5. B. of proof of satisfying the jury of the honesty (and, less certainly, the reasonableness) of his mistake lies on the accused. 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. Whether Reporters of Local Papers may be allowed to see the judgment? at *5. Having thus held that the second marriage was validly performed between the accused Nos. Guidelines of Supreme court in respect of filing of vakalatnama. So far as P.W. Important Supreme Court and Bombay HC Caselaws on S 156(3) of CRPC. The State, on the other hand, contended. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. In the result, the appeal fails and is dismissed. The first appellant therein had been, convicted for an offence under Section 494, I.P.C. On the, question of cruelty, I find that evidence is speculative but not, concrete to prove on record any demand in the form of demand. and Practice (35th Ed.) 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 Kanwal Ram after her marriage, with Sadh Ram had been dissolved. sometimes be complicated to prove that a person is still married to another person at the time of their new marriage In that context, they referred to the Proviso to Section 50 of the Evidence Act which reads as under : 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. AIR 1966 SC 614 this Court again reiterated the, principles laid down in the earlier decision referred to, above that in a prosecution for bigamy the second, marriage has to be proved as a fact and it must also be. If the second marriage has taken place, it will be void under the circumstances and Section 494 of, the Indian Penal Code will be attracted. He, therefore, held that the first marriage was subsisting when the alleged second marriage was solemnised by the accused No. 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. 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. performed. 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. It is therefore essential for the purpose of Section 17 of the Act, that the marriage to which Section 494, I.P.C. I hold that even in the evidence of PW11. celebrated with proper ceremonies and in due form. There are rare exceptions to this rule, but they should be avoided in formal writing. The finding arrived at by the learned Sessions Judge in regard to the second marriage, namely that the complainant has failed to prove the second marriage is not open to interference by me. He first referred, to a statement by the appellant Kanwal Ram that he had, sexual relationship with Kubja. Bail. In a bigamy case, the, scond marriage as a fact, that is to say, the ceremonies. the first husband or wife is dead, or. 2 of the second marriage. 8. 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. 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. Nor, do we think, it is evidence of the marriage even as against, Kubja. Ed.) It is not in dispute that for an offence under Section 494 both the marriages must be legal and valid. We are entirely unable to, agree that this, even if true, would at all prove his marriage, with Kubja. I advert to the evidence of this witness. 3 Sakharam Tupekar. Ultimately, your question has to do with evidence & what type of evidence is relevant and admissible to prove what you claim, bigamy. 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. 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. He only gave the information to the father of the complainant on or about 9-6-1974. Departmental Enquiry Then, the court must show the first marriage never ended. 1 with the accused No. The evidence of the, witness called to prove the marriage ceremonies showed, that the essential ceremonies had not been performed. 8 (the respondent No. 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. (Vide Para 7 of the report). In another decision of the very coordinate bench in case of Narendrabhai Chandubhai Shah V/s. 8 according to the ceremonies and customary rites of the caste to which they belonged as deposed to by these witnesses. Learned Additional Advocate General submits that testimony of, the prosecution witnesses has not been considered in its true, perspective. 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. 2 Vithal was married to the said Tapaji Kadam. In Kanwal Ram and others v. The Himachal Pradesh, Admn. As regards the alleged second marriage of the accused No. 1 with 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. No. 2 who is the resident of the same village in which the accused No. 7. proving an offence of bigamy or adultery. In Subash Babu v. Unless these ingredients of Section 494 are satisfied, the accused cannot be punished for an offence of bigamy under the same. The term burden of proof is dealt with in part III, chapter VII, section 101 to 114 A of the Indian evidence act, 1872. The “burden of proof” is used in two distinct sense, first ‘burden of establishing the case’ and second is ‘the burden of introducing evidence’. One, of the conditions, if contravened, which makes a marriage, solemnized after the commencement of the Act, null and, void, is, if any party thereto has a spouse living at the time, Section 17 relating to punishment of bigamy is as, “Section 17. No. 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.”. 1 in his statement under Section 313 of the Criminal P.C. 1 and 8 of having committed an offence punishable under Section 494 of the Penal Code. accordance with the requirement of Section 7 of the Act. Email. portions of the evidence in order to garner out those portions. She also charged the other accused for the offence of abetment punishable under Section 494 read with Section 109 of the Penal Code. The learned Sessions Judge, therefore, acquitted all the accused by allowing the appeal. other or further proof was required for proving this offence. The complainant wife claims that she was the first wife of the accused No. 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. 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. 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. for dowry and cruel treatment meted out to the complainant. I, therefore, find no merit in this appeal, which is dismissed. Today's Breaking News Darwin Pesco-January 19, 2021. ::: Downloaded on - 26/10/2013 16:13:38 :::HCHP, demand was met, but later on, another demand of Rs. 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. Twitter. 1 with the complainant was established since the accused No. 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. The statement of the accused was recorded under Section 313 of the Criminal P.C. 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 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. By Persida Acosta. 1 which was subsisting during the alleged second marriage contracted by the accused No. 8 he held on the basis of the evidence of the witnesses examined on behalf of the complainant that the accused No. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. 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. 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. himself admitted the said marriage. ceremony of Saptapadi and usage applicable to the parties. 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 . 1 guilty of an offence punishable under Section 494 of the Penal Code. The offence is compoundable with the consent of the wife and permission of the court, Parameswari v. Vennila, (2000) 10 SCC 348. 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. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and, in due form. When it was not complied with she was assaulted and, beaten. 1 of the village Amdapur and the other was one Fakira S/o Govinda D.W. No. Whether wife can be denied maintenance on ground that she has relinquished her right to maintenance under divorce deed? 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. The prosecution alleges that, Kamlesh, the second accused before the learned trial Court, is, the brother of Rajinder Kumar, the first accused. To prove bigamy exists, the court must prove the defendant was legally married to the first person. It is necessary for the complainant to give strict proof of marriage. October 30, 2018. 1 is living. 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.” The Sessions Judge held that the first marriage between the complainant and the accused No. a valid one according to law applicable to the parties. He, therefore, sentenced him to suffer three months' rigorous imprisonment and to pay a fine of Rs. the accused and they were acquitted for the said offences. 3796. 1 in his statement recorded under Section 313 of the Criminal P.C. It is therefore essential for the purpose of, Section 17 of the Act, that the marriage to which Section. 9. To prove the offence of Bigamy, the prosecution must prove that the second marriage was valid, S. Nagalingam v. Sivagami, (2001) 7 SCC 487. The learned trial Court only relies upon selective. The learned Magistrate on the basis of the evidence before him held that the first marriage of the accused No. 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. 50/- or in default to undergo 15 days' rigorous imprisonment. No such evidence in regard to the first marriage of the accused No. 1 with the accused No. 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. The said witness does not report the matter to the complainant or to the police or police patil. In these state of facts, the learned Sessions Judge rightly challenged the credibility of this witness. The two judges who dissented on this issue concurred in the actual order for other reasons. He deposed that at the instance of one Ramkrishna Satale he was present at the marriage. Is Section 489A of Indian Penal Code, 1860 applicable to second wife? customary rites and ceremonies of either party thereto. 8 in this appeal) on 1-6-1974 as per the customary rights of the Hindus. Besides her own evidence she examined the two witnesses on her behalf referred to above. the first spouse has been absent or not heard of continually for a space of seven years. 8. Profile. It will be seen that one of the conditions is, that referred to in clause (1) namely, that neither of the. To prove bigamy in criminal court a district attorney must prove that the defendant knowingly entered into a bigamous marriage. ceremonies for a valid marriage have been performed. 494, I.P.C. 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. He, therefore, held that the second marriage was validly solemnised between the accused Nos. 1 and 8. 1 married the accused No. 3 had attended the said marriage. We think this contention is justified. Whether judge can alter Judgment after it is signed? In another decision of the very coordinate bench in case of Narendrabhai Chandubhai Shah V/s. 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. Id. In this context it is necessary to bear in mind the requirements of Section 494 of the Penal Code. 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. constituting it, must be proved: Empress v. Pitambur Singh. Favourite answer You need to take the proof of your search to your local police station and file a police report. 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? Appeal No. He has also deposed that there is no relation between him and Ramkrishna Satale. Being aggrieved the complainant has preferred this appeal against the acquittal of the accused. 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. But, there is no such amendment in the State of H.P. After referring to the passage in Mulla’s Hindu Law, 12th, Edn. 1 and 8 during the subsistence of the first marriage he held the accused No. Art. 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. 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. So, that evidence cannot justify the conviction. However, she learnt about the same through P.W. Since the second marriage was conducted during the subsistence of the first marriage with her she filed a complaint charging the accused Nos. 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. 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. In appeal against an acquittal unless it is shown that the view taken by the Sessions Judge is not possible or that his finding is perverse, it would not be open to me to disturb his finding that the second marriage of the accused Nos. The two witnesses viz. Art.3781. Whether wife can be denied maintenance on ground that she has relinquished her right to maintenance under divorce deed? By continuing to use this site you consent to the use of cookies on your device as described … 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. No. As regards the question of the proof of the second marriage, the learned Sessions Judge has directed himself to the credibility of two witnesses examined on behalf of the complainant. 1. No. The case of the prosecution, in brief, is that, complainant Nirmala Devi was married to accused Rajinder, Kumar (sic Singh) on 6.12.2000. 8. 3. In order to prove offence of bigamy, there should ample evidence to prove they have contracted second marriage without nullifying the first marriage. Compoundable Offence. Updated June 7, 2020. Proof not required for registering FIR in bigamy cases: SC. 10. PNP vows no crackdown, militarization in UP. Footnote 9 is attached . 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 … It is this order which is now challenged in appeal. Other evidence may exist that supports these ideas. In Kanwal Ram and others vs. 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. 1 cannot be held to be proved merely by the admission of the accused No. Section 494 of the, “Section 494. (old) need not be so high as required in prosecutions for bigamy or proceedings under the Divorce Act. 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. Proof of Bigamy. Any admission, tacit or otherwise, of marriage would not be sufficient. parties has a spouse living at the time of the marriage. If follows, therefore, that unless the, ceremonies and due form’ it cannot be said to be, ‘solemnized’. 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. Shankar Lokhande v. State of Maharashara Cri. Marrying again during lifetime of, husband and wife-Whoever, having a husband or wife, living, marries in any case is which such marriage is void, by reason of its taking place during the life of such, husband or wife, shall be punished with imprisonment of, years, and shall also be liable to fine.”, In Bhaurao Shankar Lokhande and Another v. State, either description for a term which may extend to seven, of Maharashtra and Another (1965)2 SCR 837, the question, arose whether in a prosecution for bigamy under Section, 494, I.P.C., it was necessary to establish that the second, marriage had been duly performed in accordance with the, essential religious rites applicable to the form of marriage, gone through. That standard of proof of marriage in proceedings under Section 488 Cr.P.C. constitute bigamy,” since this is the language footnote 9 attempts to explain. the first marriage has been dissolved by divorce, or. Id. As regards the second marriage of the accused No. 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. which are favourable to the accused, resulting in acquittal. 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. He acquitted the accused Nos. The said witness also did not inform the complainant or the police about the performance of the second marriage. Latest Stories. Being aggrieved, the accused preferred an appeal to the Sessions Court. To establish an adultery claim in South Carolina, you will need to prove two elements: Your spouse had motive to have the affair; and Your spouse had the opportunity to have an affair. 300/- and in default of payment of fine to undergo further three months' rigorous imprisonment. the first marriage has been declared void by the Court of competent jurisdiction, or. Yes. Trimbak S/o Ramchandra P.W. 1 with the accused No. On behalf of the accused also two witnesses were examined. for going, through a marriage which was void by reason of its taking, place during the lifetime of the previous wife. 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. It is not in dispute that the complainant has no personal knowledge of the second marriage. 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. Facebook. 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. ....... 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. In bigamy cases while lodging a criminal complaint it is not necessary for the aggrieved party to prove that marriage … Godawari vs State Of Maharashtra And Others on 24 September, 1984. at *3. 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. Another demand of ` two lakhs was, made so that the accused could purchase a maruti van. Priya Bala Ghosh vs. Suresh Chandra Ghosh, 1971(1) SCC 864, “10........Section 5 of the Act lays down conditions for a, Hindu marriage. 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. the person marrying so as to attract Section 494, I.P.C. So far as the second witness C.W. The first question that arises for consideration in this case is whether by the admission of the accused No. Posted on Apr 5, 2017. 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. 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. 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. 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 . In the majority of cases, prove is a verb, while proof is a noun. Proof needed to pursue case of concubinage. As regards the accused No. T EX. He held that to establish that there was a first valid marriage between the complainant and the accused No. The literal meaning of bigamy is the crime of going through a form of marriage while a previous marriage is still in existence or having two wives or husband at once..in England, bigamy was originally an ecclesiastical offence based upon the broad grounds of its involving an outrage upon public decency by the profanation of a solemn ceremony According to the hindu marriage act, 1955, under section 5 … Initially one. 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 law of bigamy is not applicable to live- in relationship as there is no legally contracted marriage. Kanwal Ram v. The Himachal Pradesh Administration, Smt. Important Supreme Court and Bombay HC Caselaws on S 156(3) of CRPC. , or offence of bigamy is not the case of, the prosecution has... Was married to the complainant see the Judgment was held that the this site consent... They were acquitted for the purpose of Section 494, I.P.C solemnisation of the Hindus of proof of marriage not! As per the customary rights of the accused Nos called to prove the offence of.. This accused to see the Judgment is No such evidence in regard to the accused No 1984. It is not in dispute that for an offence punishable under Section of! Learned Additional Advocate General submits that testimony of, the court must the... Know just how would one go about proving bigamy in court statement of the Penal.. 494 of the Criminal P.C said Tapaji Kadam Darwin Pesco-January 19, 2021 solemnisation of the evidence the... Father and mother of this accused this point is, alleged that first. 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