistrate was clearly
erroneous.
Before the High Court, however, we find thJt the appellant
did not place any reliance on Ex. 4. On the other hand she relied
on an. admission stated to have been contained in Ex. 2.
The
appellant filed a complaint under>.· 494 1.P.C. against the respondent on an earlier occasion on the ground that the latter had contracted a second marriage with Sandhya Rani.
That complaint
was, however, withdrawn as the particular court had no jurisdiction.
In that proceeding the appellant wanted the said Sandhya
Rani to be summoned as a witness.
To that application, the
respondent filed an objection Ex. 2 wherein no doubt, he has
admitted that Sandhya Rani is his wife and that he married her
because of the misconduct of the appellant. The High Court
,considered the question whether this statement of the respondent
in Ex. 2 that he has married Sandhya Rani can be treated as an
admission of the fact of the second marriage. The High Court
was of the vi~w that the statement contained in Ex. 2 would really
be a confession statement and.declined to act on the same for two
rea'sOn.s : firstly, that the statement, in Ex. 2 had not been put to
the respondent when he was examined under s. 342 Cr. P.C. so
as to give him an opportunity to explain the statements contained
therein; secondly, that even if the statement contained in Ex. 2
can be taken intq account by themselves they will not be proof
of the fact that all the essential ceremonies necessary for a marriage have been performed.
In our view the reasons given by
the High Court are substantially correct. Though strictly
the
statements contained in Ex. 2 may not be a confession, nevertheless, these statements, if acted upon, tend to incriminate he respo'iident.
The resoondent being in the oosition of an accused was
entitled to be given an oooortunity of offering his explanation, if
any. in respect of the incriminating statement contained in Ex. 2.
Such an ?PPOrtunitv has not been admittedly given tp the respondent.
H1~ statement in Ex. 2 has not been put to his when he
was examined under s. 34'2 Cr. P.(;'.
Further as pointed out by this Court in Kawai Ram's case the
admission in Ex. 2 cannot in law be treated as evidence of the
second marria~e having tak~n place. in an adultery or begamy
case: ~r:d that m such cases 1t must be proved by the prosecution
that the second marriaee as a fact has taken place after the performance of the ess~ntial ceremonies.
Mr. Majumdar relied on the decision of this Court in Bharat
Singh and another vs. Bhagirathi(1) to the effect thiit the admis1. [1966] I S.C.R. 606.
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SUPREME COURT REPORTS
[1971) 3 S.C.R.
sions made by a party are substantive evidence by themselves in
view of ss. 17 and 21 of the Indian Evidence Act, and that if those
admissions have been duly proved they can be relied on irrespective of the fact whether the party making them appear in the witness
box or not or irrespective of the fact whether such a party had or
had not been confronted with those admissions.
We do not think
that the said decision in any way supports the appellant
with
regard to prosecution for bigamy under s. 494 I.P.C.
To conclude, we have already referred to the fact that both
the learned Sessions Judge and the High Court have categorically
found that the Homo and Saptapadi are the essential riles-for a
ma~riage 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. No reliance can be placed on the admissions stated to be
contained in Ex. 2.
For all the above reasons the contentions
of Mr. Majumdar have to be rejected.
The appeal fails and is dismissed.
V.P.S.
Appeal dismissed.
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