M.C. Chagla, C.J.
1. This is an application in revision against an order passed by the Additional Resident Magistrate, Thana, by which he convicted the accused under Section 5 of the Bombay Prevention of Bigamous Marriage Act, 1946, read with Section 494 of the Indian Penal Code, 1860, and sentenced him to one day's simple imprisonment and a fine of Rs. 10.
2. Applicant No. 1 along with three others were tried by the Additional Resident Magistrate, Thana. The applicant was charged with having married accused No. 2 while the first marriage was subsisting. Accused No. 3 was the father of the applicant and accused No, 4 was the brother-in-law of accused No. 2. The father of the applicant and the brother-in-law of accused No. 2 were charged with having aided and abetted in the solemnisation of the marriage. The learned Magistrate convicted all the four accused, and there was an appeal from his decision to the Court of Session, and the learned Sessions Judge dismissed the appeal. From that decision only the applicant who was accused No. 1 has come in revision before us.
3. Mr. Rege, who appears for the applicant, has raised before us several interesting questions as to the validity of the Bombay Prevention of Bigamous Marriage Act, 1946. This Act of 1946 applies to Hindus and Section 4 declares a bigamous marriage to be void notwithstanding any law, custom or usage to the contrary, and by Section 5 the contracting of a bigamous marriage is constituted an offence and is deemed to be an offence under Section 494 of the Indian Penal Code. Sections 6 and 7 are penal sections which penalise the solemnising of a bigamous marriage and provides a penalty for persons having charge of a minor concerned in a bigamous marriage. Section 8 provides for the forum and states that no Court other than that of a Presidency Magistrate or a Magistrate of the First Class shall take cognisance of and try any offence punishable under Section 6 or 7 of the Act, and Section 9 makes offences under the Act cognisable.
4. This Act was passed by the Provincial Legislature and the Provincial Legislature was competent to enact this legislation inasmuch as the subject of marriage and divorce falls in item (5 of List III in Schedule VI. That is a list which deals with subjects with regard to which both the Central and the Provincial Legislature can legislate. But Mr. Rege's contention is that although the Provincial Legislature was competent to pass this Act, this Act is void inasmuch as it is repugnant to an existing Indian law and the argument is put in this way. Under Hindu law bigamous marriages are permitted. They are not only not void but they are perfectly valid. Inasmuch as the Provincial Legislature by passing the Act has rendered bigamous marriages void, that provision is repugnant to the existing Hindu law and to the extent of that repugnancy the Act passed by the Provincial Legislature is void and of no effect.
5. Section 107 of the Government of India Act deals with inconsistency between Federal or Central laws and Provincial laws and Sub-section (1) provides that if a Provincial law is repugnant to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then the existing Indian law shall prevail and the Provincial law shall, to the extent of the repugnancy, be void. But Sub-section (2) provides a saving clause and that lays down that if the assent of the Governor-General has been received to a Provincial Act which deals with a subject in the Concurrent List, then the Provincial law shall prevail notwithstanding its repugnancy to the existing Indian law. It is common ground here that the assent of the Governor-General was not received to this Act and therefore Mr. Rege is right that if he satisfies us that this legislation is repugnant to any existing Indian law, then to the extent of the repugnancy this Act must be held to be void.
6. Now, 'existing Indian law' is defined by Section 311 of the Government of India Act and the definition is this. 'Existing Indian law' means any law, ordinance, order, byelaw, rule or regulation passed or made before the commencement of Part III of this Act by any legislature, authority or person in any territories for the time being comprised in British India, being a legislative authority or person having power to make such a law, ordinance, order, byelaw, rule or regulation.
7. The question that we have to determine is whether Hindu Law is a law passed or made by any Legislature, authority or person. There can be no doubt that Hindu Law is law, but the question that arises is whether it is a law that has been passed or made by any legislature, authority or person as contemplated by the definition of this phrase in Section 311 of the Government of India Act. Mr. Rege contends that Hindu law is administered in the High Court and in the civil Courts in the Province by reason of the fact that it was accepted or adopted by the British Government. It is true that there are enactments, Parliamentary or Indian, which direct that Hindu law should be applied in administering justice in the High Court and in the Provincial civil Courts; for instance, it is by reason of the Government of India Act that Hindu law is applied in the High Court. It is by Section 26 of Bombay Regulation IV of 1827 that Hindu law is applied in the civil Courts in the Province. But because Hindu law is applied in the administration of justice by directions of a competent Legislature, it does not follow that Hindu law was passed or made by a Legislature, It is impossible to accept the contention of Mr. Rege that we must read 'passed' in this section to mean 'approved or adopted by the Government,' 'Passed' in this context can only mean as 'having received the sanction or imprimatur of the Legislature or of legislative authority' and Hindu law was the law of this country as far as its Hindu residents were concerned long long ago before the advent of the British into this country. All that the British did was to accept the law, to approve of it or to adopt it and to direct that that law shall be applied in the Courts of law when the parties were of that particular persuasion. But the British had no hand whatever in passing or making Hindu law. As I said, it already existed and was in force long before the British appeared on the scene. Therefore, Mr. Rege is not right when he says that this Act is repugnant to an existing Indian law. It may be that it is repugnant to Hindu law. But it is perfectly competent to the Provincial Legislature to amend or modify Hindu law if it does with regard to a matter which falls within either List II or List III. As far as marriage and divorce is concerned, the power is given both to the Central and the Provincial Legislature to legislate about that subject and the Provincial Legislature has the right to modify the Hindu law to the extent that it applies in the Province of Bombay.
8. The next point urged by Mr. Rege is that this prosecution was launched without any complaint having been made by the aggrieved party as required by Section 198 of the Criminal Procedure Code, 1898. We have held in Emperor v. Manju Hanumant Naik : (1948)50BOMLR379 that by reason of Section 9 which makes offences under the Act cognisable the complaint of the aggrieved party required by Section 198 is no longer necessary for the initiation of the prosecution.
9. The next point urged by Mr. Rege is that as the sentence for an offence created under this Act is seven years' rigorous imprisonment, under the second schedule to the Criminal Procedure Code the proper forum for trying the ease is the Court of Session and not a First Class Magistrate. In the second schedule to the Criminal Procedure Code it is provided under the heading 'Offences against other laws' that if those offences are punishable with death, transportation or imprisonment for seven years or upwards it is the Court of Session that has to try the case. But in our opinion this is not an offence against 'other law' but it is an offence which has been made an offence under the Indian Penal Code itself. While it is true that Section 5 creates a new offence, in terms it states that that offence shall be deemed to be an offence under Section 494 of the Indian Penal Code. No penalty is provided under the Act itself, and as it has been made penal under Section 494, one has to turn to Section 494 to find out what the penalty for the offence is. It is difficult to see why, if for the purpose of the penalty one has to turn to Section 494, we should not turn to s, 494 also for the purpose of determining what the proper forum for the trial of the offence is, and there is no doubt that as far as Section 494 is concerned, the proper forum is not necessarily the Court of Session but it may be a Presidency Magistrate or a Magistrate of the First Class. As I see it, the Legislature having created this new offence intended that all the provisions of Section 494 should apply to this newly created offence except those which were in terms altered by the Act itself, one for instance being that the offence is made cognisable and not subject to any complaint made by the aggrieved party under Section 198.
10. The last point urged by Mr. Rege is that no prima facie case was made out before a charge was framed and before the plea of the accused was taken. It is important to note that in this case all the four accused pleaded guilty to the charge of having committed an offence under this Act, This point was not raised in the Court of appeal below and really Mr. Rege is asking us to look into the evidence to find out whether a prima facie case was made out or not before the charge was framed. That is not the proper function of the Court exercising its revisional powers. Apart from that, even assuming Mr. Rege was right inasmuch as the accused have pleaded guilty to the charge, the framing of the charge before a proper prima facie case was made out would at the most be an irregularity which in this case certainly did not prejudice the accused. Nor did it lead to any injustice. The position might have been different if the accused had pleaded not guilty and the case had gone to a trial, but inasmuch as the plea of guilty was recorded and no further evidence was led, there is no substance in this complaint of Mr. Rege.
11. I might say that the learned Resident Magistrate has written a very well considered judgment on questions which do not usually come before criminal Courts and has shown considerable grasp of the law on the subject and of various interesting and complicated questions that arose before him and which he had to determine.
12.The revisional application must fail and the rule is discharged.