K. K. Rajan v. M. K. Santhamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 20TH DAY OF DECEMBER 2017/29TH AGRAHAYANA, 1939** **Crl.Rev.Pet.No. 1881 of 2003 ( )** **--------------------------------CRA 95/1999 of ADDL. SESSIONS COURT (SPL.), KOTTAYAM DATED 30-05-2003 CC 13/1991 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM DATED 30-04-1999 ------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED :- -----------------------------------------** **K.K.RAJAN, KAVIKKATTUPARAYIL HOUSE, KEEZHTHADIYOOR KARA, LALAM VILLAGE, PALA, MEENACHIL TALUK.** **BY ADVS.SRI.BECHU KURIAN THOMAS SRI.PRAKASH PUTHIADAM** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT :-** **--------------------------------------** **1. M.K.SANTHAMMA, D/O.KUTTAPPAN, MAZHUVANCHERRY KALAYIL VEEDU, PUNNATHURA KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **R1 BY ADV. SRI.JOHN VARGHESE R2 BY PUBLIC PROSECUTOR SRI.T.R.RENJITH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.UBAID, J. -----------------------------------------Crl.R.P. No.1881 of 2003 --------------------------------------------------Dated this the 20[th] day of December 2017** ## **O R D E R** The revision petitioner herein is the 1[st] accused in C.C.No.13/1991 of the Chief Judicial Magistrate Court, Kottayam. He and one Syamala faced prosecution under Section 494 IPC read with Section 34 IPC in the court below on the allegation that while his marriage was subsisting with one Santhamma, he married the 2[nd] accused in accordance with the customary rites and ceremonies at his residence on 31.8.1990. The said Santhamma is the 1[st] respondent herein. She filed complaint against her husband and the alleged second wife, and after necessary enquiry under the law, the learned Magistrate took cognizance under Section 494 IPC. The 1[st] accused pleaded not guilty to the charge under Section 494 IPC. The 2[nd] accused was discharged by the trial court, and the trial further proceeded against the 1[st] accused. The witnesses were again cross examined after recording the plea. 2. The complainant examined herself and three witnesses, and proved Ext.X1 document during trial. The 1[st] Crl.R.P. No.1881 of 2003 -: 2 :- accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C., and projected a defence of total denial of the alleged second marriage. 3. On an appreciation of the evidence, the learned Magistrate found the 1[st] accused guilty. On conviction, the 1[st] accused was sentenced to undergo simple imprisonment for three years, and to pay a fine of `20,000/- under Section 494 IPC, by judgment dated 30.4.1999. Aggrieved by the judgment of conviction, the 1[st] accused approached the Court of Session, Kottayam with Crl.A.No.95/1999. In appeal, the learned Special Additional Sessions Judge confirmed the conviction and sentence, and accordingly, dismissed the appeal, by judgment dated 30.5.2003. Now the 1[st] accused is before this Court in revision challenging the legality and propriety of the conviction and sentence on the ground that there is no legal evidence to prove the alleged offence satisfactorily, beyond reasonable doubt. 4. On a perusal of the entire materials, and on hearing the parties, I find that the complainant has well succeeded in proving her marriage with the revision petitioner, but there is no Crl.R.P. No.1881 of 2003 -: 3 :- proper and legal evidence to prove the alleged second marriage. Even while relying on the oral evidence of PW2 and PW3, to prove the factum of the alleged second marriage, the prosecution relies on the Ext.X1 document also. This is the copy of a registered marriage agreement between the two accused dated 31.8.1990. This marriage agreement was registered at the Sub Registrar's Office, Thodupuzha on 31.8.1990 at about 11.30 a.m. The evidence given by PW2 and PW3 is that they had witnessed the marriage of the 1[st] accused with the 2[nd] accused at his residence on 31.8.1990. Their version is that they reached there at about 9 in the morning, and made an attempt to dissuade the 1[st] accused, cautioning him about the consequences if he contracted a second marriage. Despite their attempts, he proceeded as decided, and thus, married the 2[nd] accused. According to them, they left the house of the 1[st] accused when the participants made preparation for the wedding feast. This means that the two accused had been at the residence of the 1[st] accused till noon on 31.8.1990, and probably by about noon, the second marriage was solemnized. If so, it requires explanation how they happened to execute a marriage agreement, and got it Crl.R.P. No.1881 of 2003 -: 4 :- registered at 11.30 a.m. at Thodupuzha on the same day. Here, the evidence given by PW2 and PW3 becomes suspicious, and rather unbelievable. 5. Of course, the first marriage stands proved in this case. On this aspect, the accused has no dispute also. Admittedly, the complainant is the legally wedded wife of the revision petitioner. The dispute is only regarding the alleged second marriage. It is well settled that in a prosecution under Section 494 IPC, the prosecution must prove both the marriages. Though the alleged second marriage may not have legal validity, such a factum of marriage must be proved, that it was solemnized in accordance with the customary rites and ceremonies. 6. The learned counsel for the first respondent cited some decisions of the Honourable Supreme Court. One is **Gopal Lal v. State of Rajasthan** [(1979) 2 SCC 170], the other is **Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh** [(1971) 1 SCC 864], and the third one is **S. Nagalingam v. Sivagami** [(2001) 7 SCC 487]. In all these cases, the Honourable Supreme Court consistently held that for a prosecution under Section 494 Crl.R.P. No.1881 of 2003 -: 5 :- IPC, the factum of the alleged second marriage must be properly proved, that such a marriage was solemnized in accordance with the customary rites and ceremonies of the parties. There cannot be any dispute on the legal aspects settled by the Honourable Supreme Court. The question here is whether such a second marriage stands proved. 7. PW2 and PW3 claimed to have reached the house of the accused on the request of the complainant, and their mission was to obstruct the second marriage. They stated that they advised the accused, and they even told him about the consequences if he married the 2[nd] accused. Despite such threats, he proceeded with the arrangements for marriage, and accordingly, married the 2[nd] accused. According to them, they reached there at 9.00 a.m., and their evidence shows that they had continued there till noon. As regards the first marriage, they have given evidence regarding the ceremonies of marriage. But such ceremonies are not described in detail as regards the second marriage. Anyway, their own evidence would show that they had been at the residence of the first accused till about noon, and they left the place when preparations for the wedding Crl.R.P. No.1881 of 2003 -: 6 :- feast started. It is not known, how the Ext.X1 marriage agreement happened to be registered at the Registrar's Office at Thodupuzha, on the same day at about 11.30 a.m.. It is not known, why the prosecution relies on the Ext.X1 document, which will negative the oral evidence given by PW2 and PW3. 8. Ext.X1 is only a marriage agreement. This will not prove a legal marriage. A marriage for the purpose of Section 494 IPC must be a marriage solemnized in accordance with the customary rites and ceremonies. There is nothing in the Ext.X1 agreement to show that the parties had undergone any such ceremony before getting the document registered under the Registration Act. There is no mention of any such ceremonies in the Ext.X1 agreement. What this Court finds is the accused Nos. 1 and 2 had only executed a marriage agreement which will not have any validity under the law, and the evidence given by PW2 and PW3 regarding the ceremonies they saw is really artificial. A mere marriage agreement will not constitute a marriage as meant and required under Section 494 IPC. For such a prosecution, the alleged second marriage must be a customary marriage, wherein the parties have undergone the required Crl.R.P. No.1881 of 2003 -: 7 :- customs and ceremonies. I find that the second marriage alleged in this case stands not proved by proper and legal evidence. I also find that the courts below went wrong in accepting the evidence of PW2 and PW3, ignoring the legal and factual aspects of the Ext.X1 marriage agreement. I find that the conviction is liable to be set aside. In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Sections 494 IPC, and accordingly, he is acquitted of the said offence in revision. The conviction and sentence against the revision petitioner in C.C. No.13 of 1991 of the trial court, confirmed in appeal by the Court of Session, Kottayam, in Crl.A.No.95 of 1999, will stand set aside. **Sd/P.UBAID** **JUDGE** //TRUE COPY// P.A. TO JUDGE Jvt/ds 20.12.2017