The necessity of proving the essential ceremonies and rites of the second marriage for sustaining a conviction under S.494 IPC.

1. The revision petitioner stands convicted on a charge under S.494 IPC. and sentenced to R. I. for 8 months and also to a fine of Rs. 100. The conviction and sentence passed by the Sub Divisional Magistrate, has been confirmed by the Sessions Judge in appeal.

2. The revision petitioner had married the complainant, Rajamma on 19 51957 and while that marriage was subsisting he contracted another marriage with the 2nd accused, Radha on 29-51968. It is on these facts that the complaint was preferred. Both the accused denied the charge. The main point argued at the final stage of the trial was that the alleged second marriage with the 2nd accused was not proved by satisfactory evidence and as such the charge is unsustainable. Repelling this contention, the conviction has been entered by the courts below.

S. 494 IPC. reads:

"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

To constitute the offence it is essential that both the marriages should be valid and in accordance with the essential religious rites of the parties thereto. In the present case, I do not think the factum of the first marriage having taken place in accordance with the customary and religious rites of the parties, can be disputed. pws. 2 to 5 have given cogent evidence in support of it. Of these, pw. 3 was at the time the secretary of the local N. S. S. Karayogam. He witnessed the marriage in his official capacity and pw. 4 is the uncle of the complainant. He was present at the marriage and has sworn to the various details of the ceremony. pw. 5 is a retired head clerk of the Sub Registrar's office and he too supports the complainant's case that she was married by the 1st accused in accordance with the religious rites obtaining in the community. There is documentary evidence also. For instance, Ex. PI is the N. S. S. Karayogam register, on page 10 of which the couple have affixed their signature. There is also Ex. P2, the certified copy of the register of marriages of Nairs in Vaikom talk maintained by the Revenue Officials.

3. Coming to the alleged second marriage, we are confronted with difficulties. Evidence is sadly lacking in support of it. The only person who swears to have been present at the function is pw. 6, a neighbour. The second marriage is stated to have taken place at the Guruvayoor temple. pw. 6 claims to have been present in the temple at the time. He had gone there in connection with another marriage for which he had invitation. At that time he happened to witness the instant marriage also. As an after-thought he stated in the course of cross-examination that he was invited for this marriage also. But from the way in which he made this admission it is difficult to accept it at its face value. That apart, it is doubtful whether the alleged second marriage could be said to have been proved by his evidence. To render his evidence acceptable to prove the marriage, it is necessary that he should speak to the relevant details regarding the ceremony. This he does not do and he was not able to do also. About the ceremony as such all that he would swear is: has not been made clear. The most important requirement so far as a Nair marriage (the parties are Nairs, governed by the Nayar Act) is concerned is the presentation of cloth to the female by the male. The relevant section of the Travancore Nayar Act reads (S. 3):

"The conjugal union of a Nayar female, subject to the restrictions of consanguinity and affinity, with

(i) a Nayar male or,

(ii) any male other than a Nayar with whom conjugal union is permitted according to recognised social custom and usage, openly solemnised by the presentation of cloth to the female by the male, whether so solemnised before the date on which Regulation I of 1088 came into force and subsisting on such, date or so solemnised subsequent to that date, shall be deemed to be a valid marria