JUDGMENT - M.F. SALDANHA, J.:---An issue of immense sociological importance has been thrown up for a decision in this appeal, which I am summarising as follows :

What is the degree and nature of proof that is required for purposes of establishing an offence under section 494 of the Indian Penal Code, and more importantly, is it obligatory that the complainant must as of necessity prove that all necessary rites and ceremonies have been complied with in respect of the alleged second marriage. Conversely, whether a conviction for bigamy is sustainable if there is other reliable evidence to establish the charge ?

2. The offence of bigamy, hits at the very root of the social institution of marriage and the framers of the Indian Penal Code have categorically classified it as a serious criminal offence, having regard to its deleterious fall-out on the subsisting marriage. This offence is often alleged but rarely held to be proved before the courts. While intepreting section 494, I.P.C., which has been the subject-matter of many decisions of the High Courts and the Supreme Court on different facts and circumstances, the Court has to bear in mind that a party contracting a second marriage during the subsistence of the first one, is essentially put on guard by the fact that the consequences could be serious to both the persons involved in that act and invariably, therefore, keeps the marriage; particularly the ceremony part of it, as secret as possible. The aggrieved spouse is confronted with a situation of the parties living together, openly professing to be husband and wife, possibly acknowledging the paternity of the children. When these facts are complained of before a Court of law in a proceeding under section 494 I.P.C., the aggrieved spouse is confronted with the legal requirement of proving the factum of the second marriage and in absence of being able to do so, in the majority of prosecutions under section 494 I.P.C., the wrong-doer is acquitted by the Criminal Courts. Section 494 I.P.C. reads as follows :

"494. Marrying again during lifetime of husband or wife.---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.

Explanation.---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 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".

Mr. Nitin Jamdar, the learned advocate appearing on behalf of the appellant, in the present case, has started his address with the submission that the interpretation of section 494 I.P.C. and its application by the courts should not result in the section becoming redundant but that, for very valid reason, a constructive and healthy interpretation and realistic and practical one be put to it so that the genuinely aggrieved spouse can ensure that the wrong-doer is punished by the Criminal Courts.

3. I shall briefly recount the facts that have given rise to this appeal. The appellant-wife Smt. Indu Bhagya Natekar field a Criminal Complaint, being Criminal Case No. 2531 of 1978 in the Court of the Chief Judicial Magistrate. Thane, against her husband Bhagya Pandurang and the husband's cousin Ganpat. Dharma Natekar alleging that during the subsistence of her marriage with the husband, he had c

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