1. This appeal is against acquittal in a complaint under S. 494 IPC. The case of the complainant, who is a Muslim, is that his wife the 1st accused, married the 3rd accused at a time when his marriage with the 1st accused was subsisting and knowing that it was subsisting. The 1st accused was thus the principal offender under S. 494 IPC., and the other accused abettors thereof. The complainant stated in his evidence that his marriage with the 1st accused was on 1-3-1964; but from 1-8-1965 he was prevented by his father-in-law the 2nd accused, from approaching his wife, on the allegation that he embraced Ahamadeeya faith. The 4th accused is the Valiya Khasi of Kozhikode who published a a statement in the “Sunni Times” (Ex. P-1 dated 15-11-1965) to the effect that the marriage between a Sunni male and Sunni female would become automatically dissolved the moment the husband becomes a khadiyani. This opinion, according to the complainant is wrong. A registered notice was issued by the complainant to the Khasi questioning the propriety of his opinion. It was from a news item that appeared in “Pradeepam” under date 21-1-1969 that the complainant came to know that his wife the 1st accused, contracted marital alliance with the 3rd accused. The position taken up by the accused in that the 1st accused entered into marital alliance with the 3rd accused in the bonafide belief that by embracing Abamadeeya faith the complainant ceased to be a Sunni muslim and that resulted in the dissolution of marriage with the 1st accused. It is also the case of the accused that they were emboldened to “contract the second alliance by the opinion given by the Khasi that the marriage automatically came to an end when the husband embraces Abamadeeya faith. Learned counsel for the appellant argues this impression, viz., that by embracing Abamadeeya faith the marriage would automatically stand dissolved is wrong and against the very tenets of Islam. Counsel relied in this connection on a Division Bench ruling of the Madras High Court in Narantakath Avullah v. Parakkal Mammu (ILR. 45 Madras 986). Their Lordships have held that joining the Ahamadeeya sect will not amount to apostasy so as to sever the marriage tie. The learned Judges further held that the Ahamadeeyan's deviation from his faith is not such as to involve the abandonment of any of the essentials of Islamic law. One of the fundamental principles of his faith is that no prophet can appear after the Holy Prophet even from among his followers and the Ahamadeeyans deviated from this principle by accepting Ahamed as their prophet or preceptor. In coming to the conclusion that embracing Ahamadeeya faith is no apostasy, learned Judges relied very much on the following principles or fundamentals of the Ahamadeeya faith. Ahamed's principles stated in his own words were:—

“We are Muslims by the Grace of God; Musthafa, the Holy Prophet of Arabia is our leader and guide. The wine of our spiritual knowledge is from the cup of the Book of God, which is called the Koran. Every Prophethood has found its culmination in that Messenger of God, whose name is Muhaharaed. The revelation and inspiration that we receive have not been granted us independently but it is through him that we have received this gift.”

2. Thus the court entertained the view that the Ahamadeeyans in respect of their allegiance to Ahamed are Muslims and that basically there is no difference between the two sects. The same view is seen expressed by Krishna Iyer, J., in Shihabuddin Imbichi Koya Thangal… v. K.P Ahammed Koya…. (1971 KLT. 68). Tie learned Judge would observe:

“Nothing is more obnoxious to Islam than the non-acceptance of the unity of God. The Abamedees swear “by the Alla in one God and they cannot be beathenised on this score. Even the basic teachings of Ahamed do not give room for the tall contention that Abamadees are infidels. Catholicity and liberal views are often the anathema of the orthodox but the court is concerned only with civil rights and status and the impact of religion as affecting such status. In so doing, it cannot get entangled in theological meshes but has to go by the essential test of the basic identity of a religious community organised as a Church or a Faith. The bond of union consists in the identity of its very core and constitutes its distinctive existence. Looking at the issue devoid of sentiment and passion and in the cold light of the law it has to be held that the Abamadiya sect is of Islam and not alien. Therefore, it is not possible to accept the dissolution of marriage as a bye product of apostasy of husband in this case. Minor cults in every religion cannot be equated with major desertion of faith even if it may produce quakes in a section of the community.”

3. But that is not the question. The question to be considered in the present case is as to whether the acquittal entered by the court below is proper. The learned Judge in acquitting the accused has pointed out that there is no criminal intention so as to render the act of entering into the second alliance, punishable. But the prosecution would argue that mens rea or guilty intention is not an essential ingredient of the offence of bigamy as contemplated S. 494 of the Code, which provides:

“Whoever, having a husband or wife living, marries in any case to which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished……….”

4. The explanation to the section provides that the section will not apply to any person who contracts marriage during the life of a former husband or wife, if such husband or wife at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted, of the real state of facts so far as the same are within his or her knowledge. On a construction of the section it is possible to argue that criminal intention is no part of the offence. Justice Ramaswamy of the Madras High Court would observe In re Arcot Citizen Bank Ltd. v. Arcot (AIR.) 1957 675 that:

“The fundamental principle of English Criminal Jurisprudence to use a maxim which has been familiar to English lawyers. For nearly 800 years is, “actus non facit reum nisi mens sit rea”. An act does not make a man guilty without a guilty intention to do the guilty act which is made penal by the statute or common law. But there is generally no room for the application of this doctrine in the Indian Penal Statutes as their terms are precise and contain within themselves the precise and particular elements that go to make up the offences referred to in those statutes. So in the Indian Penal Statutes where the doctrine of mens rea is intended to come into operation and guilty mind is deemed essential for the proof of an offence, the statute itself uses the words like “knowingly” ‘willingly’, “fraudulently” ‘negligently’ and so on. Such knowledge can always be brought home by adducing circumstantial evidence-in fact mens rea must necessarily be proved by circumstantial evidence alone (except where the accused actually confesses and what is more in India sticks to it and which is highly problematical). It may also be useful to recall that, in establishing such guilty knowledge, actual or direct knowledge is not absolutely essential there being no doubt that a person who deliberately shuts his eye to an obvious means of knowledge in equally liable.

To sum up, in regard to the proof of mens rea in the large class of penal acts the state as well as Central Acts, which are really not criminal but which are prohibited by the levy of a penalty in the interests of the public, unless qualifying words are used, the prosecution need only prove the prohibited act and then must the defendant bring himself within the statutory defence. The absence of qualifying words connotes that the offence is intended to be one of absolute prohibition. On the other band if qualifying words like ‘knowingly’ wilfully ‘fraudulently’ and ‘negligently’ are used the prosecution must bring home to the offender either by direct or circumstantial evidenee the precise and particular elements connoted by these terms, i.e, showing liability of a guilty mind based in the from of actual knowledge or connivance. Where the offence is intended to be dependent upon a blameworthy mind in the form of knowledge of the facts constituting the offence the term “wilfully” is used to denote this requirement.”

5. But the position so far as bigamy is concerned has to be looked at from other angles as well. In R. v. Telson (23 Q.B.D 168) a woman was convicted of bigamy under English Statute which is almost identical in its terms with S. 494 IPC. She had been deserted by her husband and had married again within 7 years, having been informed by his brother that he had been lost in a ship which went down all on board, and having made enquiries which confirmed the story. As a matter of fact, the husband was alive and the jury found that she had at the time of her second marriage believed he was dead in good faith and on reasonable grounds. Her case came literally within the statute; but the majority of the Judges held that the conviction was bad; she was mistaken in the cardinal fact which constitutes bigamy. Gour in the Penal Law of India, Vol. 4, 8th Edn. page 3479 observes:

In prosecution under S. 494, the accused's criminal intention in the act complained of against him is of greater importance and significance than the question of any civil rights as between himself and the complainant. Criminal intention or guilty knowledge must be made out against the accused before the act complained of can be held to constitute a penal offence. It is clear from the expression having a husband or wife living that it is not enough that the Individual contemplated is alive at the relevant period but also that his or her earlier marriage also is subsisting in law. Only when both these conditions are satisfied can it be said that such husband or wife was alive at the relevant period. The plea of the accused that be entered into the second marriage in all good faith and after the honest impression that his earliest marriage with the complainant had been put an end to by the order of dissolution passed by a court of competent jurisdiction has to be accepted as a valid defence.”

6. This view was accepted by a Division Bench of this Court in Kochu Muhammad Kunju Ismail v. Mohammad Kadeeja Umma. (1958 KLT. 1042) wherein the learned Judges have expressed in clear terms that criminal intention or guilty knowledge must be made out against the accused before the act complained of can be held to constitute a penal offence. That was also a charge under S. 494 IPC. Even in statutory offences where criminal intention is not expressly made an essential ingredient of the offence it is open to the accused by proof of circumstances leading to the act, that mens rea was absent.

“Unless a statute clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind” (Vide AIR. 1965 SC. 722 and AIR. 1966 SC. 128).

7. In R. v. Dolman (1949-1 All England Law Reports 813) Streatfeild, J., observed:

“On a charge of bigamy it is a good defence if the accused person can prove that at the time of the second marriage he bad reasonable cause to believe, and honestly believed that his first marriage was void on the ground that the woman lie then married was already married to another man.”

8. In the present case, the 1st accused's definite plea is that it was on the advice of the Valia Khasi of Kozhikode (the 4th accused in the case) that she entered into the 2nd alliance. The Valia Khasi, it is undisputed, is the unquestioned authority on religious matters so for as the Muslims of Kozhikode are concerned. He gave the charter, as it were, to contract the 2nd alliance, as the 1st alliance tad stood dissolved by the husband embracing Abamedeeya faith. The fact cannot be disputed that there is stiil a section of Muslims who are firmly of the view that by embracing Ahamadeeya faith one would become an infidel and fall outside the range of Islamic law. Whatever that be, the point to be considered here is whether the first accused bad entered into the 2nd alliance in the bonafide hope and belief that she is doing the right thing as her former alliance was no longer subsisting. The Khasi's opinion gave added strength to her people and in the circumstances on the authorities above cited I should think that she should be exonerated from liability under S. 494 IPC. The order of acquittal in the above view is correct and in confirmation of it this appeal is dismissed.

9. Dismissed.