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Case Number

Criminal Revision Case No. 82 of 1932. (Criminal Revision Petition No. 77 of 1932)

Attorney(S)

Mr. L. S. Veeraraghava Ayyar for the Petitioner.
Mr. N. S. Mani for The Public Prosecutor on behalf of the Crown.

Judges

Pakenham Walsh, J.

Acts

Section 494 and Section 114, I.P.C., against A-3 and A-4).
Sections 494 and 114, I.P.C.,
Section 494, I.P.C.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The complainant alleged that A-2 was his legally married wife who had lived with him after she attained puberty. A-2 left the complainant to live with her parents A-3 and A-4. The complainant obtained a decree in a suit for restitution of conjugal rights against A-2, A-3 and A-4. The complainant alleges that, to defeat execution of that decree, A-1 married A-2 on 5 June 1931, aided and abetted by A-3 and A-4, despite A-2 still being the complainant's legal wife. A complaint under Sections 494 and 114 of the Indian Penal Code was laid against the four accused (the text indicates Section 494 was relied on against A-1 and A-2, and Sections 494 and 114 against A-3 and A-4).

The learned Subdivisional Magistrate dismissed the complaint on the ground that the second marriage did not come within the purview of Section 494, I.P.C. A revision petition to the District Magistrate was summarily rejected. The present revision petition challenges that rejection. The court confined itself to the principal ground urged on revision: whether the caste custom described by the complainant, under which a wife may remarry (with associated payments and a so-called divorce deed), is one which the courts will recognize and which would preclude an offence under Section 494.

Legal Issues Presented

Whether the second marriage of A-2 during the life of her first husband, without a formal dissolution of the first marriage, constituted an offence under Section 494, I.P.C.
Whether the caste custom, as described by the complainant (payment/compensation to the first husband and execution of a "divorce deed" by caste usage), is a custom that the courts will recognize so as to prevent a finding of an offence under Section 494.

Arguments of the Parties

Complainant's Arguments

The complainant stated in his sworn statement that under his caste custom if the wife leaves her first husband and the parents compensate the first husband, a divorce deed is executed by the first husband; even after a second marriage, if the husband is compensated, a divorce deed is given and the second marriage is considered as valid as any other legal marriage.
On the face of the complaint and sworn statement, the second marriage was celebrated without a formal dissolution of the first marriage and against the complainant's wishes; thus, whether the caste custom is recognized by the courts determines whether the complaint should stand.

Petitioner's Arguments (as presented on revision)

It was argued before the revisional court that the caste custom described by the complainant (permitting remarriage during the first husband's lifetime under certain caste payments/confirmations) is not a custom that the courts should recognize because it is contrary to public policy and morality.
The petitioner relied on authorities to show that such customs cannot validate a second marriage which takes place during the life of the first husband without a recognized dissolution of the first marriage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reg v. Sambhu Raghu [1876] 1 Bom. 347	That it was not proved there was a caste custom allowing a woman to claim the right to marry again because her husband was a leper; a panchayat decision did not validate such a right.	The court considered it not in point for the present matter and did not rely on it to sustain the complainant's position.
The Government of Bombay v. Gangu [1879] 4 Bom. 330	When testing if the first marriage subsisted at the time of the second marriage, the principles of Hindu law must be applied (case concerned a Hindu woman embracing Islam and remarrying).	The court treated it as not directly in point for the present facts but referred to its principle that Hindu law principles govern whether first marriage subsists.
Empress v. Unni [1881] 6 Bom. 126	Where a deed of divorce did not proceed on grounds that in that caste justified a divorce, a second marriage was an offence under Section 494, I.P.C.	The court noted this as supporting the proposition that a second marriage without proper divorce may be an offence under Section 494.
In re Millard [887] 10 Mad. 218	Similar in character to The Government of Bombay v. Gangu; concerned a second marriage to a Christian.	The court observed it was not directly in point for the present case.
Reg v. Karsan Goja [1864] 2 Bom. H.C.R. 117 (also cited as Beg v. Karsan Goja)	Held that a custom permitting a woman to leave the first husband and conduct a second (natra) marriage without his consent was invalid and such a marriage was void during the life of the husband and punishable under Section 494.	The court treated this as one of the authorities directly supporting the conclusion that a custom permitting remarriage during the life of the first husband without formal dissolution is invalid and punishable under Section 494.
Eliji Etal v. Hathi Lalu [1870] 7 Bom. H.C.R. 133	Expressed that a custom allowing a wife to leave her husband whenever she pleased without forms would destroy the marriage tie and be immoral; held that a custom authorizing natra marriage without divorce is immoral and should not be judicially recognized.	The court relied on its principle and quotations to support the proposition that such customs are immoral and should not be recognized, and therefore second marriages under them can be offences under Section 494.
Budansa Rowther v. Fatma Bi A.I.R. 1914 Mad. 192	Held a document and custom authorizing a woman to contract a natra marriage without a divorce to be an immoral custom which should not be recognized judicially; akin to The Government of Bombay v. Gangu in approach.	The court regarded this Madras decision as directly in point and binding on the question; it followed this authority where it conflicted with other decisions it considered inconsistent.
Sankaralingam Chetty v. Subban Chetti [1894] 17 Mad. 479	Held that a caste custom permitting divorce and remarriage on mutual agreement and payment of marriage expenses (parisam) was not immoral.	The court said this case did not support the petitioner's position here and noted that in Sankaralingam Chetty the court expressly found Eliji Etal v. Hathi Lalu was not in point for that matter.
Jukni v. Queen-Empress [1892] 19 Cal. 627	Held that a conviction under Section 494 could not be supported where evidence showed a caste custom permitting sagai or nikka marriage and where the husband had relinquished his wife.	The court observed that Jukni might conflict with Budansa Rowther; however, the court felt bound to follow Budansa Rowther if a conflict existed and therefore did not rely on Jukni to defeat the complainant's case.

Court's Reasoning and Analysis

The court began by noting the complainant's sworn statement admitting a caste practice under which compensation to the first husband and a "divorce deed" could make a second marriage "considered as valid" by caste usage. The court observed that if such a custom were of the kind that courts will recognize, it would not interfere in revision and the dismissal might stand. The magistrate's dismissal was founded on a view that the second marriage did not fall within Section 494.

The court then reviewed relevant authorities. It differentiated cases which were not directly applicable (for example, Reg v. Sambhu Raghu, The Government of Bombay v. Gangu, In re Millard) from those which spoke directly to the question whether a custom permitting remarriage during the life of the first husband without formal dissolution is judicially recognizable (Reg v. Karsan Goja; Eliji Etal v. Hathi Lalu; Budansa Rowther v. Fatma Bi).

From Karsan Goja and Eliji Etal the court extracted the principle that customs which permit a woman to contract a natra marriage during the life of her husband without divorce are opposed to the spirit of Hindu law and public policy and are "immoral" customs that should not be judicially recognized. Budansa Rowther was treated as directly in point and binding on the court. The court also considered Sankaralingam Chetty (which allowed a caste custom of divorce and remarriage by mutual agreement and payment) and Jukni (which permitted a conviction to be defeated where the husband had relinquished his wife under caste usage) but concluded that Sankaralingam Chetty did not assist the petitioner's case here and that Jukni, if in conflict with Budansa Rowther, must yield to Budansa Rowther.

Applying these principles to the facts as pleaded, the court held that the caste custom admitted by the complainant—one permitting a second marriage during the lifetime of the first husband without annulment of the first marriage by divorce or an equivalent recognized form—is an offence under Section 494, I.P.C. The court emphasized restraint: it declined to decide broader or collateral questions (for example, whether there can be a divorce in that caste without the husband's consent under other conditions) to avoid prejudicing the trial.

Holding and Implications

The order of dismissal is set aside.

Implications and immediate effect:

The complaint is reinstated and "should be further inquired into"—the matter is remanded for further investigation and trial on the merits.
Because the dismissal was on a pure point of law, the court saw no reason why the Subdivisional Magistrate could not try the case; accordingly, the complaint is returned for trial at that level.
The court abstained from pronouncing on broader collateral issues and limited its decision to what was necessary to permit further inquiry; it relied on existing authorities (particularly Karsan Goja, Eliji Etal, and Budansa Rowther) rather than purporting to lay down any novel principle.

No new precedent was asserted by this opinion; the court's ruling rested on prior authorities and the direct effect is to permit further inquiry and trial of the complaint.

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Gedalu Narayana, In Re.

1. The complaint in this case was to the effect that A-2 was the legally married wife of the complainant; that they had lived together as man and wife for some time after A-2 attained puberty; that A-2 owing to ill advice of her parents A-3 and A-4 left complainant and went to live with A-3 and A-4; that complainant filed a suit for restitution of conjugal rights against A-2, A-3 and A-4 and got a decree; and that with a view to dofeat the execution of this decree A-1 married A-2 on 5th June 1931, aided and abetted by A-3 and A-4 knowing that A-2 continued to be the legally married wife of the complainant. A complaint Under Sections 494 and 114, I.P.C., was therefore laid against the four accused (presumably Under Section 494 against A-1 and A-2 and Under Section 494 and Section 114, I.P.C., against A-3 and A-4).

2. The complaint was dismissed by the learned Subdivisional Magistrate on the ground that the second marriage did not come within the purview of Section 494, I.P.C. A revision petition presented to the District Magistrate was summarily rejected and against this order the present revision petition is filed. I propose to confine myself to one matter only because it is the main ground urged, and because, as I find myself in agreement with the petitioner's contention, it is sufficient for the purpose of disposing of this revision petition. It is obviously undesirable that a revisional Court should at this stage embarrass the trial by deciding anything more than is necessary to justify further investigation into the complaint. So far as the complaint and sworn statement go it seems clear that the second marriage was celebrated without any formal dissolution of the first marriage; it was against the complainant's wishes, and the latter had not apparently been returned his marriage expenses, etc. If the custom of the caste, as stated by complainant himself, is one that the Courts will recognize, then I would not be prepared to interfore in revision with the order of dismissal, for complainant said as follows in his sworn statement:

If the wife leaves her first husband and before her second marriage if the parents compensate the first husband, a divorce deed is executed by the first husband. Even after the second marriage, if the husband is compensated, a divorce deed is given and the second marriage is considered as valid as any other legal marriage.

3. In the face of this statement by the complainant it is not necessary to consider the evidence of the two Court witnesses examined. The first supports it. The second only speaks about a second marriage after divorce. If then the law will uphold a custom of remarriage by the wife during the first husband's life time, without a divorce or its equivalent the Subdivisional Magistrate was perfectly right in dismissing the complaint. But it is argued before me that such a custom is not recognizable by the Courts as being against public policy. Four cases cited for the petitioner, Reg v. Sambhu Raghu [1876] 1 Bom. 347. The Government of Bombay v. Gangu [1879] 4 Bom. 330, Empress v. Unni [1881] 6 Bom. 126 and In re Millard, [887] 10 Mad. 218 are not, I consider, in point. In Reg v. Sambhu Raghu [1876] 1 Bom. 347 the finding was that it was not proved that there was a caste custom by which a woman could claim the right to marry again because her husband was a leper and that a decision of a panchayat authorizing her to do so would not validate it. The Government of Bombay v. Gangu [1879] 4 Bom. 330 decided that the marriage of a woman to her first Hindu husband was not dissolved by her embracing Islam and marrying a Mahomedan.

4. In Empress v. Unni [1881] 6 Bom. 126 it was found that the deed of divorce did not proceed on grounds which in that caste justified a divorce and hence a second marriage was an offence Under Section 494, I.P.C. In re Millard [887] 10 Mad. 218 is a case like The Government of Bombay v. Gangu [1879] 4 Bom. 330, only the second marriage was to a Christian. I now come to three cases which are directly in point: Reg v. Karsan Goja [18641 2 Bom.H.C.R. 117, Eliji Etal v. Hathi Lalu [1870] 7 Bom. H.C.R. 133 and Budansa Rowther v. Fatma Bi A.I.R. 1914 Mad. 192, Reg v. Karsan Goja [18641 2 Bom.H.C.R. 117; It was there held that a custom of the Talepada Koli caste, that a woman should be permitted to leave the husband to whom she has first been married, and to conduct a second marriage (natra) with another man in his little and without his consent, was invalid, as being on tirely opposed to the spirit of the Hindu law; and that such marriage was void by reason of its taking place during the life of such husband,' and therefore punishable as regards the woman Under Section 494, I.P.C.

5. A remark of the learned Sessions Judge who convicted that case, and whose conviction was upheld after certain findings had been called for, may perhaps be quoted:

If a wife could leave her husband whenever she pleased and without any forms whatever, the marriage tie would have no force at all and the intercourse of the sexes, in a caste in which such a state of society was allowed, would reduce its members to the level of the beasts of the field: Eliji Etal v. Hathi Lalu, [1870] 7 Bom. H.C.R. 133.

6. The heading to that case is a custom which authorizes a woman to contract a natra marriage without a divorce on payment of a certain sum to the caste to which she belongs is an immoral custom and one which should not be judicially recognized.

7. In that case the husband refused to give his wife up and a document passed by the caste in 1835 was put in to show that cither the man or his wife could dissolve the marriage by paying Rs. 32 to the caste, and that if a man contracted a natra marriage with a woman having a married dress (sachuri) he or his parents should pay Rs. 105 to the caste. The Court held:

we do not find that it (the document) professes to go to the extent argued and authorizes a woman to contract a natra marriage without a divorce or payment of a certain sum to the caste: but, even admitting that it does go as far as this, wo are of opinion, that it is an immoral custom which should not be recognized judicially. Budansa Rowther v. Fatma Bi A.I.R. 1914 Mad. 192.

8. This was like The Government of Bombay v. Gangu [1879] 4 Bom. 330, a case of a Hindu married woman embracing Islam and marrying a Mahomedan during her husband's lifetime. It was held that in testing whether the first marriage was still subsisting or not at the time of the second marriage the principles of Hindu law must be applied. One of the contentions (No. 4) put forward in that appeal was "that by the custom and usages of persons belonging to the Palli caste" (the caste of the woman in the case):

marriage with a second husband during the lifetime of the first husband is permissible; and that the onus lies on them who assert that such a custom is not applicable in a particular case to prove it.

9. On this Sadasiva Ayyar, J., observed:

I might however emphatically endorse his (Spencer, J's) view that if there is a custom among any community of allowing a woman to marry again during the lifetime of her first husband without any defined rules by which the marriage with her first husband is dissolved before the second marriage is contracted such a custom is contrary to public policy and morality and cannot be recognized by the Courts.

10. In support of the order were quoted Sankaralingam Chetty v. Subban Chetti [1894] 17 Mad. 479 and Jukni v. Queen-Empress [1892] 19 Cal. 627. The first does not, I consider, at all support the order in this matter. It was there held that there is nothing immoral in a caste custom by which divorce and remarriage are permissible on mutual agreement on one party paying to the other the expenses of the latter's original marriage (parisam). The Court expressly found that Eliji Etal v. Hathi Lalu [1870] 7 Bom. H.C.R. 133 was not in point:

since the question there was whether the caste could sanction a woman's remarriage without a divorce, i.e., without proceeding to which both husband and wife were parties.

11. Here the finding is that there has been a divorce according to the custom of the potters in Tinnevelly. Jukni v. Queen-Empress [1892] 19 Cal. 627. In this case it was held that a conviction Under Section 494, I.P.C., cannot be supported where there is evidence to show that by the custom of the caste sagai or nikka marriage was admissible and that the husband had relinquished his wife.

12. In that case the lower Court had found that the first husband had not abandoned his wife, but the High Court held to the contrary. They observed that a decision (which they do not specify) of the Bombay High Court had been pointed out to them under which the second marriage would not even so be binding, but they say that; a second marriage has for a long time been recognized by the Court among certain classes of people in this country. In this case it may very well be that the learned Judges held relinquishment by the husband to constitute a sufficient dissolution of the first marriage. If however their view really conflicts with the decision of the Bench of our own Court in Budansa Rowther v. Fatma Bi A.I.R. 1914 Mad. 192, I am bound to follow the latter. If the second marriage was an offence Under Section 494, I.P.C. at the time it was performed that offence cannot be obliterated by a subsequent divorce from the first husband or by a settlement with him even though such may be the caste usage as stated by the complainant. I feel therefore bound to hold on the authority of Beg v. Karsan Goja [1864] 2 Bom. H.C.R. 117, Eliji Etal v. Hathi Lalu [1870] 7 Bom. H.C.R. 133 land Budansa Rowther v. Fatma Bi A.I.R. 1914 Mad. 192, that the custom admitted by the complainant of a second marriage during the lifetime of the first husband and without the first marriage being annulled by divorce or in some formal manner recognized by caste usage equivalent to divorce (the mere wish of the woman against that of her husband being insufficient) is an offence Under Section 494, I.P.C.

13. I abstain from expressing an opinion whether there can be a divorce among this caste without the consent of the husband on certain other conditions being fulfilled, because, as I said, it is most undesirable at this stage to embarrass the trial by deciding anything that is not absolutely necessary for the purpose of allowing the petition. The order of dismissal is therefore set aside and the complaint should be further inquired into. As the dismissal was on a pure point of law, I see no reason why the Subdivisional Magistrate should not try the case.

Gedalu Narayana, In Re.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Complainant's Arguments

Petitioner's Arguments (as presented on revision)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gedalu Narayana, In Re.

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