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Smt. Neelam Jaiswal vs Shashank Jaiswal 27 … on 28 January, 2020

1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 995 of 2016

Order Reserved on : 24.01.2020

Order Delivered on: 28.01.2020

• Smt. Neelam Jaiswal W/o Shashank Jaiswal Aged
About 34 Years R/o Quarter No. 7­ A, Road­ 11,
Sector­ 5, Bhilai, Police Station­ Kotwali,
Bhilai, Tahsil And District­ Durg, Chhattisgarh.

­­­­ Petitioner/ Complainant

Versus

1. Shashank Jaiswal S/o Radheshyam Aged About 38
Years At Present Resident Of Banjari Mata Mandir,
D.S. Tower, A­5­302, Vyas Talab, Near R.T.O.
Office In Front Of Radio Station, Raipur Manpuri,
District­ Raipur, Chhattisgarh.
2. Smt. Neelam Jaiswal W/o Radheshyam Jaiswal Aged
About 58 Years
3. Radheshaym Jaiswal S/o Murlidhar Jaiswal Aged
About 60 Years
4. Ankur Jaiswal S/o Radheshyam Jaiswal Aged About
30 Years
5. Manjusha Jaiswal W/o Manoj Jaiswal Aged About 32
Years
All are R/o Shop No. 5, Maitri Apartment, Risali,
Bhilai, Tahsil And District­ Durg, Chhattisgarh
­­­­ Respondents/ Accused

Petitioner : Mrs. Neelam Jaiswal in
person
For Respondent No. 1 : Mr. Sunil Sahu,Advocate
For Respondents No. 2 to 5 : Mr. Manish Upadhyay,
Advocate
2

Hon’ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

1. The present petition under Section 482 of the

Code of Criminal Procedure (henceforth ‘Cr.P.C.) is

directed against the impugned order dated 12.01.2015

by which learned Sessions Judge, Durg (C.G.) has

rejected the revision affirming the order passed by

learned trial Magistrate dismissing the criminal

complaint filed for offence punishable under Sections

494, 497 and 120(B) of the Indian Penal Code

(henceforth ‘IPC’).

2. The petitioner in person/complainant would submit

that she is the legally wedded wife of respondent No.

1 and respondent No. 1 has married some other woman in

2011 and is also blessed with two children, as such,

she is guilty of bigamy which learned trial Magistrate

and revisional Court did not notice despite her

statement and the statement of one Monika Mehra. She

submits that the impugned order and the order of trial

Magistrate deserves to be set­aside and matter be

referred to trial Magistrate for taking cognizance of

offence punishable under Sections 494, 497 and 120(B)

of the IPC.

3

3. Learned counsel for the respondents would oppose

her submission and submit that the fact of second

marriage has not been established and there is no

evidence on record to show that respondent no. 1 has

ever performed second marriage with some other woman.

As such, the fact of second marriage has to be duly

and strictly proved which has not been proved in the

instant case. He would also submit that the provision

contained in Section 497 of the IPC has already been

struck down by the Constitution Bench of the Supreme

Court in the matter of Bharat Singh and others v. Mst.

Bhagirathi1, therefore, the petition deserves to be

dismissed.

4. I have heard the petitioner in person and learned

counsel for the respondents, considered the rival

contentions and went through the record with utmost

circumspection.

5. In order to have comprehension of the challenge

made to the judgment of conviction and sentence, it

would be profitable to notice Section 494 of the IPC,

which runs thus:

“494. Marrying again during lifetime of
husband or wife.–Whoever, having a husband

1 AIR 1966 SC 405
4

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 — 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.”

6. A bare and close perusal of Section 494 of the

IPC would reveal the following essential ingredients

of the offence under Section 494 of the IPC :

(i) The accused spouse must have contracted
the first marriage,

(ii) While the first marriage was subsisting,
the spouse concerned must have contracted a
second marriage, and

(iii) Both the marriage must be valid in the
sense that the necessary ceremonies required
by the personal law governing the parties had
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duly been performed.

7. At this stage, it would be pertinent to mention

that the offence under Section 494 of the IPC would be

attracted only if the second marriage becomes void by

reason that it had taken place during the subsistence

of the first marriage and in the lifetime of one of

the spouse.

8. At this stage, it is profitable to notice Section

17 of the Hindu Marriage Act, 1955 (henceforth ‘the

Act, 1955’), which reads thus:

“17. Punishment of biagamy.­Any marriage
between two Hindus solemnized after the
commencement of this Act is void if at the
date of such marriage either party had a
husband or wife living; and the provisions
of Sections 494 and 495 of the Indian Penal
Code (45 of 1860), shall apply accordingly.”

9. Section 17 of the Act, 1955, clearly provides

that the second marriage must be according to

ceremonies required by law and if the marriage is

void, its voidness will only lead to the consequence

from such marriage. The combined effect of Section 17

of the Act, 1955 and Section 494 of the IPC has been

considered by their Lordships of the Supreme Court in

Bhaurao Shankar Lokhande and another v. The State of
6

Maharashtra and another2, and has been held as under:

“4……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 Ss. 494 and 495,
I.P.C. shall apply accordingly. The
marriage between two Hindus is void in view
of S. 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 S. 17 of the Act and S.
494, I.P.C. will not apply to such parties
to the marriage as had a spouse living.

5. The 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 S. 17 of the Act, that the marriage to
which s. 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.”

10. Thereafter, in Kanwal Ram and others v. The

Himachal Pradesh Administration3, their Lordships of

2 AIR 1965 SC 1564
3 AIR 1966 SC 614
7

the Supreme Court clearly held that the essential

ceremonies of the second marriage must be constituted

and proved and admission of the marriage by the

accused is not an evidence of it for the purpose of

proving the marriage, and held as under:

“7. The learned Judicial Commissioner,
however, thought that apart from the evidence
about the marriage ceremonies earlier
mentioned there was other evidence which
would prove the second marriage. He first
referred to a statement by the appellant
Kanwal Rain that he had sexual relationship
with Kubja. We are entirely unable to agree
that this, even if true, would at all prove
his marriage with Kubja. Then the learned
Judicial Commissioner relied on a statement
filed by Kubja, Hira Nand and Hiroo in answer
to an application for restitution of conjugal
rights filed by Sadh Ram against Kubja and
others, in which it was stated that Kubja
married Kanwal Ram after her marriage with
Sadh Ram had been dissolved. Now the
statement admitting the second marriage by
these persons is certainly not evidence of
‘the marriage so far as Kanwal Ram and Seesia
are concerned; they did not make it. Nor do
we think, it is evidence of the marriage even
against Kubja. First, treated as an
admission, the entire document has to be read
as a whole and that would prove the
dissolution of the first marriage of Kubja
which would make the second marriage
innocent. Secondly, it is clear that in law
such admission is not evidence of the fact of
the second marriage having, taken place. In a
bigamy case, the second marriage as a fact,
that is to say, the ceremonies constituting
it, must be proved : Empress v. Pitambur
Singh, ILR 5 Cal 566 (FB), Empress of India
v. Kallu, ILR 5 All 233, Archbold, Criminal
Pleading Evidence and Practice (35th Ed.)
8

Art. 3796. In Kallu’s case, ILR 5 All 233 and
in Morris v. Miller, (1767) 4 Burr 2057: 98
ER 73, it has been held that admission of
marriage by the accused is not evidence of it
for the purpose of proving marriage in an
adultry or bigamy case: see also Archbold
Criminal Pleading Evidence and Practice (35th
ed.) Art. 3781. We are unable, therefore, to
think that the written statement of Kubja
affords any assistance towards proving her
marriage with Kanwal Ram.”

11. In Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh 4,

their Lordships of the Supreme Court clearly held that

it is essential that the second marriage should have

been celebrated with proper ceremonies and in due form

and the prosecution has to prove that the alleged

second marriage has been duly performed in accordance

with religious rites available to the form of marriage

gone through by the parties and the admission of the

accused cannot be in law treated as an evidence of the

second marriage having been taken place. It has been

held as under:

“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 of the I.P.C. 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

4 1971 (1) SCC 864
9

marriage should have been celebrated with
proper ceremonies and­in due form.

17. In the said decision this Court further
considered the question whether it has been
established that with respect to the alleged
second marriage the essential ceremonies for
valid marriage have been performed. After
referring to the passage in Mulla’s Hindu
Law, 12th Edn. at page 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 cermon is 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 had
been duly performed in accordance with the
essential religious rites applicable to the
form of marriage gone through by the parties
and that the said marriage must be a valid
one according to law applicable to the
parties.

23. Further as pointed out by this Court in
Kanwal Ram’s case (supra), the admission in
Ex. 2 cannot in law be treated as evidence of
the second marriage having taken place in an
adultery or bigamy case, and that in such
cases it must be proved by the prosecution
that the second marriage as a fact has taken
place after the performance of the essential
ceremonies.”

12. Thereafter, their Lordships of the Supreme Court,

following the decision of Bhaurao Shankar case

(supra), Kanwal Ram case (supra) and Smt. Priya Bala
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case (supra), in Gopal Lal v. State of Rajasthan5,

clearly held that where a spouse contracts a second

marriage while the first marriage subsists, the spouse

will be held guilty of bigamy under Section 494 IPC if

it is proved in the sense that the necessary ceremony,

required by law or custom, has been actually

performed. In Laxmi Devi (Smt) v. Satya Narayan and

others6 also, their Lordships of the Supreme Court

held that in the absence of proof of such a ceremony,

the factum of second marriage cannot be held to have

been made out.

13. Thus, it has clearly been held that in order to

prove the offence of bigamy under Section 494 of the

IPC, the prosecution is required to prove the fact of

second marriage strictly and unless the prosecution is

able to prove the fact of second marriage, as required

under the law, the accused, in view of the

authoritative pronouncements laid down by their

Lordships of the Supreme Court in above­noted cases,

cannot be held guilty for the offence under Section

494 of the IPC.

14. Reverting to the facts of this case, it is quite

5 (1979) 2 SCC 170
6 (1994) 5 SCC 545
11

vivid that so far as the second marriage is concerned,

the petitioner/complainant in her complaint only

stated that her marriage was performed with respondent

No. 1 namely Shashank Jaiswal and further stated that

no divorce has taken place between them and she is the

legally wedded wife of respondent no. 1, but further

did not state the date of second marriage, the name of

the woman with whom the respondent no. 1 is alleged to

have performed second marriage and even the name of

children which the respondent no. 1 is having with the

second wife. Likewise, in the statement before the

Court she has stated that she was informed about the

second marriage by one Monika Mehra and Monika Mehra

has also been examined and she stated that she was

informed about it by Ankur Jaiswal that the Respondent

No. 1 has performed second marriage but Ankur Jaiswal

has not been examined. As such, the petitioner in

person/complainant was required to show that the

second marriage which is alleged to be solemnized by

respondent no. 1 was actually performed. The

petitioner in person/complainant was further required

to bring legal evidence on record. The essential

ceremonies of second marriage allegedly performed by

respondent No. 1 have not been proved by the
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petitioner herein and she has failed to bring on

record anything to prove the same, as such, there is

no legal evidence on record that respondent No. 1 has

ever performed second marriage with another woman in

accordance with applicable law. As the second marriage

and the essential ceremonies constituting second

marriage have to be strictly proved which the

petitioner in person/complainant has failed to prove,

it can be inferred that respondent No. 1 has ever

performed second marriage during the subsistence of

their marriage so as to attract the penal provision

under Section 494 of the IPC. Likewise, provision for

adultery contained in Section 497 of the IPC has

already been struck down by the Supreme Court in the

matter of Joseph Shine v. Union of India7 in which

their Lordships held that the provision is

unconstitutional and observed as under:

“1) Section 497 lacks an adequately
determining principle to criminalize
consensual sexual activity and is manifestly
arbitrary. Section 497 is a denial of
substantive equality as it perpetuates the
subordinate status ascribed to women in
marriage and society. Section 497 violates
Article 14 of the Constitution;

2) Section 497 is based on gender stereotypes
about the role of women and violates the non­
discrimination principle embodied in Article
7 (2019) 3 SCC 39
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15 of the Constitution;

3) Section 497 is a denial of the
constitutional guarantees of dignity,

liberty, privacy and sexual autonomy which
are intrinsic to Article 21 of the
Constitution; and

4) Section 497 is unconstitutional.

5)The decisions in Sowmithri Vishnu8 and
Revathi9 are overruled.

15. In view of the aforesaid discussion, I do not

find any merit in this petition filed under Section

482 of the Cr.P.C., therefore, it deserves to be and

is accordingly dismissed.

Sd/­

(Sanjay K. Agrawal)
Judge

Vishakha

8 Sowmitri Vishnu v. Union of India, 1985 Supp SCC 137 : 1985 SCC (Cri) 325
9 V. Revathi v. Union of India, (1988) 2 SCC (Cri) 308

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