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IN THE COURT OF JUDICIAL MAGISTRATE, FIRST

CLASS, KAMRUP : : GUWAHATI

C.R. Case No. 1630/2001.

U/S. 494 IPC

Mrs. Arpana Das (Kalita)

-Vs-

Sri. Lankeswar Kalita.

PRESENT: N. AKHTAR, AJS.

ADVOCATES APPEARED:

For the complainant: Mr. D.K.Mahanta and,

Mr. R.K.Medhi.

For the accused : Mr.K.P.Gogoi.

Dates of evidence : 14.5.02, 31.5.02, 16.7.02,

28.4.04,

7.7.04, 1.9.04, 6.10.04, 15.3,05

and

1.4.05.

Date of arguments : 26.02.2010.

Contd.
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Date of judgment : 08.03.2010.

JUDGMENT

The Complainant namely Smti. Arpana Das was

married to Sri Lankeswar Kalita on 15.7.1994 and
thereafter, they started living together as husband
and wife but the union did not last long. Soon
thereafter, the complainant was allegedly tortured
for various reasons and finally, she had to lodge an
FIR with the All Women PS at Panbazar which came
to be registered as All Women PS case no 10/1996.
The complainant then, also filed an application for
maintenance before the learned Principal Judge,
Family Court vide case no FC 113/1996.

Meanwhile, the accused filed an application u/s 13

of the Hindu Marriage Act, 1955 praying for a
divorce. However, the maintenance proceeding
was amicably disposed of in Lok Adalat at
Guwahati on 1.12.1996 and the parties again
started living together but the problems again
cropped up and finally, the complainant had to
leave the matrimonial home on 13.8.1996.

During the pendency of the Divorce Suit, on

12.7.2001, the accused husband married one Smti
Geeta Deka, D/O Sri Biren Deka of Mayang in the

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district of Marigaon, Assam. The said marriage was

alleged to be solemnized as per Sankari rites and
rituals which has compelled the complainant to file
this instant complainant before the learned Chief
Judicial Magistrate, Kamrup.

Having received the same, it was registered as

aforesaid and made over to this court for disposal.
The complainant was examined u/s 200 CrPC and
after examining two witnesses u/s 202 CrPC,
cognizance was taken and process was issued u/s
494 IPC against the accused whereupon, he
appeared. Evidence of four witnesses were
altogether recorded and thereafter, charge u/s 494
IPC was framed and read over and explained to
which the accused pleaded not guilty and claimed
to be tried. Thereafter, the witnesses for the
complainant were cross examined. On closure of
the prosecution evidence, my learned predecessor
examined the accused u/s 313 CrPC and evidence
of four defence witnesses was also recorded.
Finally, arguments were heard and the judgment
was also delivered by my learned predecessor
convicting and sentencing the accused person as
per law.

The judgment so passed by my learned

predecessor was put to challenge in appeal (being
Crl Appeal no.61/2001 decided on 24.1.2007) and
the learned Appellate Court set aside the said

Contd.
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judgment of conviction and sentence on the

ground that there were serious irregularities(as
observed by the learned Appellate Court) in
respect of the examination of the accused u/s 313
CrPC and the case was remanded back to this
court with a direction to examine the accused u/s
313 CrPC afresh and to write a fresh judgment. It is
only at this point of time that I have been able to
lay my hands on the said case and in pursuance of
the direction of the learned Appellate Court, I have
examined the accused afresh u/s 313 CrPC, heard
the arguments of the learned counsel for both the
sides and have proceeded to deliver this fresh
judgment.

POINT FOR DETERMINATION:

Whether the accused Sri Lankeswar Kalita on

12.7.2001, having a wife namely Smti Arpana Das
living, married again one Ms. Geeta Deka, such
marriage being void by reason of its taking place
during the life of Smti Arpana Das and thereby he
had committed an offence u/s 494 IPC?

DISCUSSION, DECISION AND REASONS THEREOF:

This is a case where a man has been prosecuted for

bigamy which is an offence u/s 494 IPC. There are

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several important aspects of the law relating to the

offence of bigamy in India which are to be clearly
borne in mind before holding a man guilty of the
said offence. It is, therefore, considered necessary
to discuss those aspects at the outset before I go
into the facts and the evidence of this case.

Unlike in England, a man is guilty of an offence of

bigamy in India only when he marries for the
second time during subsistence of an earlier valid
marriage. To put it differently, a man who has
already solemnized a valid marriage and he has a
spouse living and then he has solemnized a second
valid marriage which then would be void because
of its taking place during the life of such
wife/husband, would be guilty of bigamy in India.
Therefore, one of the very essential features of the
offence of bigamy in India is that both the
marriages must be validly solemnized. In England
however, a man would be guilty of bigamy even if
the second marriage is void ab initio provided his
first marriage was a valid one but the same is not
the case in India. Here, I would like to refer to the
case of Dr. Pabitra Kr Das -Vs- State of Assam and
anr reported in (2009)2 GLR 637 wherein the
Honble Gauhati High Court while dealing with the
ingredients of the offence u/s 494 IPC, in para 7
observed thus:

Contd.
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A careful reading of section 494,IPC,

makes it clear that in order to make a
person guilty of an offence u/s 494 IPC
what has to be proved is that the second
marriage would have been valid, but for
the fact that the person, undergoing the
marriage, in question, (i.e., the second
marriage) was already married. It
logically follows that if the second
marriage has to be void, the first
marriage must be legally valid. If the first
marriage is not legally valid, the question
of the second marriage being void does
not arise at all. Hence, the second
marriage too must have all the
ingredients of a valid marriage, for, when
the second marriage is not valid or is not
according to law, it would, otherwise,
also be void. Consequently, no offence,
in such a case, can be said to have
been made out u/s 494 IPC.

In para 9 of the aforesaid decision, it was further

observed thus:

Unless, therefore, the requirements of a

valid marriage are established in both
the marriages of the person, who is
sought to be prosecuted, the offence u/s

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494 IPC, cannot be said to have been

completed.

Moreover, while dealing with an offence u/s 494

IPC, it is important to bear in mind the provision of
section 17 of the Hindu Marriage Act, 1955 which
runs thus:

Any marriage between two Hindus

solemnized after the commencement of
this Act is void if at the date of such
marriage either party has a husband or
wife living and the provisions of section
494 and 495 of Indian Penal Code shall
apply accordingly.

In the case of Gopal Lal -Vs- State of Rajasthan, AIR

1979 SC 713, the Honble Apex Court in para 6 of
the judgment, observed thus:

Where a spouse contracts a second

marriage while the first marriage is still
subsisting, the spouse would be guilty of
bigamy u/s 494 IPC 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 u/s 17 of the Hindu Marriage
Act is in fact one of the essential

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ingredients of section 494 because the

second marriage will become void only
because of the provisions of section 17 of
the Hindu Marriage Act.

Bearing the above principles of law in mind, now,

let me peep into the evidence led in this case in
order to bring home the charge against the
accused:

PW 1(Munindra Talukdar) and PW 3(Paramesh Das)

are the witnesses who deposed that they could
hear about the second marriage of the accused
from one Nagen Bharali who told them that the
accused solemnized his marriage on 12.7.2001 with
one Geeta Deka, daughter of one Biren Deka.
Then, they went to the village of the accused and
on reaching the house of the accused, they met
the father of the accused and also one Ms. Geeta
Deka who was the alleged second wife of the
accused. The father of the accused then told them
that his son (i.e. the accused) had solemnized a
second marriage. It is true that both of these
witnesses did neither see themselves the second
marriage of the accused nor did they attend the
marriage of the accused. Moreover, the said
Nagen Bharali from whom they are stated to have
learnt about the marriage was not examined by
the prosecution but the fact remains that both of
these witnesses went to the house of the accused

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within a few days of the alleged marriage and met

the said second wife of accused Ms Geeta Deka
there and also the father of the accused who told
them that the accused had contracted a second
marriage. To this extent, in my opinion, their
evidence is direct.

Another important question which may arise here is

as to whether the statement allegedly made by the
father of the accused to PW1 and PW 3 that the
accused had contracted a second marriage is
hearsay as the said father of the accused is not a
witness in this case or the same can nevertheless,
be acted upon. A quest for the answer of this
question has led me to the decision of Mangal Deb
Barma vs State of Tripura reported in (2010) 1 GLR
20, wherein dealing with this aspect of law, the
Honble Gauhati High Court in para 13 observed
thus:

While dealing with a piece of evidence

, which is regarded as hearsay, the
courts must bear in mind that there is a
difference, though subtle, between
factum of an information and
truthfulness/veracity of such information.
In a given case, if the object is to merely
establish that a statement was made, it
may not be hearsay, but if the object is

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to prove that was stated was true, then,

it may become hearsay.

Viewed from this angle, if we look into the evidence

of PW 1 and PW 3 as regards the statement made
to them by the father of the accused to the effect
that the accused had contracted a second
marriage, it can be clearly conceived that the
object is not to establish that what was stated by
the father of the accused was true but the object is
only to establish that such a statement was made.
Therefore, the same is relevant and can be acted
upon together with the other evidence that might
be forthcoming in this case.

While browsing through the evidence on record, it

has further appeared to me that amongst the
witnesses examined, PW 4 (Manjura Deka) and PW5
(Ramesh Das) are the witnesses who have claimed
to have attended the marriage of the accused
which was allegedly solemnized with the said Ms.
Geeta Deka. PW 4 deposed that the said marriage
was solemnized in the house of Biren Deka, the
father of Ms. Geeta Deka and he witnessed the
said marriage. He also met PW5 in the said
marriage. He was invited to the marriage from the
side of the bride. It is also in the evidence of PW 4
that after the said marriage, the accused took the
second wife Ms. Geeta Deka to his house and they
lived as husband and wife. The evidence of PW5

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also shows that he was present in the said marriage

of the accused with Ms. Geeta Deka. He also
stated that the father of the bride Sri Biren Deka
and PW5 belonged to the Sankari sect and both
of them were priests of the said sect and
accordingly, he (PW5) was invited to the marriage.
He had further deposed that the said marriage was
solemnized according to the Sankari rites by
recital of Naam-Prasanga (religious hymns and
songs). It is further in the evidence of PW5 that one
Nagen Bharali recited the Naam-Prasanga in the
said marriage which is further supported by PW4.
That apart, PW1 had also deposed in his evidence
that the said Nagen Bharali had met him and told
that he recited the Naam-Prasanga in the said
marriage.

It is imperative to mention here that the fact that

the said Geeta Deka was staying in the house of
the accused and also the fact that there was
Naam-Prasanga on 12.7.2001 were not denied by
the defence as the defence suggested PW2
(Arpana Kalita) while under cross examination that
the said Geeeta Deka was a maidservant only in
the house of the accused. Moreover, the defence
also clearly admitted while cross examining PW 4
and PW 5 that there was Naam-Prasanga on
12.7.2001 but there was no marriage at all, but what
is interesting to note is that the defence could not

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show as to why the said Naam-Prasanga was

performed on that day if there was no marriage at
all.

Moreover, the case of the prosecution is that the

said marriage was solemnized in the house of
Geeta Deka and hence, the Naam-Prasanga
which was stated to have taken place, in fact, took
place in the house of the bride Geeta Deka only
and nowhere else. Therefore, in view of the
admission by the defence of the performance of
the Naam-Prasanga on 12.7.2001, the defence
should have offered a reason for such performance
which the defence could not do in this case.
Therefore, the fact that the father of the accused
made the statement that his son solemnized a
second marriage, the further fact that Geeta Deka
was found in the house of the accused by PW 1
and PW3, and also the fact that there was Naam-
Prasanga on 12.7.2001. in the house of Geeta
Deka coupled with the clinching evidence of PW4
and 5 as regards solemnization of the marriage of
the accused with Geeta Deka as per Sankari rites
have, in my considerd opinion, clearly established
the fact that the accused had solemnized a
second marriage with one Geeta Deka on
12.7.2001 and the same was validly performed
according to the religious rites of the parties.

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Now, the most crucial question would be as to

whether the first marriage of the accused with PW2
(Smti.Arpana Kalita) was a valid one. In this regard,
the evidence of PW1 who is the bhindeu( brother-
in-law)of PW1 is significant.

PW1 deposed that the complainant PW2 was his

khulkhali(sister-in-law) and she was married to the
accused on 15.7.1994. After the marriage, she
stayed in the house of the accused for about four
years. In his cross examination, he deposed in no
uncertain words that the said marriage between
the accused and PW2 was performed according to
the Sankari rites. Moreover, PW2 in her evidence
stated that her marriage was solemnized with the
accused on 15.7.1994 according to Sankari rites as
the accused belonged to Sankari sect. That apart,
PW4 also deposed in his evidence that the
marriage between the accused and PW2 took
place in 1994 and he was present in the said
marriage. In view of the aforesaid evidence to the
effect that the marriage between the accused and
PW2 was solemnized on 15.7.1994 according to
Sankari rites as the parties belonged to Sankari sect,
it can be safely assumed that the same was validly
performed in as much as the validity of the same
was also not disputed by the defence at any point
of the trial.

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We cannot lose sight of the evidence adduced by

the four defence witnesses in this case who are
DW1 (Jatin Deka), DW2 (Ananda Deka), DW3
(Telbor Konwar) and DW4 (Tiken Barma). I have
carefully gone through their evidence but found it
difficult to rely on the same. Most of the DWs have
deposed that about 2/3 years back, there was a
marriage in the house of the accused but it was the
marriage of the sister of the accused and after that,
there was no marriage solemnized. DW3 on the
other hand, deposed that he has no knowledge if
the accused has solemnized a second marriage.
Thus, this witness did not completely rule out the
possibility of the solemnization of the second
marriage by the accused. In the same tune, DW4
has also deposed that he does not know that the
accused has solemnized a second marriage. Thus,
this, being the quality of the evidence led by the
defence, in my humble opinion, the same can
never have an overriding effect over the evidence
which have been led by the prosecution.

The evidence of the prosecution has been found to

be cogent, convincing and trustworthy. The
defence has substantially cross examined each of
the witnesses but has totally failed to erode their
credibility.

In the light of the above discussions, it can be safely

concluded that the accused Sri Lankeswar Kalita

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had, on 12.7.2001, solemnized a marriage with one

Smti. Geeta Deka during the subsistence of an
earlier valid marriage and a wife living, and
thereby, he has committed an act which is not
permissible under the law and rather it is an offence
of bigamy punishable u/s 494 of the Indian Penal
Code.

Situated thus, I have no option but to hold that the

prosecution has succeeded in proving its case
against the accused beyond all reasonable doubts.
He is, therefore, found guilty of the offence u/s 494
IPC and convicted accordingly.

Considering the facts and circumstances of the

case and also the fact that the accused is a man
of sufficiently matured understanding being fully
capable of perceiving the implication of his
misdeed, I am not inclined to extend the benefit of
the provisions of the Probation of Offenders Act,
1958 to the accused person.

I have heard the accused on the question of

sentence but he has chosen to state nothing
except that he is fully innocent.

Thus, on conviction and upon being so heard on

the question of sentence, I sentence the accused
to suffer SI for 1(one) year and to pay a fine of Rs.
5000.00(five thousand) and in default, to suffer
further SI for 3(three) months u/s 494 IPC.

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Let a free copy of this judgment be furnished to the

accused forthwith.

Given under my hand and seal of this court on the 8

th day of March/2010.

Typed and corrected by me: (NASIM

AKHTAR)

Judicial Magistrate,1st Class.

Guwahati,
ASSAM.

Contd.