R.S. Bindra, J.C.
1. Shorn of verbiage, the facts relevant to the present revision petition filed by the convict Shri Rabindra Bhattacharjee are that he was married to the complainant Prativa Bhattacharjee, M. A., B.T., in July 1954 at Hoogly, that they could not pull on smoothly as husband and wife despite the fact that they were blessed with a son, Rantu by name, on 23-8-1955 which was soon after the marriage, and that, as alleged by the complainant, her husband entered into second marriage with Anjali Bhattacharjee, a daughter of Gopal Chakraborty of Agartala. On 6-11-1961, Prativa filed a complaint in the Court of Sub-divisional Magistrate at Agartala. Rabindra, the husband of the complainant, was charged in course of time by that Magistrate under Section 494 I. P. C. while Anjali and her father Gopal Chakraborty were both charged under Section 494 read with Section 109 I. P. C. By its judgment dated 20th of May, 1963, the trial Court acquitted Anjali and her father but convicted Rabindra under Section 494 I. P. C. and sentenced him to 11/2 years' simple imprisonment and a fine of Rs. 500/-, or, in default, 6 months' additional simple imprisonment. Having felt aggrieved Rabindra went in appeal to the Sessions Court. The learned Sessions Judge upheld the conviction of the accused by his judgment dated 18-3-1964, but reduced the sentence to 6 months' simple imprisonment, and a fine of Rs. 500/-, or, in default, 6 months' further simple imprisonment. In the instant revision petition. Rabindra challenges the correctness of his conviction and sentence.
2. Though in the trial court and before the Sessions Judge the accused Rabindra had vehemently asserted that he laboured under bona fide mistake that his first wife Prativa was not living when he married Anjali on 28-10-1959, but in this Court Shri M.C. Chakraborty, appearing for him, did not raise that point. Hence, as at present, that is no longer an issue between the parties. Shri M.C. Chakraborty also did not contest the proposition that his client and Prativa were validly married in July, 1954, and that Prativa bore a male child to Rabindra in August 1955. The only point urged by Shri Chakraborty was that the complainant Prativa had miserably failed in her attempt to establish that Rabindra had been validly married to Anjali on 28-10-1959. In this connection, he invited the Court's attention to Section 7 of the Hindu Marriage Act, 1955, and also placed reliance on Section 50 of the Indian Evidence Act, besides relying heavily on the evidence led in the case and the propositions of law enunciated in the authorities : 1965CriLJ544 , Bhaurao Shankar v. State of Maharashtra : 1966CriLJ472 , Kanwal Ram v. Himachal Pradesh Administration and AIR 1965 J&K; 105, Phankari v. State. Shri N.L. Choudhury, representing the complainant, submitted, on the other hand, that the factum and validity of marriage between Anjali and Rabindra were never raised in either of the two courts below and so it is not open to the convict to raise a new issue in revision petition. Shri Choudhury vigorously contended that apart from that legal objection raised by him there is abundant evidence on the record to establish the factum as also the validity of the marriage between Rabindra and Anjali. The rejoinder of Shri Chakraborty was that Rabindra had raised, as a matter of fact, the question of the validity of his marriage with Anjali in the trial court. However, he was unable to take the stand that that point was also emphasised before the Sessions Judge.
3. After going through the judgments of the Sub-divisional Magistrate and the Sessions Judge, as also the statement made by the accused under Section 342 Cr. P. C. I have reached the conclusion that neither factum nor validity of the marriage between Rabindra and Anjali was an issue, active or mute, between the parties in the court of Sessions Judge and that the validity, but not the factum, of that marriage was challenged at the stage of arguments but never before in the trial Court.
4. On page 24 of its judgment the learned trial court happened to observe that the prosecution had proved both the marriages, that the accused had raised no objection respecting those marriages, that he (the accused) had actually admitted those marriages, and that the only defence to the charge,- in fact, was that he had married for the second time believing in good faith that his first wife was not amongst the living. Then, on page 25, it is stated that the defence counsel had raised the issue that the prosecution must prove both the marriages to bring the case within the purview of Section 494 I. P. C. that he had cited a Privy Council authority in support of that proposition, and that that ruling was unavailing to him as there was no dispute regarding 'the facts of the marriage'. On the same page the court stated further, while dealing with the argument of the defence counsel based on the authority reported in AIR 1960 Bom 393, Malan v. State of Bombay, that that ruling also did not advance the defence case 'as no challenge on the point of marriage, by putting any kind of suggestion, was made by the defence'. It was stated further that, in fact, the accused had admitted both the marriages apart from the evidence led by the complainant to establish the factum of those marriages. In the penultimate para on that page, the trial court once again observed that the prosecution had proved both the marriages and that 'no challenge was made on the point of marriage'.
5. I have gone through the judgment of the learned Sessions Judge twice over but I have not been able to find therefrom any support for the contention that the factum or validity of the second marriage was disputed. In that Court, as in the trial Court, the only point canvassed was that the accused believed honestly at the time of his second marriage that his first wife had died. I think the entire attention of the defence was directed in the two Courts below in proving the bona fide belief of the accused that his first wife Prativa had died on 22nd of September, 1959. This conclusion gathers support from the stand taken by the accused while making statement under Section 342 Cr. P. C. One of the questions put to the accused was: 'There is evidence that knowing that your married wife Smti. Praliva Bhattacharjee was alive, you have again married accused Smt. Anjali Debi in October 1959. What is your reply to this?' The reply returned was: 'It is not a fact. At the time I married for the 2nd time there were reasons for my belief and I believed that my first wife Smt. Prativa was not alive then.' The last but one question put to him by the trial court was if he had anything else to state. The accused came out with the following averment:
I have not committed any offence. After the receipt of the telegram though I did not venture-to go to my father-in-law's place still I wrote a letter to her father--Satish Chakraborty--for performing the 'Sradh Ceremony' of Prativa by my son. The first letter was sent under certificate of posting and thereafter I wrote many letters but they did not reply to any.
It would be evident from this averment of the accused that his only defence to the charge on which he stood the trial was that he had learnt from a telegram sent by his father-in-law that his first wife had died. In reply to the other question, as reproduced above, bearing on his marriage with Anjali, the accused had unequivocally admitted the factum of his marriage with Anjali and had not even cared to assert that that marriage was legally invalid. Hence, Shri N.L. Choudhury was justified in urging that an entirely new case is being put up before this Court. However, despite that stand in the Courts below I do not want to rest the present judgment on the foundation that the accused had challenged neither the factum nor the validity of his marriage with Anjali. It is for the reason that the Supreme Court has held in the case of Kanwal Ram : 1966CriLJ472 (Supra) that in an adultery or bigamy case an admission of marriage by the accused is not evidence of the fact that the marriage had taken place. It was held further that in such cases, the ceremonies constituting the marriage must be proved.
6. Section 7(1) of the Hindu Marriage Act states that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto, while Sub-section (2) of Section 7 enacts that 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. The parties' counsel were at one on the point that their clients being high caste Brahmins the marriages amongst their class include the ceremony of Saptapadi before the sacred fire. Section 17 of the same Act is to the effect 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 of the Indian Penal Code shall apply accordingly. The main contention of Shri Chakraborty, based on these two sections of the Hindu Marriage Act, was that it was obligatory for the complainant to prove by convincing evidence that the ceremony of Saptapadi was gone through between Rabindra and Anjali at the time of their wedding before she (the complainant) could legitimately urge that Rabindra was guilty of the charge under Section 494 I. P. C. On the authority of the proviso to Section 50 of the Indian Evidence Act, it was emphasised by Shri Chakraborty that the opinion evidence, expressed by conduct, is not admissible to prove a marriage in a case under Section 494 I. P. C. For the time being, I deem it enough to point out that this proviso enacts only this much that the opinion evidence of the nature mentioned which is otherwise made relevant by the main body of Section 50 for the purpose of proving existence of relationship, 'shall not be sufficient to prove a marriage' in a prosecution under Section 494 I. P. C. The proviso does not make the opinion evidence relating to the marriage either irrelevant or inadmissi ble, as is evident from the under lined (here into ' ') words, in such prosecutions. Therefore, the only effect of the proviso is that on the basis of the opinion evidence alone, the Court cannot hold in a prosecution under Section 494 I. P. C. that the factum of the marriage has been proved. Hence. I reject the contention of Shri Chakraborty that the opinion of persons who testify to the marriage, the factum of which is in issue, cannot be taken into consideration at all. Such testimony being relevant, as held above, can be availed of along with other evidence to reach the conclusion that the factum of marriage had been proved.
7. On the authority of the Supreme Court decision in the case of Bhaurao Shankar : 1965CriLJ544 (supra) it was urged by Shri Chakraborty that unless it is proved by direct evidence that the ceremony of Saptapadi was gone through between a man and a woman, it cannot be said for the purpose of a case under Section 494 I. P. C. that marriage between them had been solemnized. Shri Chakraborty urged further that no evidence except direct evidence bearing on the point of Saptapadi can be looked into, or relied upon in proof of the marriage. After going through the report with the care it deserves, I have not been able to spell out any support for the propositions canvassed by Shri Chakraborty. The Supreme Court held in Bhaurao's case : 1965CriLJ544 that the two essential ceremonies for solemnizing a marriage between the parties to that case were: (i) invocation before the sacred fire, and (ii) Saptapadi, The Court reached the further conclusion, on the basis of available materials on the record, that these two ceremonies had not been cele-brated. It is on the basis of these two findings of fact that the Court held that no valid marriage had been celebrated between Bhaurao and Kamalbai, his alleged second wife. Likewise, the Supreme Court held in the case of Kan-wal Ram : 1966CriLJ472 (supra) that a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed, and that the evidence of the witnesses called to prove the marriage ceremonies showed that the essential ceremonies had not been performed. It would follow that the two appellants before the Supreme Court were acquitted on the distinct finding, arrived at from the evidence on record, that the essential ceremonies constituting the marriage had not been proved as a matter of fact. It was not held in either of the two cases, I may humbly emphasise, that the ceremony of Saptapadi must, in all events, be proved by direct evidence and by no other means.
8. The last case relied upon by Shri Chakraborty in support of the point urged by him is that of Phankari reported in AIR 1965 J & K 105. Some passages in that authority undoubtedly lend weight to the view canvassed by Shri Chakraborty. For example, it is stated in para 14 that it is incumbent on the prosecution to prove at least those ceremonies which have been recognized by the statute as being necessary to make the marriage complete and binding. The High Court appears to have been greatly influenced in reaching the conclusion that when the ceremony of Saptapadi is not shown to have been performed the marriage cannot be said to be complete, by its interpretation of Section 50 of the Evidence Act. It was held, vide para 14 of the judgment, that the provisions of Section 50 call for a strict proof of the marriage where marriage is an essential ingredient of a criminal offence. However, as stated earlier, the proviso to Section 50 has a limited scope, it being that the opinion, expressed by conduct, as to the existence of relationship shall not be sufficient to prove a marriage in a prosecution under Section 494 I. P. C. The true import of this proviso is that opinion evidence in criminal cases of the nature mentioned in the section shall not be sufficient by itself to prove a marriage. This proviso does not rule out ether forms of admissible evidence to prove the marriage. Such other evidence may take the shape, or be of the nature, opart from direct evidence, of circumstantial evidence or even presumptive evidence. These two varieties of evidence for proving marriage are not shut out by the two authorities of the Supreme Court cited by Shri Chakraborty either expressly or by implication; therefore, it is open to the Court to reach a finding about the factum of marriage on the basis of combined reading of all varieties of admissible evidence including the opinion evidence of the nature mentioned in the main body of Section 50 of the Evidence Act.
9. This brings us to the examination of the evidence in proof of the complainant's contention that a regular and formal marriage had been celebrated between Rabindra and Anjali on 28th of October, 1959. I may mention at the outset that Rabindra Bhattacherjee, the revision petitioner, is not only M. A. but he holds the degree of P. R. S., Panchatirth and Saptashatri. He is, as is evident from his surname, a high caste Brahmin. He was aged 44 on 20th of March, 1963, when he was examined by the trial Court under Section 342 Cr. P. C. Hence, he was about forty and half at the time of his alleged second marriage. At that time he was employed as a senior lecturer in a college at Agartala. In view of his mature age, high academic qualifications, rich experience as a man of affairs, and his admittedly valid first marriage with the complainant in July 1954, he was expected to know what ceremonies are essential for solemnizing a marriage between Brahmins of high caste in which category he and An.iali Bhattacherjee fall. As far back as 7th of October, 1957, notice Ext. P-l was served by Rabindra through the Advocate Shri Jagadindra Nath Bhattacherjee of Calcutta on Prativa asking her to take up residence with him (Rabindra) within a week from the date of receipt of notice, else steps shall be taken to get the marriage dissolved. Rabindra then sought the permission of the Tripura Administration for taking a second wife. Along with the application addressed to the Administration, he happened to send a copy of the declaration Ext. P-15, dated 15-12-1957, indicating apparently that Prativa had agreed to her husband going in for the second marriage. On receipt of that application together with the enclosure, a Deputy Secretary to the Tripura Administration addressed the letter Ext. P-2 to Prativa enquiring if she had any objection to offer against the permission sought by her husband. Prativa immediately challenged the authenticity of the declaration. Shri Bhattacharjee scrupulously avoided making so much as a reference to this correspondence exchanged between his client and the Government or between the Government and the petitioner during the course of arguments in this Court. Evidently, it must be for the reason that he could not assert that the petitioner had subscribed any declaration of the nature mentioned above. Therefore, I feel safe in holding, in agreement with the Courts below, that this declaration had been fabricated by Rabindra, who, it appears, was anxious to take a second wife even if he had to wash his hands off of all scruples.
10, The accused placed reliance on the telegram Ext. D-9, booked from Calcutta on 22-9-1959 apparently in the name of one Satish, conveying to him the message that 'Prativa died cholera 21 Sept'' to score the point that he believed bona fide on the date of his second marriage that his first wife Prativa had died. It was suggested that Satish who booked this telegram is none but the father of Prativa, Satish Chandra Chakraborty being his full name. This person deposed as P. W. 10 that he had never booked this telegram, nor there was any occasion for it because Prativa was alive and not dead. The findings of the trial court and of the Sessions Judge that this telegram had also been fabricated by the accused Rabindra was also not challenged in this Court by Shri Chakraborty. All these pieces of documentary evidence cumulatively yield the conclusion, when examined in the background of estranged relations between the couple, that Rabindra was dead set to go in for the second marriage, whatever the cost. I believe that the telegram was fabricated by him to get over the reluctance, if any, of Anjali or her parents-in-law to hazard Anjalis' marriage with him when his first wife was alive. If he had any faith in the authenticity of the telegram and the genuineness of its contents, he would have rushed immediately to Calcutta, judged by common human behaviour and conduct, to participate in the funeral ceremonies of his wife and to take care of his only child Rantu who was hardly 4 years on the date the telegram was received. The complete indifference exhibited by the accused on receipt of the telegram is clearly indicative of the conclusion that he knew the worth as also the origin of the document.
11. We have the testimony of Shri M.K. Roy P. W. 3, a lecturer in the college at Agartala where Rabindra was employed in October, 1959. that he was a member of the marriage party at the time of Rabindra's marriage with An.jali, the daughter of the accused Gopal Chakraborty, that he was present at the time of the marriage, and that the marriage 'was performed in accordance with the Hindu Sastras.' He deposed further that Rabindra was married to Anjali and that after the marriage when Rabindra returned to his house with Aniali he arranged the social function called 'Baubhat'. The witness was an invitee to that social function along with his other colleagues from the college. Another statement made by the witness was that he visited the house of Rabindra a number of times after his marriage with Anjali and he noticed that 'Rabindra Babu and Anjali were living as husband and wife.' None of these averments of the witness made on solemn affirmation was challenged during cross-examination. Taking into consideration the importance of the case as also the social status enjoyed by the complainant and the accused, if there were the slightest doubt about the factum or validity of marriage between Rabindra and Anjali, the defence counsel would have exhibited much assiduity in cross-examining the witness in minute details about the ceremonies that were gone through or non-performance of essential ceremonies that go to make for a valid marriage. The complete silence on the subject of marriage by the defence counsel during cross-examination of the witness is consistent only with the conclusion that the marriage or its validity was never challenged.
12. P. W. 2 Shri S.K. Choudhury is the Principal of M. B. B. Government College, Agartala, where Rabindra was employed as a senior lecturer in October, 1959. The witness affirmed that when Rabindra was serving in the college he took a wife and that after the marriage Rabindra invited him to a feast in celebration of that marriage. Rabindra and his wife Anjali, the witness added, also visited his house after the marriage. The only question put to the witness in cross-examination respecting the marriage was as to on what date it was celebrated. The witness was unable to provide the date. That was not abnormal because he had not attended the marriage and he happened to appear in the Court about 2 1/2 years after the marriage took place. His statements that Rabindra had taken Anjali as his wife, that after the marriage between them Rabindra had invited him to a feast in his house, and that the couple happened to visit his house after marriage were not challenged.
13. Shri A.K. Bhattacharyya (P W. 5) is a lecturer in the college where Rabindra was employed. Tie stated in examination-in-chief that Rabindra had told him. that he hnd married in October, 1959. This statement of the witness was also not challenged in cross examination.
14. Ext. P-12 is a letter dated 4-2-1960 which Rabindra addressed the Chief Commissioner, Tripura. The contents of the letter read as under:
After receiving the death news of my former wife late Prativa Bhattacharyya M. A., who died on 21st September 1959, I married again on 28th October 1959, in accordance with the Hindu Shastras. This Is for your Information.
15, I have already reproduced above the statement made by the accused Rabindra under Section 342 Cr. P. C. He did not deny therein his second marriage with Anjali, though he affirmed that the reason for it was that he believed that his first wife was not alive.
16. The evidence marshalled above leaves no room for doubt that Rabindra had married Anjali on 28th of October, 1959, in accordance with the injunctions of Hindu Sastras and since it was not disputed before me that a valid marriage according to such Sastras can be solemnized only if the ceremony of Saptapadi is gone through in the presence of the sacred fire, 1 hold that a marriage ceremony complete in all respects had been gone through between Rabindra and Anjali on 28th of October, 1959. In reaching the conclusion I have taken note of the fact that there is no witness who has affirmed that the ceremony of Saptapadi had taken place. However, the circumstantial and opinion evidence coupled with the direct and unchallenged testimony of P. W. 3 Shri M.K. Roy and the uneauivocal admission made by the accused in the document Ext. P-12 constitute suificient evidence justifying the Court to presume that all ceremonies that were essential to bring about a valid marriage alliance between Rabindra and Anjali had been performed.
17. The expression 'proved' is defined in Section 3 of the Evidence Act in the following terms:
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
This definition permits the Court to take into consideration all varieties of admissible and relevant pieces of evidence while adjudicating upon whether a particular fact is proved or not. The expression 'after considering the matters before it' employed in the definition is of such wide amplitude as to justify the Court taking into consideration, besides the direct and the circumstantial cvilence, the opinion evidence made relevant by Section 50 of the Evidence Act, he pretrial admissions of the accused, and the statement made by the accused, during the trial, under Section 342 Cr. P. C. In the instant case, I cannot ignore the facts that the accused had been planning for a period of about two years before 28-10-1959 to go in for second marriage, that he fabricated evidence to secure permission from the Government for taking a second wife and for carrying conviction with his second wife and her parents that his first wife had died, and that his counsel did not challenge the testimony of P. Ws. 2, 3 and 5 that he had gone into second marriage with Anjali in October, 1959. Hence, I affirm the finding of the trial Court and of the appellate Court that Rabindra had entered into a valid marriage with Anjali on 28-10-1959 and that that marriage is void only for the reason that it took place during the lifetime of the first spouse of Rabindra. I may usefully invite reference to the case of Emperor v. Mt. Soni AIR 1936 Nagpur 13. The head-note (a) of the authority runs as under:
In the trial of an offence under Section 494, Penal Code, it was alleged that S was the married wife of B. B stated that he married S about 10 years ago and two other witnesses stated that they were present at the marriage. S's uncle who had brought her up and arranged the marriage with B admitted that she was the married wife of B. There was also other evidence which was not challenged to show that B and S lived together as husband and wife and were believed to be legally married:
Held: that any prudent man would act upon the supposition that S was the legally married wife of B, hence the marriage of S with B should be deemed to be proved.
The proposition that emerges from this head-note negatives the contention of Shri Chakraborty that unless there is some dependable witness to testify that the ceremony of Saptapadi had been gone through, the marriage cannot be said to have been proved in law.
18. No other point was urged before me by Shri Chakraborty in support of the prayer made in the revision petition.
19. As a result of the conclusions recorded above, I confirm the conviction as well as sentence of Rabindra Bhatta-charjee and dismiss the revision petition.