The Certificate of Marriage issued under Section 16 of the Special Marriage Act, 1954, is not conclusive evidence of the validity of the marriage.

1. The petitioner is one of the five accused in complaint Case No. C/633 of 1971. Opposite Party No. 1 filed the complaint alleging that Miserilal, accused No. 1 in the case, married her according to Hindu rites some 28 years back. Petitioner was engaged as a tuto-ress for their four female children sometime in November, 1968. Because of her objectionable intimacy with Miserilal, her employment as the tutoress was ended in the first part of 1969. She came to know in the later part of 1969 that Miserilal had started living with the petitioner as husband and wife at another address. She had come to learn on enquiry that Miserilal had married the petitioner on 27-9-1969 before a Marriage Officer. The other three accused, with knowledge that Miserilal was married with a wife living signed as witnesses in the second marriage. The learned Magistrate on her complaint summoned the petitioner under Section 494/114 of the Indian Penal Code.

2. Learned Magistrate has, after taking evidence produced by the complainant, framed a charge under Section 494/109 of the Indian Penal Code against the petitioner. She has moved this Court in revision for quashing the charge and the proceeding against her.

3. If a husband having a wife, marries in any case in which the later marriage is void by reasons of its taking place during the lifetime of the wife of the former marriage, he commits an offence under Section 494 of the Indian Penal Code. A person is punishable under Section 109 of the Indian Penal Code if he abets an offence and the abetted offence is committed in consequence of his abetment and no punishment is prescribed far the abetment. It is, therefore, necessary, for framing a charge under Section 494/109 of the Indian Penal Code against the petitioner to establish (1) that an offence under Section 494 has been committed and (2) that it has been committed in consequence of the petitioner's abetment i.e., with the aid given by the petitioner.

4. There is a catena of decisions of the Supreme Court to the effect that the later void marriage in case of a charge under Section 494 has to be satisfactorily proved. In case of a marriage according to Hindu rites it is to be proved that (a) saptapadi and (b) homam were performed and observed in celebrating the second marriage. In this case the evidence is that Miserilal and the petitioner were married according to Hindu rites and that they later had that marriage registered under the provisions of the Special Marriage Act, 1954. No evidence as to the performance of the saptapadi and homam in celebration of the marriage between Miserilal and the petitioner according to Hindu rites has been given. The complainant has sought to prove the later void marriage with the petitioner placing reliance on the Certificate of Marriage (Exp. 2) granted under Section 16 of the Special Marriage Act, 1954. The submission is that the certificate proves the marriage.

5. This contention does not appear to me to be sound. Chapter II of the Special Marriage Act, 1954, to be hereafter called the Act, deals with solemnization of special marriages. Chapter III of the Act deals with the registration of marriages celebrated in other forms. For a marriage solemnized under Chapter II the Certificate of Marriage is issued under Section 13. Sub-Section (2) of Section 13 is that the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under the Act has been solemnized and that all formalities respecting the signature of witnesses have been complied with. For a marriage celebrated in other forms but registered under Chapter III the Certificate is issued under Section 16 and has the effect as laid down in Section 18. The registration of marriage celebrated in any other form has two-fold effect :

(i) notwithstanding any defect as to the validity of the original marriage in any other form it is validated by such registration under Section 16; and

(ii) whatever question there might be with regard to the l