A second marriage during the subsistence of the first marriage is void under section 17 of the Hindu Marriage Act, 1955, and attracts the provisions of sections 494 and 495 of the Indian Penal Code. However, only a valid marriage solemnized in accordance with the essential requirements of Hindu Law, including the ceremonies of homa and saptapadi, would be considered a void marriage under section 17.

( 1 ) THIS appeal is by the husband, whose complaint against his wife and others for the offences under section 494 and 494 read with section 109, Indian penal Code had resulted in acquittal of the accused of the charges against them.

( 2 ) IN the complaint he alleged that on 14th May, 1966, he had married A-1, who is the daughter of A-3 at their house at China Lingala Village according to hindu Dharmasastra and thereafter she resided with him for five years and then left him, that the second marriage of A-1 with A-2 was proposed to be performed on 18th June, 1970 at 10-40 A. M. in the kanakadurga temple situated at Vijayawada, but for reasons best known to them, the venue was changed and the marriage was performed at Sri Venkateswaraswamy temple in Jamalapuram village of Madhira Taluk, that A-1 to A-3 knowing that a-1 s marriage with the complainant was not dissolved, got the second marriage of a-1 with A-2 performed without obtaining a decree for divorce and they had thereby committed an offence under section 494, Indian Penal Code, that a-4 and A-5 who were mediators at the first marriage, had organised and attended the second marriage between A-1 and a-2 and thereby they had committed the offence under section 494 read with section 109, Indian Penal Code.

( 3 ) IN order to prove the first marriage, the complainant had examined himself and also P. Ws. 5 and 7 who had attended the marriage as well as P. W. 6 the purohit who officiated at the marriage besides filing Exhibit P-1 the marriage invitation card. To prove the second marriage he had examined P. W. 2 the Archaka who had presided over the marriage in the Sri Venkateswara Swamy temple at jamalapuram and also P. Ws. 3 and 4 the clerk and the executive officer of the said temple and got filed Exhibit P-2 the wedding invitation card for that marriage, exhibit P-3 the marriage register of the said temple containing the relevant entry exhibit P-4 with the signature Exhibit P-5 of P. W. 2, and also Exhibit P-6 the counterfoil of the receipt book for the receipt issued for the payment of money for performing the said marriage in the temple.

( 4 ) THE Magistrate on a consideration of the evidence found that the first marriage between the complainant and A-1 as well as the second marriage between a-1 and A-2 did in fact take place. He however held that it is not clear whether the marriage between the complainant and A-1 had been performed according to law or the caste custom and with regard to the second marriage, he held that the complainant has failed to establish that the marriage between A-1 and a-2 has been solemnized in accordance with customary rights as required by section 7 of the Hindu Marriages Act, that it was not performed in accordance with the essential requirements of a valid marriage under Hindu Law, as the two essential requirements of invocation before the sacred fire and Saptapadi i. e. , taking of seven steps by the bride and bride-groom together around the sacred fire, have not been performed, that the marriage does not come within the expression of "solemnized" occurring in section 17 of the said Act and does not attract the mischief of section 494, Indian Penal Code, and acquitted all the accused of the charges against them. Hence this appeal.

( 5 ) THOUGH section 494 Indian Penal code, making bigamy an offence has been in the statute book, i. e. , Indian Penal code since 1860, bigamous or polygomous marriages amongst Hindus did not constitute an offence, as such marriages under hindu Law were valid and section 494 indian Penal Code made only second marriages which are void by reason of its taking place during the life time of the husband or wife punishable. It is only the passing of the Hindu Marriage Act of 1955 by virtue of section 17 which made the second marriage during the life-time of any of the spouses void, that attracted the provisions of sections 494 and 495 Indian Penal Code Though it was not necessary to state it, this section itself provide

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