Bhupen Nath v. the State of Assam and Anr.

Gauhati HC18 Mar 2025Crl.Rev.P./60/2011

Case brief

AI extract

What is this about?

Gauhati High Court, Kaushik Goswami J, 19.03.2025 — CRL.REV.P. No.60 of 2011 — bigamy / Section 494 IPC — essential ceremonies under Section 7 Hindu Marriage Act, 1955 — priest's bare deposition and marriage certificate insufficient to prove valid second marriage — conviction and sentence quashed, petitioner acquitted — Dolly Rani (2025) 2 SCC 587, Bhaurao Shankar Lokhande AIR 1965 SC 1564, Priya Bala Ghosh (1971) 1 SCC 864, Gopal Lal (1979) 2 SCC 170 relied on.

What did the court decide?

Criminal revision petition allowed; judgment & order dated 18.12.2006 of S.D.J.M. (S), Goalpara in G.R. Case No. 1047/2004 and judgment & order dated 11.01.2011 of the Sessions Judge, Goalpara in Criminal Appeal No.3/2007 set aside and quashed; petitioner acquitted; bail bonds discharged; interim order passed earlier made absolute. ¶¶139

Bhupen Nath Vs the State of Assam and Anr. — Matrimonial and Divorce | Gauhati HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the appellate Court committed any error in law in presuming the second marriage in question on the basis of the evidence of the Priest. +1 more

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Court's answer

Essential ingredients of an offence under Section 494 IPC: (i) the accused spouse contracted a first marriage; (ii) while the first marriage was subsisting, contracted a second marriage; and (iii) both marriages are valid in the sense that the necessary ceremonies required by the personal law governing the parties were duly performed.

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Ratio / Principle

Since validity of both marriages is an essential ingredient of an offence under Section 494 IPC, unless and until performance of the requisite ceremonies is established, no offence under Section 494 IPC is attracted.

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Key takeaways

There has to be specific evidence of the performance of the requisite ceremonies for constituting a valid marriage; the evidence of a Priest who merely states that he solemnised the marriage according to Hindu rites and customs, without saying anything more, is not sufficient to hold the marriage valid under the law.ratio¶¶111
A mere deposition of a Priest that the marriage was performed as per Hindu rites and customs, together with the Marriage Certificate issued by him, is not sufficient to hold a marriage valid under Section 7 of the Act, 1955.ratio¶¶112

Detailed headnote1 paragraphs

CRIMINAL REVISION (S.401 CrPC) AGAINST CONVICTION UNDER S.494 IPC (BIGAMY) — Petitioner convicted of marrying one Arati Nath during the subsistence of his first marriage; second marriage said to have been performed 'as per Vedic rites' per PW-6 (Priest) and evidenced by Marriage Certificate (Exhibit-2) — Held: validity of both marriages is an essential ingredient of an offence under S.494 IPC; under S.7 Hindu Marriage Act, 1955 a marriage is 'solemnised' only when celebrated/performed with proper ceremonies in due form — a bare deposition of a Priest that the marriage was performed as per Hindu/Vedic rites, and a Marriage Certificate that does not indicate the rites and customs performed, are not sufficient proof of the requisite essential ceremonies (relying on Dolly Rani, Bhaurao Shankar Lokhande, Smt. Priya Bala Ghosh and Gopal Lal) — the four witnesses named in the Marriage Certificate were not produced or examined and an adverse inference could be drawn against the prosecution — findings of the trial Court (S.D.J.M. (S), Goalpara, 18.12.2006) and the appellate Court (Sessions Judge, Goalpara, 11.01.2011) that the second marriage was valid are palpably and manifestly erroneous and totally perverse — both judgments set aside and quashed; petitioner acquitted; bail bonds discharged; interim order made absolute.

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GAHC010004012011

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2025:GAU-AS:3312

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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

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CRL.REV.P. NO.60 OF 2011

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Sri Bhupen Nath, S/o- Late Motilal Nath, R/o- Village Baguan, at present resident of Bapujinagar, P.S & District- Goalpara, Assam.

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…….Petitioner

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-Versus-

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1. The State of Assam.

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2. Smti. Dipti Rani Devi, D/o- Late Upen Debnath, R/o- Village Dahikata, P.S.- Mornoi, District- Goalpara, Assam.

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…….Respondent

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– B E F O R E –

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HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

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For the Petitioner(s) : Mr. H. K. Nath, Advocate.

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For the Respondent(s) : Ms. S. H. Bora, Additional Public Prosecutor, Assam.

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Page 1 of 25

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Mr. K. Sarma, Advocate for respondent No.2.

Date of Hearing

: 19.03.2025.

Date of Judgment

: 19.03.2025 .

JUDGMENT & ORDER (ORAL)

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Heard Mr. H. K. Nath, learned Counsel for the petitioner. Also heard Ms. S. H. Bora, learned Additional Public Prosecutor for the State respondent and Mr. K. Sarma, learned Counsel appearing for the respondent No.2.

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2. This application is filed under Section 401 of Criminal Procedure Code, 1973, challenging the judgment & order dated 11.01.2011 passed by the learned Sessions Judge, Goalpara in Criminal Appeal No.3/2007 upholding the judgment & order passed by learned S.D.J.M., Goalpara in G.R. Case No. 1047/2004, whereby the petitioner was convicted under Section 494 of the Indian Penal Code (hereinafter to be referred as “IPC”) and sentenced for 1 year Rigorous Imprisonment with fine of Rs. 3,000/- in default to undergo 6(six) months of Simple Imprisonment.

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3. The brief facts of the case is that the respondent No.2 filed a complaint before the Chief Judicial Magistrate, Goalpara, alleging inter-alia that the petitioner/accused married one Smt. Arati Nath during the subsistence of her marriage with the petitioner/accused. Accordingly, the complaint was sent to the In-charge of jurisdictional Police

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Station for enquiry. Thereafter, the jurisdictional police station after enquiry registered a case No. G.R. 1047/2004 and after investigation filed Charge-sheet under Section 498-A/494/496/419 of IPC. Thereafter, the trial Court framed charge under Section 498-A/494 of IPC against the petitioner/accused and conducted the trial. After the conclusion of trial, the trial Court convicted the petitioner/accused under Section 494 of IPC and sentenced him thereof.

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4. Situated thus, an appeal was filed before the Court of Sessions, Goalpara, wherein the appellate Court by judgment & order dated 11.01.2011 was pleased to dismiss the appeal by upholding the judgment and conviction of the trial Court. Against the aforesaid judgment & order of the appellate Court, the present criminal revision petition has been filed.

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5. Mr. H. K. Nath, learned Counsel for the petitioner submits that the judgment of the learned appellate Court as well as the trial Court is totally perverse inasmuch as there is no evidence of the alleged second marriage to have been performed by following the requisite essential ceremonies. He submits that in order for a marriage to be valid under Section 17 of the Hindu Marriage Act, 1955 (hereinafter referred to as “Act, 1955”) the requisite essential ceremonies have to be followed. He accordingly, submits that the finding of the appellate Court as well as the trial Court that there was a valid second marriage is patently and manifestly erroneous and therefore, the

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judgment of the appellate Court is liable to be interfered with. In support of the aforesaid submission, he relies upon the following decisions:

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(i) Dolly Rani Vs. Manish Kumar Chanchal , reported in (2025) 2 SCC 587 .

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(ii) S. Nitheen and Others Vs. State of Kerala and Others , reported in (2024) 8 SCC 706 .

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(iii) Bhaurao Shankar Lokhande Vs. State of Maharashtra , reported in AIR 1965 SC 1564.

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(iv) Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh , reported in (1971) 1 SCC 864 .

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(v) Gopal Lal Vs. State of Rajasthan , reported in (1979) 2 SCC 170.

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6. Per contra, Mr. K. Sarma, learned Counsel for the respondent No.2/complainant submits that it has clearly come out from the evidence of the Priest (PW-6) that he has conducted the second marriage of the petitioner/accused with one Arati Nath as per the Vedic rites. He further submits that PW-6 has further exhibited the Marriage Certificate in support of the second marriage. He accordingly, submits that there being evidence as regards the second marriage based on which both the appellate Court as well as the trial Court has held the petitioner guilty under Section 494 of IPC ought not be interfered by this Court under revisional jurisdiction.

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7. Ms. S. H. Bora, learned Additional Public Prosecutor, Assam, submits that the evidence of the Priest

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(PW-6) is corroborated by the evidence of PW-1, PW-2, PW-7 & DW-3, and therefore, there is no manifest error apparent on the face of the record calling for interference of this Court.

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8. I have given my prudent consideration to the arguments advanced by the learned Counsel appearing for the contending parties and have perused the material available on record. I have also considered the case laws cited at the bar.

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9. The issue that falls for determination in this revision petition is whether the appellate Court has committed any error in law in presuming the second marriage in question on the basis of the evidence of the Priest.

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10. Apt at the outset to refer to Section 7 of the Act, 1955, which is reproduced hereunder for ready reference:

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“ 7. Ceremonies for a Hindu marriage .-(1) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.

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(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken .”

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11. Thus, in order to attract the provision of Section 7 of the Act, 1955, the impugned marriage must have been solemnized, i.e. marriage should have been celebrated or performed with proper ceremonies in due form. In other

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words, if the marriage is not a valid marriage, it is no marriage in the eyes of the law.

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12. Apt at this juncture to refer to Section 494 of the IPC, which is reproduced hereunder for ready reference:

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“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.

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Exception. This 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 contracted of the real state of facts so far as the same are within his or her knowledge.”

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13. From perusal of Section 494 of IPC, it appears that essential ingredients of this offence are (i) that the accused spouse must have contracted the first marriage, (ii) that while the first marriage was subsisting, the spouse concerned must have contracted the second marriage, and (iii) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.

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14. What transpires from the above is that to attract Section 494 of IPC, there has to be evidence to indicate

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that the accused has married another person during the subsistence of his marriage with his first wife and both the marriages have been performed with the essential ceremonies required by the personal law governing the parties.

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15. In the present case, there is no dispute as regards the validity of the first marriage is concerned, however, as regards the second marriage in question is concerned, validity of which is in dispute, both the trial Court as well as the appellate Court has held the said second marriage valid, firstly, as per the deposition of the Priest that he had performed the said marriage as per Vedic rites and, secondly, as per the Marriage Certificate (Exhibit-2). Therefore, the question falls for determination is whether such evidence of the Priest deposing that the marriage is performed as per Vedic rites and the Marriage Certificate issued by him is sufficient for holding the second marriage in question valid or not as per Section 7 of the Act, 1955.

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16. In the case of Dolly Rani (Supra) , the Apex Court has held that the words solemnized in sub-section (1) of section 7 of the Act, 1955 means to perform the marriage with ceremonies in proper form. Relevant paragraphs of the aforesaid decision of the Apex Court are reproduced hereunder for ready reference:

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“15. Section 7 of the Act reads as under:

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‘7. Ceremonies for a Hindu marriage .-(1) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.

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16. Section 7 of the Act speaks about ceremonies of a Hindu marriage. Sub-section (1) uses the word ‘solemnised’. The word ‘solemnised’ means to perform the marriage with ceremonies in proper form. Unless and until the marriage is performed with appropriate ceremonies and in due form, it cannot be said to be ‘solemnised’. Further, subsection (2) of Section 7 states that where such rites and ceremonies include the saptapadi i.e. the taking of sever steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. Therefore, requisite ceremonies for the solemnisation of the Hindu marriage must be in accordance with the applicable customs or usage and where saptapadi has been adopted, the marriage becomes complete and binding when the seventh step is taken.

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17. Where a Hindu marriage is not performed in accordance with the applicable rites or ceremonies such as saptapadi when included, the marriage will not be construed as a Hindu marriage. In other words, for a valid marriage under the Act, the requisite ceremonies have to be performed and there must be proof of performance of the said ceremony when an issue/controversy arise. Unless the parties have undergone such ceremony, there would be no Hindu marriage according to Section 7 of the Act and a mere issuance of a certificate by an entity in the absence of the requisite ceremonies having been performed, would neither confirm any marital status to the parties nor establish a marriage under the Hindu Law.

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18. A perusal of the marriage certificate produced in the instant case along with the application filed under Article 142 of the Constitution of India states that the ‘marriage’ between the parties has been solemnised according to Hindu Vedic rites and customs. The certificate issued by Vadik Jankalyan Samiti (Regd.) in the absence of any indication as to the rites and customs that were performed and as to whether the requirements under Section 7 of the Act were complied with would not be a certificate evidencing a Hindu marriage in accordance with Section 7 of the Act.

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35. The Hindu Marriage Act, 1955 solemnly acknowledges both the material and spiritual aspects of this event in the married couple's lives. Besides providing a mechanism for registration of marriages in order to confer the status of a married couple and acknowledge rights in personam and rights in rem, a special place is given to rites and ceremonies in the Act. It follows that the critical conditions for the solemnising of a Hindu marriage should be assiduously, strictly and religiously followed. This is for the reason that the genesis of a sacred process cannot be a trivial affair. The sincere conduct of and participation in the customary rites and ceremonies under Section 7 of the Hindu Marriage Act, 1955 ought to be ensured by all married couples and priests who preside over the ceremony.

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36. The promises made to each by the parties to a Hindu marriage and the oath taken by them to remain friends forever lay the foundation for a lifelong commitment between the spouses which should be realised by them. If such commitment to each other is adhered to by the couple, then there would be far fewer cases of breakdown of marriages leading to divorce or separation.

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37. But in the instant case, the above parameters have not been followed by the parties herein. In the circumstances, we declare that the ‘marriage’ dated 7-7-2021 between the parties is not a ‘Hindu marriage’ having regard to the provisions of Section 7 of the Act. Consequently, the certificate issued by the Vadik Jankalyan Samiti (Regd.) dated 7-72021 is declared null and void. In view of the above the Certificate issued under the Uttar Pradesh Registration Rules, 2017 dated 7-7-2021 is also declared null and void.”

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17. Reading of the aforesaid judgment, it appears that the Apex Court has clearly held that in order for a marriage to be valid under the Act, 1955, the requisite ceremonies have to be performed and there must be proof of performance of the said ceremony when an issue/controversy arises. In the context of a Hindu marriage, the Apex Court in the said decision held that the marriage has to be solemnized in accordance with the

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applicable customs or usage and where Saptapadi has been adopted, the marriage becomes complete and binding when the 7^th step is taken. Accordingly, the Apex Court observed that unless the parties have undergone such ceremony, there would be no valid Hindu marriage according to Section 7 of the Act, 1955 and a mere issue of a certificate by an entity in the absence of the requisite ceremonies having been performed, would neither confirm any marital status to the parties nor establish a marriage under the Hindu law. It further appears that in the said case, the Marriage Certificate produced indicated that the marriage between the parties concerned has been solemnized according to Hindu Vedic rites and customs, however, no indication as to the rites and customs that were performed was mentioned therein. In the absence of the requisite ceremonies having been performed, the Apex Court was pleased to declare the marriage in question between the parties concerned as not valid. Thus, validity of both the marriage being one of the essential ingredients of offence under Section 494 of IPC, unless and until performance of the requisite ceremonies is established, no offence under Section 494 of IPC is attracted.

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18. Reference is made to the decision of the Apex Court in the case of Bhaurao Shankar Lokhande , wherein the Apex Court has held as under:

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“3. Section 494 IPC reads:

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‘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

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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.’

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Prima facie, the expression ‘whoever... marries’ must mean ‘whoever marries validly’ or ‘whoever... marries and whose marriage is a valid one’. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, It is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.

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4. Apart from these considerations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the Hindu Marriage Act of 1955, which made a second marriage of a male Hindu, during the lifetime of his previous wife, void. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of Sections 494 and 495 IPC shall apply accordingly. The marriage between two Hindus is void in view of Section 17 if two conditions are satisfied (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be ‘solemnized’, that marriage will not be void by virtue of Section 17 of the Act and Section 494 IPC will not apply to such parties to the marriage as had a spouse living. The

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word ‘solemnize’ means, in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is ‘celebrated or performed with proper ceremonies and due form’ it cannot be said to be ‘solemnized’. It is therefore essential, for the purpose of Section 17 of the Act, that the marriage to which Section 494 IPC applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom.

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5. We are of opinion that unless the marriage which took place between Appellant 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been "solemnized" and therefore Appellant 1 cannot be held to have committed the offence under Section 494 IPC.

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12. We are therefore of opinion that the prosecution has failed to establish that the marriage between Appellant 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by Section 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law.

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13. It follows therefore that the marriage between Appellant 1 and Kamlabai does not come within the expression ‘solemnized marriage’ occurring in Section 17 of the Act and consequently does not come within the mischief of Section 494 IPC even though the first wife of Appellant was living when he married Kamlabai in February 1962.”

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19. Reference is also made to the decision of the

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Apex Court in the case of Smt. Priya Bala Ghosh (Supra) , wherein the Apex Court has held as under:

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“9. Both the contentions of the learned Counsel for the appellant can be dealt with together. It has been pointed out by the learned Sessions Judge that both sides agreed that according to the law prevalent amongst the parties Homo and Saptapadi were essential rites to be performed to constitute à valid marriage Both sides also agreed before the Court that there was no specific evidence as to the performance of Saptapadi and Homo in the case of the alleged marriage of the respondent with Sandhya Rani. Therefore, the main question that has to be considered is whether the performance of the above ceremonies and rites have to be established by evidence specifically before the respondent could be convicted under Section 494 IPC. The findings of the High Court are that the Priest, PW 6, who claims to have officiated at the marriage of the respondent and Sandhya Rani has given evidence to the effect that the marriage was solemnised according to Hindu rites. He has not said anything more than this. The other evidence adduced has not been considered to be of any use in this regard. The further finding of the High Court is that no evidence was adduced that the Homo and Saptapadi were performed in the case of the marriage between Sandhva Rani and the respondent and that it has also not been proved that there was any custom prevalent amongst the parties that those essential ceremonies are not necessary for the purpose of solemnization of the marriage.

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10. According to Mr Majumdar, when once the priest has given evidence to the effect that the marriage between the respondent and Sandhya Rani has been performed, it follows that all the essential ceremonies that are necessary to constitute a valid marriage must be presumed to have been performed. In any event, when there is evidence to show that the marriage as a fact has taken place, the presumption is that it has taken place according to law. In this connection Mr Majumdar referred us to various English decisions where on the basis of certain evidence regarding the taking place of marriage between the parties a

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presumption has been drawn that the marriage must have been solemnized according to law. In our opinion, It is unnecessary to refer to those cases cited by the learned counsel as the position is concluded against the appellant by the decisions of this Court on both points. Section 5 of the Act lays down conditions for a Hindu marriage. It will be seen that one of the conditions is that referred to in clause (1), namely, that neither of the parties has a spouse living at the time of the marriage. Section 7 dealing with the ceremonies for Hindu marriage is as follows:

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‘7. Ceremonies for a Hindu marriage.-(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

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We have pointed out that in the case before us both sides were agreed that according to the law prevalent amongst them Homo and Saptapadi were essential rites to be performed for solemnization of the marriage and there is no specific evidence regarding the performance of these essential rites. The parties have also not proved that they are governed by any custom under which these essential ceremonies need not be performed.

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16. From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties, it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract Section 494 IPC. Again in order to hold that the second marriage has been solemnized so as to attract Section 17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form.

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17. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second

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marriage the essential ceremonies for a valid marriage have been performed. After referring to the passage in Mulla's Hindu Law, 12th Edn. at p. 615 dealing with the essential ceremonies which have to be performed for a valid marriage, this Court on the evidence held that the prosecution had neither established that the essential ceremonies had been performed nor that the performance of the essential ceremonies had been abrogated by the custom governing the community to which the parties belonged. In this view it was held that the prosecution in that case had failed to establish that the alleged second marriage had been performed in accordance with the requirement of Section 7 of the Act. The effect of the decision, in our opinion, is that the prosecution has to prove that the alleged second marriage held been duly performed in accordance with the essential religious rites applicable to the form of the marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties.

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25. To conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the Homo and Saptapadi are the essential rites for a marriage according to the law governing the parties and that there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. No reliance can be placed on the admissions stated to be contained in Ex. 2. For all the above reasons the contentions of Mr Majumdar have to be rejected.”

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20. Reference is also made to the decision of the Apex Court in the case of Gopal Lal (Supra) , wherein the Apex Court has held as under:

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“5. What Section 17 contemplates is that the second marriage must be according to the ceremonies required by law. If the marriage is void its voidness would only lead to civil consequences

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arising from such marriage. Section 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of Section 494 of the Penal Code which has been extracted above. Section 17 clearly provides that provisions of Sections 494 and 495 of the Penal Code shall apply accordingly. In other words though the marriage may be void under Section 17, by reason of the fact that it was contracted while the first marriage was subsisting, the case squarely falls within the four corners of Section 494 and by contracting the second marriage the accused incurs the penalty imposed by the said statute. Thus the combined effect of Section 17 of Hindu Marriage Act and Section 494 is that when a person contracts a second marriage after the coming into force of the said Act, while the first marriage is subsisting he commits the offence of bigamy. (Emphasis ours.) This matter is no longer res integra as it is concluded by a decision of this Court in Bhaurao Shankar Lokhande v. State of Maharashtra. This Court while considering the question of bigamy qua the provisions of Section 17 observed as follows:

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Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of Sections 494 and 495, IPC shall apply accordingly. The marriage between two Hindus is void in view of Section 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February, 1962 cannot be said to be 'solemnized', that marriage will not be void by virtue of Section 17 of the Act and Section 494, IPC will not apply to such parties to the marriage as had a spouse living.

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The word 'solemnized' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the Shorter Oxford Dictionary. It follows, therefore, that

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unless the marriage is 'celebrated or performed with proper ceremonies and in due form' it cannot be said to be 'solemnized. It is therefore essential, for the purpose of Section 17 of the Act that the marriage to which Section 494, IPC applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form.

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It was thus pointed out by this Court that Section 17 of the Hindu Marriage Act requires that the marriage must be properly solemnized in the sense that the necessary ceremonies required by law or by custom must be duly performed. Once these ceremonies are proved to have been performed the marriage becomes properly solemnized and if contracted while the first marriage is still subsisting the provisions of Section 494 will apply automatically. In a decision of this Court in Kanwal Ram v. Himachal Pradesh Administration, the earlier case was noticed by the Court and relied upon. The matter has also been fully discussed in Priya Bala Ghosh v. Suresh Chandra Ghosh. In view of the authorities of this Court, therefore, the following position emerges where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under, Section 17 of the Hindu Marriage Act is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of the Hindu Marriage Act. In these circumstances, therefore, we are unable to accept the contention of Mr. Mulla that the second marriage being void, Section 494 will have no application. It was next contended by Mr. Mulla that there is no legal evidence to show that the second marriage which is said to be a nata marriage was actually performed. We are afraid we are unable to go into this question because three courts have concurrently found as a fact that

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the parties were governed by custom of nata marriage and the two essential ceremonies of this marriage are:

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(1) That the husband should take a pitcher full of water from the head of the prospective wife;

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(2) that the wife should wear chura by the husband.”

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21. Reading of the aforesaid decisions, it is absolutely clear that there has to be specific evidence as to the performance of the requisite ceremonies for constituting a valid marriage. In fact, in the case of Smti. Priya Bala Ghosh (Supra) the Apex Court has held that the evidence of the Priest who claims to have officiated the marriage in question to the effect that he has solemnized the marriage according to Hindu rites and customs without saying anything more is not sufficient to hold the said marriage valid under the law.

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22. What transpires from the above is that, unless it is proved that the second marriage of the accused with another person during the subsistence of the first marriage with his wife is performed according to the requisite essential ceremonies, no valid marriage can be said to be solemnized under Section 7 of the Act, 1955. Therefore, mere deposition of a Priest to the effect that the marriage has been performed as per Hindu rites and customs and the Marriage Certificate issued thereof, is not sufficient enough for holding a marriage valid under Section 7 of the Act, 1955. Thus, if the second marriage is not a valid marriage, no offence under Section 494 of IPC is attracted.

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23. Turning back to the facts of the instant case, it appears that the prosecution has examined 9(nine) prosecution witnesses before the trial Court. PW-6 who is a Priest, deposed that on 06.02.2000, the accused married one Arati Nath at Paglatek temple by identifying himself as Bhubeneswar Nath. He further deposed that the marriage was performed as per Vedic rites. He further exhibited one Marriage Certificate as Exhibit-2. During cross-examination, he stated that the marriage was performed in his temple as per Yajurveda.

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24. PW-1 who is the complainant deposed that she was married to the accused on 28.01.1993 which has been also admitted by the accused while deposing as DW-1. PW1 has further deposed that on 06.02.2000, the accused married for the second time with Smti. Arati Nath at Paglatek temple.

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25. PW-2 deposed that the accused and Smti. Arati Nath are living together and they have one son.

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26. PW-3 and PW-7 have also deposed that the petitioner/accused has remarried another girl without divorcing his first wife (PW-1).

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27. It appears that the defence has examined 3(three) witnesses including Smti. Arati Nath as DW-3 who deposed that she gave birth to one male child at Goalpara Civil Hospital and the petitioner/accused is the father of her child.

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28. It appears that the trial Court after examining the evidence opined that in view of the categorical statement of the Priest that the marriage was performed as per Vedic rites, it will be presumed that the essential rites were performed. Accordingly, the trial Court convicted the petitioner/accused. It appears that the appellate Court has upheld the judgment & order of the trial Court by dismissing the appeal. Relevant paragraph of the appellate Court judgment & order is reproduced hereunder for ready reference:

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“8. After going through the evidence of the contending parties, the admitted position is that in the Goalpara Civil Hospital one child was born on 22-01-2001 and father's name was recorded as Bhupen Nath. Ext.No.2 (marriage certificate) shows that one Arati Nath was married with one Bhubeneswar Nath on 06-02-2000 as per Hindu Customary Law. The Priest of the Temple PW-6 Anil Chakraborty has categorically stated that it was accused Bhupen Nath who impersonating as Bhubeneswar Nath had married Arati Nath as per Hindu Customary Law on 06-02-2000. Pw-7 Padmavati Devi has also categorically stated that accused Bhupen Nath had re-married Arati Nath and they lived in a house in front of her house and one male child was born out of this wed lock and his name is Bhargav Nath. In order to constitute the offence of bigamy u/s 494 IPC, there must be a first valid subsisting marriage at the time of second marriage. Here in this case the first marriage of the accused person with the complainant is admitted by the accused person. The learned counsel of the accused person at the time of argument in the lower Court contended that the alleged second marriage was not performed as per Provisions of Hindu Custom because there was no 'Saptapadi'. :

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The Hon'ble Supreme Court held in a case of Golpal Lal V/s State of Rajasthan reported in AIR 1979

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SC 713: 1979 SCC (Cr) 401 (1979) 2SCC 170: 1979 CrLJ 652:1979 CrLR (SC) 255 1979) @ SCR 1171 that ‘Even if the second marriage is void, S.494,I.P.Code will have the application. The offence, if proved, falls within the ambit of S.494, I.P.Code. Where a spouse contracts a second marriage while the first marriage is still subsisting, the spouse would be guilty of bigamy under S.494, I.P.Code if it is proved that the second marriage was a valid one, in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under S.17 of the Hindu Marriage Act is in fact one of the essential ingredients of S.494, because the second marriage will become void only because of the Provisions of S.17 of the Hindu Marriage Act.

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The combined effect of S. 17 of Hindu Marriage Act and S.494 of the I.P Code is that when a person contracts a second marriage after the coming into force of the said Act, while the first marriage is subsisting, he commits the offence of bigamy."

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9. Here in this case the factum of second marriage is not only proved by the Priest of Paglatek Temple PW-6, but also by PW-7 Padmavati Devi, who had seen the accused person living with his second wife in front of her house. The PW-6 has categorically stated that marriage was performed as per Vedic Rites.

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10. Following my discussions in the foregoing paras, it is quiet logical to hold that the prosecution has established the case against the accused person u/s 494 IPC beyond all reasonable doubt. The offence u/s 494 IPC is punishable up to 07(seven) years and the learned S.D.J.M(S) convicted the accused person with one year imprisonment and fine of Rs.3000/- i/d to undergo simple imprisonment for 06(six) months. Taking into account the facts and circumstances of the case, I do not find any reason to interfere with the sentence given by the learned S.D.J.M(S). Accordingly, the appeal is dismissed. The judgment

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of the lower Court is upheld without any modification of sentence.”

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29. Reading of the aforesaid judgment & order of the appellate Court, it appears that the appellate Court by referring to the judgment of Gopal Lal (Supra) held that the second marriage in question was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed.

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30. Undoubtedly, the revisional jurisdiction is not ordinarily invoked or used merely because the trial/appellate Court has taken a wrong view of the law or misappropriated the evidence on record. It is only when the trial/appellate Court has not kept in view the correct position of law and has failed to appreciate the evidence in its true perspective, it would be within the jurisdiction of the revisional Court to apprise the evidence and come to a conclusion as to whether the conclusion of the trial/appellate Court was justified or not. In other words, when the conclusion of the trial/appellate Court is grossly and palpably unjust or is based upon a manifestly erroneous approach and erroneous appraisal of the evidence and further has misconceived the evidence and has come to an obviously wrong conclusion, the revisional Court would be fully justified to go into the facts and correct the errors that has cropped into the judgment of the trial/appellate Court.

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31. In the instant case the first marriage of the petitioner/accused with respondent No.2 is admittedly

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valid. As regards the second marriage, it is evident from the evidence that except the deposition of PW-6 (Priest) to the effect that the marriage of the accused with Smti. Arati Nath was performed as per Vedic rites, there is no evidence whatsoever, available on record to indicate that the requisite essential ceremonies for constituting a valid marriage was performed. Further, the Marriage Certificate issued by the PW-6 also does not indicate as to what Vedic rites and customs were performed in the marriage in question. Pertinent that though during the crossexamination, PW-6 clarified that the marriage was performed as per Yajurveda, however, nothing more was indicated. It is thus apparent that there is no evidence of the Priest indicating the performance and celebration of such rituals and customs. Therefore, in the absence of such evidence of the requisite essential ceremonies, the findings of both the trial Court as well as the appellate Court holding the second marriage valid only on the basis of the evidence of the Priest and the Marriage Certificate is palpably and manifestly erroneous in law.

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32. In fact, the 4(four) witnesses i.e., Himkesh Das, Jeevan Das, Banamali Nath and Ratnakar Das who appears to have been witness to the second marriage in question as per the Marriage Certificate exhibited by the PW-6 as Exhibit-2 were not produced or examined as prosecution witness at any stage. The aforesaid 4(four) witnesses, if brought on record could have certainly brought to light as whether the essential ceremonies as required under the

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Hindu Law were performed or not. In the event of nonproduction of the aforesaid witnesses, who appears to be most vital witnesses, an adverse inference can be also drawn against the prosecution.

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33. Be that as it may, I am of the unhesitant view that the conclusion of the appellate Court as well as the trial Court is grossly and palpably unjust and is based upon a manifestly erroneous approach and are totally perverse without being based on any evidence of the second marriage being performed by following the requisite essential ceremonies. Therefore, there has been a clear case of miscarriage of justice. Hence, the judgment & order dated 11.01.2011 passed by the learned Sessions Judge, Goalpara in Criminal Appeal No.3/2007 and the judgment & order dated 18.12.2006 passed by learned S.D.J.M. (S), Goalpara in G.R. Case No. 1047/2004 are hereby set aside quashed.

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34. Resultantly, the criminal revision petition stands allowed.

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35. As such, the petitioner stands acquitted. The bail bonds furnished by the petitioner accordingly, stand discharged.

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36. The criminal revision petition is accordingly, disposed of.

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37. Interim order passed earlier is hereby made

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absolute.