In order to sustain a charge of bigamy under Section 494 of the Indian Penal Code, the prosecution must prove beyond reasonable doubt that the first marriage was a valid marriage.

( 1 ) THIS is a rule directed against the order passed by the Presidency Magistrate, convicting the petitioner under Section 494 Indian Penal Code and sentencing him to rigorous imprisonment for three months.

( 2 ) THE facts of the case are as follows: one Sovarani Dutta made a complaint to the effect that she was married with the petitioner according to Hindu rites, on the 1st of May, 1962 and she lived with the petitioner as husband and wife for sometime till November, 1962 and then the petitioner married for the second time under the Special Marriage Act of 1954 on the 24th of January, 1963.

( 3 ) ON these allegations the petitioner was charged under Section 494 Indian Penal Code for marrying again when he had a wife living. The petitioner pleaded not guilty to the charge. His defence was that he never married Sovarani, the complainant.

( 4 ) THE Learned Magistrate found the charge under Section 494 Indian Penal Code proved and convicted the petitioner.

( 5 ) THERE is no dispute on the point that the petitioner married one Manika Sarkar under Act XLIII of 1954 on 24th of January, 1963. Exhibit II is the certificate of marriage given by the Marriage Officer under Section 13 of Act XLIII of 1954. The question is if Sovarani is the wife of the petitioner.

( 6 ) SECTION 494 Indian Penal Code reads as follows: "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 punishable. . . . . " section 17 of the Hindu Marriage Act renders a marriage solemnised after the commencement of the Act void if at the date of such marriage the party had a wife living and the provisions of Sections 494 and 495 Indian Penal Code are then made applicable.

( 7 ) SO the provision of Section 494 Indian Penal Code is attracted when a person marries after the commencement of the Hindu Marriage Act when he has a wife living.

( 8 ) THE law prohibits and makes punishable a husband who marries for the second time during the lifetime of the first wife. It is a settled principle of law that in order to attract the penal provision of Section 494 Indian Penal Code it must be shown that the subsequent marriage was solemnised upon due performance of the essential ceremonies upon which only a marriage becomes a valid marriage.

( 9 ) HERE it is conclusively proved that the petitioner had married Manika Sarkar and that marriage had been in accordance with law and therefore duly solemnised to make it a valid marriage. The contention of the petitioner is that Sovarani cannot be said to be his wife as there was no marriage between him and Sovarani celebrated with proper ceremonies and in due form. Obviously, if the marriage between the petitioner and Sovarani had not been solemnised with due performance of the ceremonies, Sovarani even though alive cannot be said to be the wife of the petitioner and in that sense the marriage of the petitioner with Manika Sarkar does not become void and such marriage does not make the petitioner punishable under Section 494 Indian Penal Code.

( 10 ) THE essential elements needed to be established to make a person punishable under Section 494 Indian Penal Code, are as follows: (1) There must be a wife living. (2) There must be another marriage by reason of its taking place during the life of the wife.

( 11 ) SO while Section 17 of the Hindu Marriage Act renders a second marriage of a male Hindu during the lifetime of an existing wife void, the husband marrying for the second tune is also punishable under Section 494 Indian Penal Code. In the case reported in Bhaurao Sankar Lokhande v. State of Maharashtra, it had been held that it is essential for the purpose of Section 17 of the Act that the marriage to which Section 494 Indian Penal Code applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form and that merely going through certain ceremoni