This is a petition for setting aside the discharge of the three accused in C.C No. 3917 of 1949 on the file of the 5th Presidency Magistrate, Madras. They had all been complained against under Ss. 494, 495, and 496 read with S. 109, I.P.C by the petitioner, Mrs. Marthammal, and were discharged by the learned Presidency Magistrate under S. 253 (1), Crl. P.C
The facts were briefly these. The petitioner Mrs. Marthammal, was a Christian school mistress, aged 29, in September 1943, when she met the first accused, Munuswami, a Hindu student just past 18. She fell madly in love with him and began to have sexual intercourse with him. Her father and brother chided her for thus misconducting herself. Later on, she and her father and brother arranged with the first accused that he should become a Christian and marry the petitioner and thus regularise the illicit relation, ship between him and the petitioner. On 9th April 1944, the first accused, Munuswami, was baptised and converted to Christianity by Rev. Moses, P.W 4, in the Perambur Telugu Baptist Church. P.W 3, the Deacon of the Church, was also present at the conversion. No intimation was sent to the boy's parents or relatives, who apparently did not know anything at all about his illicit intercourse with the petitioner or his intention to marry her after becoming a Christian, or even the fact of his knowing the petitioner. On 17th April 1944, 8 days after the conversion, the first accused was married to the petitioner in the same church in the presence of P.Ws 2, 3, 4 and 6, all Christians. Again, no information about the marriage was sent to the relatives of the first accused, and not one of them was present. The evidence showed that none of the relatives of the first accused ever knew that the first accused had become a Christian or had been baptised or had married the petitioner. After living together for some time, the first accused and the petitioner got estranged, in 1946, and the first accused was living away from the petitioner for some time. The petitioner then wrote to him several pathetic letters telling him that she loved him and wanted him alone, and not his money or belongings, and that he was her life add joy and comfort, and that she would get her sister or any other girl married to him as second wife, in addition to herself, and that he might live happily, enjoying jointly with both his wives, and that she would give him whatever money he wanted but that he should not marry a Hindu girl as he was intending to do. She wanted him to see the fair girl she was choosing for him as second wife and also to be with her for 24 hours in a hotel room. She added that she did not know before marrying him what love was, or what sin and the world were, and that she began realising them all only after marrying him. In spite of all these letters in 1946, and after a temporary reconciliation for some months, and getting a son by her on 27th July 1948, the first accused again went away from her in the latter half of 1948 and married P.W 11, Sarojini, the daughter of A.3 and a Hindu, on 3rd February 1949, according to Hindu rites. A-2, the father of A-1, was also present at that marriage. According to P.W 11 and the other evidence in the case, A-2 and A-3 had never heard of the marriage of the first accused with the petitioner or of his having had sexual intercourse with the petitioner, or even of his acquaintance with her, or of his having been baptised and converted to Christianity. The evidence of P.Ws 1 and 2, to the contrary, was held, rightly, to be false by the lower Court. The lower Court discharged A-2 and A-3 on the facts as it was satisfied that they knew nothing about his first marriage and had not been present at the second marriage of the first accused with knowledge of such first marriage and with intent to abet an offence of bigamy. Regarding the first accused, the lower Court held that he too should be discharged as the evidence of P.W 11, the second wife of the first accused, showed that he, a native convert to Christianity, having married P.W 1, the petitioner, according to Christian rites in a Church, had relapsed to Hinduism and exercised his right as a Hindu to enter into another (polygamous) marriage with P.W 11. P.W 11 had sworn that the first accused was observing only Hindu festivals and Hindu customs, and was not observing any Christian festivals or customs, and that she had married the accused according to Hindu rites. She was a girl of 17, and was not shaken in cross-examination, end her evidence was rightly accepted by the lower Court.
The learned Counsel for the petitioner, Mr. Gopala Menon, did not seriously contest before me the correctness of the discharge of accused 2 and 3 as they were not proved to have had any knowledge of the first marriage of the first accused with the petitioner and to have been present with such knowledge at the second marriage of the first accused with P.W 11. So the petition is dismissed against accused 2 and 3 (respondents 2 and 3 here).
Regarding the first accused, however, Mr. Gopala Menon urged that the order of discharge was wrong for three reasons. The first was that the lower Court had gone wrong in its statement of the law regarding the right of a native convert to Christianity to again relapse into Hinduism and marry a Hindu girl in spite of his marriage with a Christian girl when he was a Christian. He contended that the lower Court had misinterpreted the ruling in Emperor v. Antony(1) and paragraph 5117 in Gour's Indian Penal Code, 2nd volume, at pages 2258-59. I cannot agree. The lower Court has interpreted the ruling and the passage in Gour correctly. The statement of Gour that a conversion to Christianity of a native of India, and the member of a community where polygamy is the rule and monogamy an exception, does not necessarily imply any religious obligation to monogamy may be open to dispute, though this observation is supported by the weighty observation of Innes J. and the conduct of the petitioner, offering girl after girl to the petitioner as second wife and by the fact that Solomon the Wise had seven hundred wives and three hundred concubines (see the Bible-Kings) and yet this is not referred to with disapproval even in the New Testament, where his wisdom is praised. So the observation of Innes J. that a profession of Christianity does not ipso facto impose any such obligation to monogamy cannot be said to be without basis; but even, granting, for the sake of argument, that the profession of Christianity does impose a religious obligation to monogamy, that obligation goes when that religion is abandoned for a religion recognising polygamy. It does not follow that once a man becomes a Christian he has no right to relapse into Islam or Hinduism or any other of the alternative religions available in this world for his purpose, holy or unholy, and get the rights of the new religion he embraces, subject, of course, to any laws taking away such rights. I cannot see why a man like the first accused who became a Christian to marry the petitioner, a woman 11 years older than himself, should not be allowed to revert to Hinduism to marry P.W 11, another wife, 7 years younger than himself. Of course, the religious motive did not operate either for the conversion or for the re-conversion, and only the woman motive operated. It is admitted by Mr. Gopala Menon that at the time the first accused married P.W 11, the Madras Hindu Bigamy and Divorce Act had not come into operation making bigamy by a Madras Hindu a crime. That Act came into operation only in March 1949, a month after the second marriage of the first accused with P.W 11. The Indian Union is now a secular State, and every man is given a right to follow any religion lie likes, or to follow no religion at all. So, the conversion of a man to any religion will only enure so long as the person converted to it adheres to that religion and does not leave it for any other religion. There are well-known cases in this State of Hindus, even Brahmins, who were Christians for years and then relapsed to Hinduism and were accepted back by the caste and then followed the rights of the caste and even married their children into the caste. So it is not as if there is only a theoretical possibility of reconversion to Hinduism of a man converted to Christianity or any other religion. The famous Devalasmrithi, of the 8th century A.D, provided for Hindu converts to Islam to be taken back to Hinduism after Suddhi (purification). The great Sivaji reconverted his general Nethaji Palkar, who had been forcibly converted to Islam by Aurangazeb and married to a Muslim lady, from Islam to Hinduism after administering Prayaschittam (Suddhi) to him. He also reconverted Bajaji Nimbalkar, another famous Maharatta Chieftain, from Islam to Hinduism, and gave his own daughter in marriage to him. During the Moplah revolt in Malabar in 1921, and the Bengal and Punjab troubles in 1948, many Hindus converted by force to Islam were reconverted to Hinduism. So, reconversion to Hinduism has existed for centuries past. It is the law that a man on reconversion acquires the right of the religion which he re-enters, as correctly stated by the lower Court, subject to any law taking away particular rights. No such law exists here.
The second contention of Mr. Gopala Menon was that even if such a right to a polygamous marriage occurs on reconversion, there is nothing to show that the first accused was actually reconverted to Hinduism and abandoned Christianity, and that the first accused's case was that he never became a Christian, and this was found to be false. The lower Court was of opinion that the first accused was really baptised in the church and that he did become a Christian, though it was of opinion on that the first accused, having committed the youthful indiscretion of premarital sexual inter, course with P.W 1 and having been under the sway and influence of P.W 1 and her brothers, should have been pressed to legalise his relationship with P.W 1 by her people and he should have therefore consented to embrace Christianity for the purpose of marrying P.W 1, and that his conversion was cetainly not one which was of his own free choosing and that there should have been an element of coercion on the part of P.W 1 and her relations on this boy who had just attained the age of majority, by taking advantage of his sin, in having had intercourse with P.W 1 before marriage, as a lever to make him embrace Christianity and marry P.W 1. But the lower Court was satisfied, from the evidence of P.W 11, that the first accused had relapsed to Hinduism and had given up Christianity at least a month before he married P.W 11. Mr. Gopala Menon urged that merely following Hindu customs and Hindu festivals, as P.W 11 spoke to, would not be sufficient to show that the first accused had left Christianity and embraced Hinduism. But, here, there are five other additional facts. The first accused was never given a Christian name, and kept his Hindu name, Munuswami, throughout his career, at the time of the first marriage as well as at the time of the second marriage. Secondly, P.W 11 swore that the first accused never observed any Christian festival or ceremony. Thirdly, the conversion of the first accused to Christianity was not intimated to his parents either by the Pastor and the Deacon, who converted him, or by the first accused himself, or by P.W 1, the petitioner, or by any others, and all his relatives and castemen, including accused 2 and 3 and P.W 11, never knew of his being converted to Christianity and always knew him only as a Hindu. Fourthly, it is very doubtful whether the first accused really willingly embraced Christianity. If he simply went through that ceremony of baptism with mental reservations and under moral compulsion, by stressing the fact of his having had sexual intercourse with P.W 1 before marriage, it is obvious that he would have left that religion, as willingly as he had entered it unwillingly, as soon as he went back to his people. Lastly, I cannot agree with Mr. Gopala Menon that a month's time would not be enough for reconversion. Even a few hours will be enough if the intention to leave one religion and embrace another can be inferred beyond all reasonable doubt. Surely, the first accused, who was a Hindu and had been, converted to Christianity on 9th April 1944 in the course of a few hours could go back to Hinduism in the course of a month. The disruption of joint status in a Hindu joint family takes only a minute of unequivocal intention to separate expressed clearly. The festival of Pongal fell during the period after the first accused left P.W 1 for good and went back to his relatives, and he seems to have observed it, by the general evidence of P.W 11. After all, the religious persuasion of a man now-a-days depends on his subjective preference for any religion, and we must take it that the first accused, who asserted that he was a Hindu when he married P.W 1 and that he married her as a Hindu, was a Hindu at that time, even though his denial that he became a Christian some time earlier was disbelieved by the Court below on the evidence of the Pastor and the Deacon regarding his baptism. It is rather unfortunate that there is not one and the same law of bigamy for all the citizens of the Indian Union, and that while a Christian bigamist has been liable to punishment ever since the Penal Code was enacted, and some Hindu bigamists have become liable to punishment ever since March 1949, when the Madras Hindu Bigamy and Divorce Act was enacted, several, Hindu, Buddhist and Jain Bigamists (including Maharajas and millionaires) remain untouched, and Muslim bigamists can marry four wives at a time without running the risk of any prosecution or punishment. In fact, this discrimination between the various Communities living in the Indian Union regarding this crime has been made recently the peg for arguments, by some Hindu bigamists convicted in this State, that the Madras Hindu Bigamy Act is illegal as it is discriminatory and therefore void under the Constitution of India. Similar arguments have been adduced against even S. 494, I.P.C itself, and against S. 497, I.P.C, as only the adulterous man is punished and not the adulterous woman without whose co-operation he could never have committed the offence. Indeed even maintenance to a wife alone has been argued to be invalid under the Constitution as discriminatory as a husband cannot get maintenance from a rich wife. We need not go into the realm of all this argument and speculation in this case where the question has not been raised Seriously. It is obvious that, in the light of the facts stated above, the lower Court's order discharging the accused cannot be said to be incorrect or illegal or irregular or imporper or to have occasioned a failure of justice.
No doubt, as Mr. Gopala Menon Urged, as his third contention, the petitioner, Mrs. Marthammal has been left in a miserable predicament by the act of the first accused in deserting her and her son and marrying P.W 11. But this hardship has existed in all polygamous marriages by lusty fellows preferring younger women, and is nothing to go by in criminal cases; and equal hardship will be caused to P.W 11, the second wife of the first accused, if the marriage with her is declared illegal. Anyway, sending the first accused to jail in this bigamy case cannot be of much relief to the petitioner in her hardship or difficult situation.
In the end, therefore, the petition is dismissed regarding A-1 also.
N.R.R