Judgment

FAZAL ALI J.:- This appeal by special leave is directed against a judgment of the Rajasthan High Court by which the conviction of the appellant under Section 494 I. P. C. and sentence of two years rigorous imprisonment and fine of Rs. 2,000/- have been upheld. The facts of this case have been detailed in the judgments of the courts below and it is not necessary to repeat them. Suffice it to say that the accused Gopal Lal married the complainant Kanchan sometime in the year 1963 and a child was born out of this wedlock. Soon thereafter the parties appeared to have fallen out and parted company. While the first marriage was subsisting Gopal Lal contracted a second marriage which according to the custom prevalent amongst Tellis is a valid marriage commonly known as nata maggiage. This marriage was contracted on 20th of March, 1969. The complainant Kanchan, the first wife having come to know about this marriage filed a complaint on the 22nd March, 1969, on the basis of which appellant was prosecuted and ultimately convicted as mentioned above.

2. Mr. A. N. Mulla, learned counsel for the appellant, had submitted two points before us. In the first place it was contended that in view of the provisions of Section 17 of the Hindu Marriage Act, the second marriage being a void marriage, the provisions of Section 494 I. P. C. car not attracted at all. We have given our anxious consideration to this argument but we are of the opinion that the argument is wholly untenable. Section 494 runs thus :

"Whoever, having a husband or wife living marries in any case in which such marriage is void by reason of its 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.

Exception - This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a 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."

3. The essential ingredients of this offence are :

(1) that the accused spouse must have contracted the first marriage,

(2) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and

(3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.

4. It may also be noticed that Section 494 I. P. C. would come into play only if the second marriage becomes void by virtue of fact that it had taken place in the lifetime of one of the spouses. Thus, it is not possible to accede to the contention of Mr. Mulla that merely because the second marriage was void under Section 17 of Hindu Marriage Act hence Section 494 I. P. C. would not be attracted. Section 17 of the Hindu Marriage Act runs thus :

"Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly".

5. What Section 17 contemplates is that the second marriage must be according to the ceremonies required by law. If the marriage is void its voidness would only lead to civil consequences arising from such marriage. S. 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of S. 494 of the Penal Code which has been extracted above.