LexPRIYA BALA GHOSH versus SURESH CHANDRA GHOSH
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' ' 1 • A B c D E F G H 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 res- pondent. 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. 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 fol- lows: 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 com- plaint 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 fal
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