Ram Lali v. State

R. Chandray, J.:— On 9th September, 63 Hausila Prasad filed the complaint under Sec. 498, I.P.C, against Jagannath and Ram Lakhan. The Magistrate recorded the evidence under Sec. 202 and 203, Cr. P.C On 24th January, 64 he passed the following order:

“Summon the accused Jagannath and Ram Lakhan and also Ram Lakhan and also Ram Lalli as accused u/Sec. 494, I.P.C”

2. Against the order, Srimati Ram Lali filed the revision in the Sessions Court which was dismissed on 19th May, 64. Being aggrieved with those orders, the present revision has been filed by Srimati Ram Lali, Jagannath and Ram Lakhan. The petitioners are represented by a Counsel, but nobody put in an appearance on behalf of the State or Hauslla Prasad, opposite-parties.

3. On behalf of the petitioners, the contention is that the Magistrate was not competent to take cognizance under section 494, I.P.C Cognizance for such an offence could only be taken on the complaint made by some person aggrieved by such offence.

4. In the complaint filed by Hausila, there was the bare allegation that he was married to Srimati Ram Lali, daughter of Brij Lal of mauza Patna Pura Manipur, Police Station Kurebhar and they both lived as husband and wife, and from that union, two children were born and out of them, one son was, alive. On 21st August, 63 Jagannath with the collusion of Ram Lakhan (brother of Srimati Ram Lali), abducted his wife from the, house. In spite of a vigorous search, he could not trace out Ram Lali.

5. It appears that on the application of the complainant, Ram Lali was also summoned and her statement was recorded; She deposed that 6 or 7 years ago she was married to Mata Prasad. She left that husband (Mata Prasad), and married Jagannath. She emphatically denied her marriage with Hausila complainants on the basis of that statement, the Magistrate passed the impugned order.

6. Sec. 198, Cr. P.C lays down:

“No Court shall take cognizance of an offence falling under Chapter XIX or Chapter, XXI of the Indian Penal Code or under Secs. 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence:

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Sec. 494, I.P.C provides:

“Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of is taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

7. Under Sec. 198, Code of, the Criminal Procedure, no Court shall take; cognizance of an offence falling under this Sec. except upon a complaint made by some person aggrieved by such offence. This section is intended to prevent Magistrates from enquiring into cases coming under Secs. 493 to 496 unless the husband or some person aggrieved lodges a complaint. It is not necessary, however, that a complainant, should state precisely the section of, the Code under which the accused shall, be charged. It is sufficient if he lays before the Magistrate matters which, if proved, would be sufficient to warrant a commitment under this, section. The words used in Sec. 198, Cr. P.C are ‘complaint made by some person aggrieved by such offence.’ ‘Complaint’ under the Cr. P.C has been defined:

“‘Complaint’ means the allegation made orally or in writing to a Magistrate with a, view to his taking action, under this Code, that some person, whether known or unknown, has committed an offence, but it does, not include the report of a police-officer”

8. In the instant case, no oral or written allegation was made by the complainant to the Magistrate that Rain Lali had remarried, and taken a second husband in the lifetime of the first. The words “aggrieved by such offence appearing under Sec. 198, Cr. P.C, are significant. This means that there must be a specific allegation by the husband or wife of the charge of bigamy. To constitute a charge, under Sec. 494, I.P.C, the following facts must be established.

1. That the accused had already been married to some person. Proof of actual marriage is always necessary; proof of marriage by cohabitation, reputation and other circumstances from which a marriage may be inferred is not sufficient.

2. That the person, to whom he had married was still living. The prosecution must prove to the satisfaction of the Court that the husband or wife, as the case may be, was alive at the date of the second marriage.

3. That the accused married another person. The celebration of the second marriage has to be proved in the same manner as that of the first.

4. That the second marriage was void by reason of its taking place during the life, of the first spouse

9. In the case reported in Bhaurao Shanker Lokhande v. The State of Maharashtra A.I.R 1965 S.C 1564., it was held:

“The word ‘solemnize’ means, in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form’. It follows, therefore, that unless the marriage is ‘celebrated or performed with proper ceremonies, and due form’ it cannot be said to be ‘solemnized’. It is, therefore, essential for the purpose of Sec. 17 of the Act, that the marriage to which Sec. 494, I.P.C, applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form …..

Prima facie, the expression ‘whoever …… marries’ in Sec. 494, Penal Code must mean ‘whoever …… marries validly’ or ‘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 life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as Husbandu and wife.”

10. In the present case, it is clear that the complaint was not filed against Srimati Ram Lali. The accused, namely, Jagannath and Ram Lakhan had also no opportunity of cross-examining her. Nobody knows whether the facts given by her were correct or incorrect, Hausila Prasad, complainant at no stage complained that Ram Lali had married Jagannath. So merely on the basis of the statement of Srimati Ram Lali during the enquiry, Magistrate was not justified in taking cognizance of the offence under Sec. 494, I.P.C Disagreeing with the Courts below, I hold that the order dated 24th January, 64 is quite erroneous.

11. Accordingly, the revision is allowed and the order passed by the Magistrate summoning Ram Lali and others as accused under. Sec. 494, I.P.C, is set aside. The Magistrate shall proceed to dispose of the complaint pending before him according to law.

Revision allowed.