In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it, must be proved.

Judgment

SARKAR

( 1 ) THIS appeal arises out of a conviction for bigamy and for the abetment of it under Sections 194 and 109 of the Indian Penal Code. The trial Court acquitted the accused persons but on appeal the Judicial Commissioner of Himachal Pradesh convicted them. Hence this appeal.

( 2 ) ORIGINALLY four persons were charged, namely, Kubja the bride, Kanwal Ram the bridegroom, Hira Nand and Seesia both relations of the bride, the latter two having been charged under S. 494 read with S. 109 for abetment of the offence of bigamy committed by the two first mentioned accused. The charges were framed on the complaint of Sadh Ram to whom Kubja had been earlier married. The complainant had also implicated Hiroo, the mother of Kubja but she was discharged by the Magistrate. Hira Nand died pending the appeal in this Court.

( 3 ) SADH Ram was married to Kubja sometime in 1940-41. The marriage between the appellant Kanwal Ram and Kubja is said to have taken place in September 1955 By this time the Hindu Marriage Act. 1955 had come into force and it prohibited the marriage of a Hindu during the lifetime of his or her spouse. The parties belong to a village in Himachal Pradesh among whom a customary form of marriage called Praina, is recognised. Both the marriages were performed according to that form. The marriage of Kubja with Sadh Ram though originally challenged is now accepted. The only question is whether the second marriage of Kubja, that is to say, between Kubja and kanwal Ram, has been proved.

( 4 ) THE evidence would show that for a marriage in this form the following ceremonies are essential. First some agnatic relation of the bridegroom goes to the brides house and offers her "suhag". Thereafter, a relation of the bride who is called prianu, brings her to the house of the bridegroom. There at the door of the house of the bridegroom coins are put in a pot and then Puja and Katha (reading of holy scriptures) are held. The bride then picks up the pot and takes that to the family hearth and bows there. Then she makes obeisance to the father-in-law and the mother-in-law and other elders in the family. Lastly, with feasting the ceremonies end. The complainant Sadh Ram himself admitted that puja at the entrance and bowing at the hearth by the bride after she had picked up the pot were compulsory ceremonies. He added, "if any one of these ceremonies is not performed, then the marriage is not complete. "

( 5 ) NOW all that the only witness who spoke about the ceremonies observed at the marriage of Kubja and Kanwal Ram said was that Seesia had brought the suhag and Hira Nand acted as Prainu. He does not mention any of the other ceremonies to which we have earlier referred.

( 6 ) 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, Cri. Appeal No. 178 of 1963, unreported : (since reported in AIR 1965 SC 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.

( 7 ) 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. We are entirely unable to agree that this, even if true, would at all prove his marriage with Kubja. Then the learned Judicial Commissioner relied on a statement filed by Kubja, Hira Nand and Hiroo in ans