VERY IMPORTANT POINT
"Saptapadi" was held to be an essential ceremony for a valid Hindu Marriage only in cases where it was admitted by parties that as per form of marriage applicable to them that was an essential ceremony.

Headnote:Indian Penal Code, 1860-Section 494-Offence of Bigamy-Appellant charged with offence of bigamy-Magistrate acquitting on ground that second marriage of appellant not proved-Single Judge reversed acquittal and held that appellant has committed offence punishable under Section 494 IPC-Case remanded for sentence-Appeal against to Supreme Court-Whether the second marriage entered into by appellant with the second accused, Kasturi, on 18-6-1984 was a valid marriage under Hindu Law so as to constitute an offence under Section 494 IPC? (Yes)-Ingredients of offence-Proof of bigamy a difficult task-Case Law-Effect of Tamil Nadu s amendment in Hindu Marriage Act, 1955-Section 7A-Special provision regarding Suyamariyathai and Seerthiruththa marriage-Proving valid second marriage-Appeal dismissed-Order of Single Judge upheld.
       Held : The essential ingredients of the offence under Section 494 IPC are (i) the accused must have contracted the first marriage; (ii) whilst the first marriage was subsisting, the accused must have contracted a second marriage; and (iii) both marriages must be valid in the sense that necessary ceremonies governing the parties must have been performed. Admittedly, the marriage of the appellant within the respondent, entered into by them on 6-9-1970, was subsisting at the time of the alleged second marriage. The Metropolitan Magistrate held that an important ceremony, namely, "Saptapadi" had not been performed and therefore, the second marriage was not a valid marriage and no offence was committed by the appellant. The learned Single Judge reversing this decision in appeal held that the parties are governed by Section 7-A of the Hindu Marriage Act as the parties are Hindus residing within the State of Tamil Nadu. It was held that there was a valid second marriage and the appellant was guilty of the offence of bigamy. (Paras 6 & 7)
       After referring case law held : In the aforesaid decisions rendered by this Court, it has been held that if the parties to the second marriage perform traditional Hindu form of marriage. "Saptapadi" and "Datta Homa" are essential ceremonies and without there being these two ceremonies, there would not be a valid marriage. (Para 16)
       But held : In the instant case, the parties to the second marriage, namely the appellant, Nagalingam, and his alleged second wife, Kasturi, are residents of the State of Tamil Nadu and their marriage was performed at Thiruthani Temple within the State of Tamil Nadu. In the Hindu Marriage Act, 1955, there is a State Amendment by the State of Tamil Nadu, which has been inserted as Section 7-A. (Para 17)
       Section 7-A applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons. The main thrust of this provision is that the presence of a priest is not necessary for the performance of a valid marriage. Parties can enter into a marriage in the presence of relatives or friends or other persons and each party to the marriage should declare in the language understood by the parties that each takes other to be his wife or, as the case may be, her husband, and the marriage would be completed by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon any finger of the other or tie a thali. Any of these ceremonies, namely garlanding each other or putting a ring upon any finger of the other or tying a thali would be sufficient to complete a valid marriage. Sub-section 2(a) of Section 7-A specifically says that notwithstanding anything contained in Section 7, all marriages to which this provision applies and solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967 shall be good and valid in law. Sub-section 2(b) further says that notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, all marriages to which this section applies solemnized at any time before such commencement, shall be deemed to have been valid. The only inhibition provided is that this marriage shall be subject to sub-section (3) of Section 7-A. We need not elaborately consider the scope of Section 7-A(3) as that is not relevant for our purpose. The evidence in this case as given by PW-3 clearly shows that there was a valid marriage in accordance with the provisions of Section 7-A of the Hindu Marriage Act. PW-3 deposed that the bridegroom brought the "Thirumangalam" and tied it around the neck of the bride and thereafter the bride and the bridegroom exchanged garlands three times and the father of the bride stated that he was giving his daughter to "Kanniyathan" on behalf of and in the witness of "Agnidevi" and the father of the bridegroom received and accepted the "Kanniyathan". PW-3 also deposed that he performed the marriage in accordance with the customs applicable to the parties. Under such circumstances, the provisions of Section 7-A, namely, the State Amendment inserted in the Statute are applicable and there was a valid marriage between the appellant and Kasturi. Moreover, neither complainant nor the appellant had any case that for a valid marriage among the members of the community to which they belong, this ceremony of "Saptapadi" was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi, i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. "Saptapadi" was held to be an essential ceremony for a valid marriage only in cases where it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had no such case that "Saptapadi" was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section 7-A are applicable to the parties. In any view of the matter, there was a valid marriage on 18-6-1984 between the appellant and the second accused, Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6-9-1970. The learned Single Judge was right in holding that the appellant committed the offence of bigamy and the matter ws correctly remanded to the trial Court for awarding appropriate sentence. We see no merit in this appeal and the same is dismissed accordingly. (Paras 18, 19, 20, 21, 22)

JUDGMENT

K.G. Balakrishnan, J.-Leave granted.

2. This appeal is directed against the judgment of the learned Single Judge of the High Court of Madras in Criminal Appeal No. 486 of 1999 reversing the order of acquittal passed by the Metropolitan Magistrate, Madras. The learned Single Judge found the appellant guilty of the offence under Section 494 IPC.

3. The appellant, S. Nagalingam married respondent-complainant Sivagami on 6-9-1970. Three children were born from that wedlock. The respondent alleged that the appellant started ill-treating her and on many occasions she was physically tortured. As a result of ill-treatment and severe torture inflicted by the appellant as well as his mother, she left her marital home and started staying with her parents. While so, the respondent came to know that the appellant had entered into a marriage with another woman on 18-6-1984, by name Kasturi, and that the marriage was performed in a Marriage Hall at Thiruthani. The respondent then filed a criminal complaint before the Metropolitan Magistrate against the appellant and six others. All the accused were acquitted by the trial court. Aggrieved thereby, the respondent filed criminal appeal No. 67 of 1992 before the High Court of Madras. The learned Single Judge, by his judgment dated 1.11.1996 upheld the acquittal of accused 2-7, but as regards the acquittal of the appellant, the matter was remitted to the trial court permitting the complainant to adduce evidence regarding the manner in which the marriage was solemnized. Upon remand, the Priest [PW-3], who is alleged to have performed the marriage of the appellant with the second accused, Kasturi, on 18-6-1984, was further examined and the appellant was allowed further cross-examination. The learned Metropolitan Magistrate by his judgment dated 4-3-1999 acquitted the accused. Aggrieved by the said judgment, the respondent preferred a criminal appeal before the High Court of Madras. By the impugned judgment, the learned Single Judge held that the appellant had committed the offence punishable under Section 494 IPC. This is challenged before us.

4. We heard Mr. R. Sundravardan, learned senior counsel for the appellant. The respondent Sivagami appeared in person and she filed some documents in court. Though she was offered the assistance of a counsel, she declined to avail herself of that opportunity.

5. The short question that arises for our consideration is whether the second marriage entered into by appellant with the second accused, Kasturi, on 18-6-1984 was a valid marriage under Hindu Law so as to constitute an offence under Section 494 IPC.

6. The essential ingredients of the offence under Section 494 IPC are (i) the accused must have contracted the first marriage; (ii) whilst the first marriage was subsisting, the accused must have contracted a second marriage; and (iii) both marriages must be valid in the sense that necessary ceremonies governing the parties must have been performed.

7. Admittedly, the marriage of the appellant within the respondent, entered into by them on 6-9-1970, was subsisting at the time of the alleged second marriage. The Metropolitan Magistrate held that an important ceremony, namely, "Saptapadi" had not been performed and therefore, the second marriage was not a valid marriage and no offence was committed by the appellant. The learned Single Judge reversing this decision in appeal held that the parties are governed by Section 7-A of the Hindu Marriage Act as the parties are Hindus residing within the State of Tamil Nadu. It was held that there was a valid second marriage and the appellant was guilty of the offence of bigamy.

8. In the complaint filed by the respondent, it was alleged that the appellant had contracted the second marriage and this marriage was solemnised in accordance with the Hindu rites on 18-6-1984 at RCC Mandapam, Tiruttani Devasthanam. To support this contention, PWs 2 and 3 were examined. PW-3 gave detailed evidence regarding the manner in which

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2001 Supreme(SC) 1193

VERY IMPORTANT POINT"Saptapadi" was held to be an essential ceremony for a valid Hindu Marriage only in cases where it was admitted by parties that as per form of marriage applicable to them that was an essential ceremony.

Cases Referred (5)

VERY IMPORTANT POINT
"Saptapadi" was held to be an essential ceremony for a valid Hindu Marriage only in cases where it was admitted by parties that as per form of marriage applicable to them that was an essential ceremony.