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Rohidas Mahato @ Ruhidas vs The State Of Jharkhand on 13 December, 2019

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 1040 of 2014

1. Rohidas Mahato @ Ruhidas

2. Bokeshwar Mahato @ Bakeshwar Mahato

3. Arti Mahato @ Arti Mahatain

4. Jyotilal Mahato … … Petitioners
Versus
The State of Jharkhand … … Opp. Party

CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN

For the Petitioners : Mr. P. A. S. Pati, Advocate
For the Opp. Party : Ms. Nehala Sharmin, A.P.P.

C.A.V. on 19.11.2019 Pronounced on 13.12.2019

The instant application is directed against the judgement dated
31.07.2014 passed by the learned 1st Additional Sessions Judge,
Seraikella-Kharsawan in Criminal Appeal No. 21 of 2010, whereby the
appeal preferred by the petitioners have been partly allowed and the
judgment of conviction and order of sentence dated 19.04.2010 passed
by the learned Sub-Divisional Judicial Magistrate, Seraikella in G.R.
Case No. 414 of 2004, whereby the petitioners have been convicted for
the offence under Section 498A of the Indian Penal Code and Sections
3/ Section4 of the Dowry Prohibition Act, has been modified.

The learned appellate court in its judgment sustained the
conviction of the petitioners so far as the offence under Section 498A
IPC is concerned, however, acquitted the petitioners from the charge
under Sections 3/ Section4 of the Dowry Prohibition Act.

The learned counsel for the petitioners vehemently argued that
they are innocent and have falsely been implicated in this case. He
further submits that there is no valid marriage between the
complainant and the petitioner no. 1, Rohidas Mahato @ Ruhidas. He
further submits that the learned trial court has committed a gross error
in holding the marriage on the basis of simple affidavit which cannot
be considered as a right of the parties to live as husband and wife. He
further submits that to constitute an offence under Section 498A of the
Indian Penal Code the most important ingredient is that the accused
persons must be either husband or his family members. He further
draws attention of this Court towards the major contradictions
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among the deposition of the prosecution witnesses. Relying upon the
depositions of prosecution witnesses, he submits that the learned trial
court has committed an error in holding that there was valid marriage
and on the principle of maintenance, he convicted the petitioners. The
learned appellate court also did not take into consideration the specific
defence of the petitioners that no marriage has ever been solemnized
between the petitioner no. 1 and the complainant and as such, no case
is made out under Section 498A of the Indian Penal Code.

Per contra, learned A.P.P. has opposed the prayer made by the
petitioners.

Heard learned counsel for the petitioners and the learned A.P.P.
for the State.

The peculiar facts of the case insisted this Court to look into the
evidences which clearly transpires that none of the prosecution
witnesses have said that there was a valid marriage. P.W. – 1, P.W. – 2
has admitted that the marriage was not solemnized according to the
social customs and rites. Even P. W. – 3 has stated that there was no
valid marriage. P. W. – 5 has also supported the contention of the
accused persons by submitting in Paragraph – 5 of his deposition that
marriage of petitioner no. 1 and the complainant was not solemnized
according to their customs and rites. Even the father of the
complainant who is P.W. – 6 also admits that the marriage was not
performed in the house rather, it was done through affidavit. This
witness has also admitted the fact that there was no demand of any
amount. Even the complainant who is P.W. – 7 has admitted before the
court in her cross-examination that no family members of her husband
was present. She also admits that the marriage has been solemnized
through an affidavit.

In criminal jurisprudence the prosecution has to prove its case
beyond all shadow of reasonable doubt and no person can be
convicted on mere surmises and conjuncture. In the instant case, there
is an admitted position that none of the witnesses has deposed that
there was a social marriage between the complainant and the
petitioner no. 1. The only fact which has been proved by the
prosecution is that an affidavit has been sworn by the husband to the
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effect that the complainant is his wife. It is settled law that to constitute
a marriage in the eye of law it has first to be established that the same
was valid marriage. The bare fact that a man and woman live as
husband and wife does not at any rate give them the status of husband
and wife even though they may hold themselves before the society as
husband and wife. In the case of SectionReema Aggarwal v. Anupam And
Others reported in (2004) 3 SCC 199, the Hon’ble Apex Court has dealt
this issue in Paragraphs – 8 and 9 which are quoted hereinbelow:

“8. In response, learned counsel for the respondents submitted that
to constitute a marriage in the eye of the law, it has first to be
established that the same was a valid marriage. Strong reliance was
placed on SectionBhaurao Shankar Lokhande v. State of Maharashtra in that
context. Reference was also made to Sections 5(i), Section11 and Section16 of the
Hindu Marriage Act, 1955 (for short “the SectionMarriage Act”) to contend
that the stipulations of conditions of a valid marriage, the
circumstances in which the marriage becomes void and the protection
given to children of void and voidable marriages respectively makes
the position clear that wherever the legislature wanted to provide for
contingencies flowing from void or voidable marriages, it has
specifically done so. It is latently evident from Section 16 of the
Marriage Act. There is no such indication in Section 498-A IPC. The
language used is “husband or relative of the husband”. Marriage is a
legal union of a man and a woman as husband and wife and cannot
extend to a woman whose marriage is void and not a valid marriage in
the eye of the law.

9. The marriages contracted between Hindus are now statutorily
made monogamous. A sanctity has been attributed to the first
marriage as being that which was contracted from a sense of duty and
not merely for personal gratification. When the fact of celebration of
marriage is established, it will be presumed in the absence of evidence
to the contrary that all the rites and ceremonies to constitute a valid
marriage have been gone through. As was said as long back as in 1869
“when once you get to this viz. that there was a marriage in fact, there
would be a presumption in favour of there being a marriage in law”.
(See Inderun Valungypooly Taver v. Ramaswamy Pandia Talaver,
Moo IA p. 158.) So also where a man and woman have been proved to
have lived together as husband and wife, the law will presume, until
contrary be clearly proved, that they were living together in
consequence of a valid marriage and not in a state of concubinage.
(See Sastry Velaider v. Sembecutty following De Thoren v. Attorney
General and Piers v. Piers.) Where a marriage is accepted as valid by
relations, friends and others for a long time, it cannot be declared as
invalid. In Lokhande case it was observed by this Court: (AIR p.
1565, para 3)
The bare fact that a man and woman live as husband and wife
does not at any rate normally give them the status of husband and
wife even though they may hold themselves before the society as
husband and wife and the society treats them as husband and wife.
These observations were cited with approval in SectionSurjit Kaur v.
Garja Singh. At first blush, it would seem that these observations
run counter to the long catena of decisions noted above. But on
closer examination of the facts of those cases it is clear that this
Court did not differ from the views expressed in the earlier cases.
In Lokhande case this Court was dealing with a case of prosecution
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for bigamy. The prosecution had contended that second marriage
was gandharva form of marriage and no ceremonies were
necessary and, therefore, did not allege or prove that any customary
ceremonies were performed. In that background, it was held that
even in the case of gandharva marriages, ceremonies were required
to be performed. To constitute bigamy under Section 494 IPC, the
second marriage had to be a valid marriage duly solemnized and as
it was not so solemnized it was not a marriage at all in the eye of
the law and was therefore invalid. The essential ingredient
constituting the offence of bigamy is the “marrying” again during
the lifetime of husband or wife in contrast to the ingredients of
Section 498-A which, among other things, envisage subjecting the
woman concerned to cruelty. The thrust is mainly on “marrying” in
Section 494 IPC as against subjecting of the woman to cruelty in
Section 498-A. Likewise, the thrust of the offence under Section
304-B is also on “dowry death”. Consequently, the evils sought to
be curbed are distinct and separate from the persons committing the
offending acts and there could be no impediment in law to liberally
construe the words or expressions relating to the persons
committing the offence so as to rope in not only those validly
married but also anyone who has undergone some or other form of
marriage and thereby assumed for himself the position of husband
to live, cohabit and exercise authority as such husband over another
woman. As the prosecution had set up a plea of gandharva
marriage and had failed to prove the performance of ceremonies, it
was not open to fall back upon the presumption of a valid marriage.
It was further held that there was no such presumption if the man
was already married. In Surjit Singh case the stand was that the
marriage was in karewa form. This Court held that under the
custom of karewa marriage, the widow could marry the brother or a
relation of the husband. But in that case the man was a stranger.
Further, even under that form of marriage certain ceremonies were
required to be performed which were not proved. Dealing with the
contention relating to presumption, reference was made to
Lokhande case. As the parties had set up a particular form of
marriage which turned out to be invalid due to absence of proof of
having undergone the necessary ceremonies related to such form of
marriage, the presumption of long cohabitation could not be
invoked.”

From the above judgment of the Hon’ble Apex Court of India, it
clearly transpires that there has to be a valid marriage. Simply living
with a lady cannot give a presumption that there is a valid marriage. In
the instant case, the entire prosecution witnesses except the
complainant have deposed that marriage has not solemnized as per
social customs and rites so much so that the father of the complainant
himself admitted that the marriage was not performed in their house.
The statement of the complainant is contradictory even with that of her
brother and her father to the extent that her brother, P.W. – 8, stated in
his evidence that the marriage of his sister was performed with
Rohidas Mahato @ Ruhidas before the Notary Public by way of an
affidavit whereas the complainant deposed that her marriage was
-5-
performed in the society according to social rites and customs. As a
matter of fact, the entire prosecution witnesses except the complainant
have categorically deposed that marriage was not performed as per the
social rites and customs.

In my considered opinion, the affidavit sworn by the petitioner
no. 1 could not be considered as a valid document for a valid marriage.
It is not a case of prosecution that the petitioner has convinced the
complainant that the affidavit itself constitutes a valid marriage.

In this view of the matter, I am of the considered opinion that
since the affidavit cannot be considered as a valid document for a valid
marriage and the marriage has not been performed as per the Hindu
rites and customs, the petitioners cannot be convicted for the offence
under Section 498A of the Indian Penal Code. This aspect of the matter
has not been considered by the learned trial court as well as by the
learned appellate court making both the orders cryptic.

As a result, the instant revision application is allowed. The
judgement dated 31.07.2014 passed by the learned 1st Additional
Sessions Judge, Seraikella-Kharsawan in Criminal Appeal No. 21 of
2010 and the judgment of conviction and order of sentence dated
19.04.2010 passed by the learned Sub-Divisional Judicial Magistrate,
Seraikella in G.R. Case No. 414 of 2004 are, hereby, set aside.

The petitioners shall be discharged from the liability of their bail
bonds.

Let the lower court record be send back to the court concerned
forthwith.

(Deepak Roshan, J.)

Umesh/-

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