JUDGMENT: The complainant before the trial Court has come forward with the instant appeal against order of the XI Metropolitan Magistrate, Saidapet, Madras in C.C.No.2223 of 1985.

2. This appeal has arisen in this way:

The complainant is the legally wedded wife of the accused Nagalingam. The marriage between the complainant and the accused was celebrated on 6.9.1970 in Keelkolathur Village in Cheyyar Taluk in North Arcot District. In the lawful wedlock, three children were born to them. Later, the husband ill-treated the wife, as a result of which she had live away from him. Later, she came to know that the husband took one Kasthuri as the second wife on 18.6.1984. She came to know that the marriage was performed in R.C.C. Marriage Hall, at Thiruthani Temple as per the Hindu rites. She had preferred a private complaint before the learned Metropolitan Magistrate against the husband and certain other persons in C.C.No.2223 of 1985. The learned Metropolitan Magistrate conducted the trial and came to the conclusion that the offence is not established and accordingly acquitted all the accused. As against the acquittal, the complainant preferred Criminal Appeal No.67 of 1992. This Court passed orders on 1.11.1996 setting aside the acquittal of the husband and directed the trial Court to hold trial and decide the matter. At the time of the earlier trial, the complainant had examined herself as P.W.1. She had examined one Panchatcharam, a clerk employed in Thiruthani temple, who was maintaining the books and registers where entries relating to the marriages are entered into and also P.W.3 Kameswara Rao, the prohit, who had solemnized the marriage. She had produced three documents, namely a letter issued on 11.4.1995 by Subramania Swamy temple, Ex.P-2 xerox copy of the forms to be filled up for seeking permission for marriage and Ex.P-3 the copy of the certificate issued by the Village Officer to the effect that the marriage between the accused and his second wife Kasthuri was the first marriage for them. The accused had not let in any oral or documentary evidence. After remand, the complainant recalled Kameswara Rao, the prohit and examined him. The prohibit had given all the details of the ceremonies that were performed at the time of the solemnization of the marriage. After following the procedure, the learned Metropolitan Magistrate again came to the conclusion that ‘Sapthapathi’ had not been performed and therefore, the second marriage is not a validly solemnized marriage to attract the provision of Sec.17 of the Hindu Marriage Act to make the second marriage as bigamous marriage and accordingly acquitted the accused. As against the acquittal, the wife/ complainant has come forward with the instant criminal appeal.

3. Heard both the sides. The only ground on which the learned Metropolitan Magistrate had acquitted the accused is that the appellant herein had not established that the marriage between the accused and Kasthuri was a bigamous marriage. Sec.494, I.P.C. recites as under:

“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. Exception: The 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 such 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 co

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