The judgment established the interpretation of divorce under Muhammadan Law and the requirement of mens rea under S.494 I. P. C.

1. This appeal is by the complainant in a private prosecution for offences under S.494 and 114 I. P. C. and is directed against the judgment of acquittal entered by the court below.

2. The complainant had married the 1st accused in Mithunam 1116. They both came from the village of Thalayolaparamba in North Travancore and belonged to the Shia sect of Muslims. They lived together cordially till 22-9-1121 when the 1st accused left the complainant for her father the 2nd accused's house for good. According to her, she was driven out forcibly by the complainant after divorcing her by words of "Talak" pronounced. She accordingly filed suit O. S.426 of 1122 on the file of the Vaikom Munsiff's Court for recovery of Mahar and also certain movables The court however found against the allegation of divorce by the complainant, but still gave judgment in favour of the 1st accused for the value of the movables: vide Ext P-4 judgment dated 17-6-52. While that suit was pending, the complainant filed O. S.175/1124 before the Alleppy District Court, against the 1st accused and her father as 1 and 2 defendants, for restitution of conjugal rights. That suit was contested by the 1st accused on the plea of divorce by the complainant already alleged in her own previous suit and alternatively on grounds of cruelty and ill-treatment at his hands. The District Judge found against the 1st accused on her primary plea as to divorce but upheld her alternative plea as to cruelty and ill-treatment and in the result dismissed the suit by his judgment Ext. P-7 dated 8-1-52. It was indeed based upon this judgment that the learned Munsiff, entered his finding in Ext P-4 judgment above referred to. The complainant took up the matter before the High Court of Travancore-Cochin as A. S.305/57, but without success -vide Ext P-5 judgment dated 20-1-1954.

3. On 10-5-1954, the 1st accused sent Ext. D-1 registered card the complainant intimating the fact of her having effected divorce of the complainant "Fasakh" on the ground of his failure to maintain her from 1121 onwards. This letter returned to her as refused She sent further letter Ext D-2 on 18-5-1954 referring once again to the matter of the "fasakh", but this also came back refused. Subsequently, on 18-5-1955 she married the third accused and it may be added that a child has been born to her of this union.

4. This complaint was thereafter filed before the Sub-Divisional Magistrate, Kottayam on 9-7-1956 on the footing that there was and could have been no divorce of the complainant by the 1st accused by her "'fasakh" on 10-5-1954 as claimed by her and her second marriage with the 3rd accused was therefore bigamous under S.494 I.P.C Accused 2,4 and 5 were charged with abetment of the accused 1 and 3 under S.404 and 114. The 2nd accused as already mentioned is the father of the 1st accused. The 4th accused is the sister's husband of the 3rd accused and the 5th accused is the priest who officiated at the second marriage. The learned Sub-Divisional Magistrate dismissed the complaint under S.203 Crl. P.C. after examining the complainant on oath, on the ground that no prima facie case was disclosed against the accused. However in revision the case was remanded for re-trial. It was later filed as C. C. 34 of 1956 on the file of the District Magistrate, Kottayam. Pending trial the accused 2 & 4 died. The learned District Magistrate has now by the judgment herein acquitted the accused, 1, 3 and 5 under S.258 (1) Crl. P. C.

5. In arriving at his conclusion, the learned District Magistrate found (1) that the 1st accused did conduct a divorce of the complainant on 10-5-1954, (2) that the divorce was however unauthorised by the Muhammadan Law governing the matter, (3) that therefore the subsequent marriage of the 1st and 3rd accused on 18-8-1955 though conducted with all religious formalities was a void marriage and (4) that nevertheless the accused were entitled to acquittal because they had no criminal intention and t