Judgment

VAIDIALINGAM, J.: - In this appeal by special leave, the appellant challenges the judgment and order of the Calcutta High Court dated January 19. 1968 in Criminal Appeal No. 393 of 1966.

2. The appellant filed a complaint dated April 11, 1963 against the respondent, her husband, in the Court of the Magistrate, Ist Class, Alipurduar, alleging that he has committed an offence under Section 494 of the Indian Penal Code. Briefly her case was as follows:

3. The respondent had married the appellant in or about.l948 according to Hindu rites and both of them had lived as husband and wife together. But sometime before the date of the complaint the respondent began to ill treat her, with the result that she had to reside with her mother and brother. The respondent illegally married one Sandhya Rani as his second wife on May 31, 1962 and they have been living together as husband and wife. As the second marriage has taken place during the subsistence of the appellant s marriage with the respondent, the second marriage is invalid in law and the respondent is guilty of an offense under Section 494 of the Indian Penal Code.

4. The respondent pleaded not guilty of the offence alleged against him. He further pleaded that he has never married the appellant and that the entire prosecution case is false.

5. The trial Magistrate, after considering the evidence adduced both regarding the marriage between the appellant and the respondent as well as the alleged second marriage between the respondent and Sandhya Rani, held that the marriage of the appellant with the respondent was established. Notwithstanding the scantiness of the evidence regarding the second marriage, the Trial Magistrate, however, found that the respondent had admitted the second marriage in his objections filed to a claim made by the appellant for maintenance under Section 488 of the Code of Criminal Procedure. In this view the Magistrate held that there cannot be any doubt that the respondent has married Sandhya Rani while his first wife, the appellant, was still alive. The Magistrate further held that as the marriage with the appellant was subsisting, the second marriage is void under Section 17 of the Hindu Marriage Act, 1955 (Act 25 of 1955) (hereinafter to be referred as the Act) and, therefore, the respondent was guilty of the offence under Section 494 of the Indian Penal Code. The respondent was sentenced for the said offence to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 500/- and in default to suffer rigorous imprisonment for a further period of three months. A further direction was given that half the fine, if realised, was to be paid to the complainant, the appellant.

6. On appeal by the respondent, the learned Sessions Judge, Jalpaiguri by his judgment dated April 30, 1966 held that the evidence does not establish that the essential ceremonies to constitute a valid marriage have been performed either in the case of the marriage claimed to have taken place between the appellant and the respondent or in respect of the alleged second marriage with Sandhya Rani. In this view the learned Sessions Judge set aside the order of the Magistrate convicting the respondent and sentencing him as mentioned above. The respondent was acquitted of the offence under Section 494, I. P. C.

7. On appeal by the appellant, the Calcutta High Court, however, differed from the finding of the learned Sessions Judge regarding the invalidity of the marriage between the appellant and the respondent on the other hand, the High Court held that the evidence establishes that a valid marriage, according to Hindu Law, by which the parties were governed, has taken place between the appellant and the respondent. But regarding the second marriage, the High Court agreed with the finding of the learned Sessions Judge that the essential ceremonies to constitute a valid marriage have not been proved to have taken place . In this view the High Court confirmed the order of acquittal