IMPORTANT POINT
In the absence of proof of "Saptapadi" the factum of second marriage cannot be held to have been made out. But if parties were living as husband & wife compensation can be granted to first wife.

JUDGMENT

S. Mohan, J. - The first respondent was charged for an offence under Section 494 I.P.C., respondent No. 7 under Section 494 read with Section 109 of I.P.C. and respondent Nos. 2 to 6 and 8-9 under Section 494 read with Section 120B of I.P.C. The trial took place before Judicial Magistrate No. 1, Bikaner. It was held that the prosecution had not proved through proper witnesses saptapadi to establish the factum of second marriage of accused (respondent No. 1). The High Court found that it was not a fit case for grant of leave to appeal. Thus, the present criminal appeal against the impugned order dt 18.7.1978 was passed by High Court.

2. The only point urged before us is that though saptapadi a fact has not been proved, there is enough evidence to establish the factum of second marriage. There are eye witnesses who have seen the marriage. That is enough to bring out the charge. The principle relating to saptapadi taking of seven steps before the sacred fife cannot be insisted upon if as of fact marriage is established. Therefore, the courts below are wrong.

3. The learned counsel for the respondents would urge that the courts below have correctly appreciated the legal position. It is saptapadi which establishes the factum of marriage, being an essential ceremony. Without proof of such a ceremony, a case for bigamy cannot arise.

4. We have carefully gone through the evidence. The evidence of P.W. 2 to P.W. 5 does not establish the essential ceremony of marriage viz. saptapadi .

 5. This Court in Kanwal Ram v. H.P. Administration1, has held as under:

"It was contended for the appellants that this evidence was not enough to show that the marriage of Kubja and Kanwal Ram can be said to have been performed. We think this contention is justified. In Bhaurao Shankar Lokhande v. State of Maharashtra, Crl. Appeal No. 178 of 1963, unreported; (since reported in A.I.R. 1985 S.C. 1564), this Court held that a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed. The evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed. So that evidence cannot justify the conviction. The trial court also took the same view. The learned Judicial Commissioner does not seem to have taken a different view.

The learned Judicial Commissioner, however, thought that apart from the evidence about the marriage ceremonies earlier mentioned there was other evidence which would prove the second marriage. He first referred to a statement by the appellant Kanwal Ram that he had sexual relationship with Kubja."

6. The same principle is reiterated in Priya Bal v. Suresh Chandra2, as under:

"According to Mr. Majumdar, when once the priest has given evidence to the effect that the marriage between the respondent and Sandhya Rani has been performed, it follows that all the essential ceremonies that are necessary to constitute a valid marriage must be presumed to have been performed. In any event, when there is evidence to show that the marriage as a fact has taken place, the presumption is that it has taken place according to law. In this connection Mr. Majumdar referred us to various English decisions where on the basis of certain evidence regarding the taking place of marriage between the parties a presumption has been drawn that the marriage must have been solemnized according to law. In our opinion, it is unnecessary to refer to those cases cited by the learned counsel as the position is concluded against the appellant by the decisions of this Court on both points. Section 5 of the Act lays down conditions for a Hindu Marriage. It will be seen that one of the conditions is that referred to in Clause (i) namely, that neither of the parties has a spouse living at the time of the marriage. Section 7 dealing with the ceremonies for Hindu marriage is as follows:

"Section 7 - Ceremonies for a Hindu Marriage.

(1) A Hindu marriage may b