S Nagalingam v Sivagami Family Law Case Analysis

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K.G. BALAKRISHNAN, J. – 3. The appellant S. Nagalingam married respondent
complainant Sivagami on 6-9-1970. Three children were born from that wedlock. The respondent
alleged that the appellant started ill-treating her and on many occasions she was physically
tortured. As a result of ill-treatment and severe torture inflicted by the appellant as well as his
mother, she left her marital home and started staying with her parents. While so, the respondent
came to know that the appellant had entered into a marriage with another woman on18-6-1984,
by the name of Kasturi, and that the marriage was performed in a marriage hall at Thiruthani.
The respondent then filed a criminal complaint before the Metropolitan Magistrate against the
appellant and six others All the accused were acquitted by the trial court. Aggrieved thereby, the
respondent filed Criminal Appeal No. 67 of 1992 before the High Court of Madras.The learned
Single Judge, by his judgment dated 1-11-1996 upheld the acquittal of Accused 2- 7, but as
regards the acquittal of the appellant, the matter was remitted to the trial court permitting the
complainant to adduce evidence regarding the manner in which the marriage wassolemnized.
Upon remand, the priest (PW 3), who is alleged to have performed the marriage of the appellant
with the second accused, Kasturi, on 18-6-1984, was further examined and the appellant was
allowed further cross-examination. The learned Metropolitan Magistrate by his judgment dated
4-3-1999 acquitted the accused. Aggrieved by the said judgment, the respondent preferred a
criminal appeal before the High Court of Madras. By the impugned judgment, the learned Single
Judge held that the appellant had committed the offence punishable under Section 494 IPC. This
is challenged before us.

5. The short question that arises for our consideration is whether the second marriage entered
   into by the appellant with the second accused, Kasturi, on 18-6-1984 was a valid marriage under
   Hindu law so as to constitute an offence under Section 494 IPC.
6. The essential ingredients of the offence under Section 494 IPC are: (i) the accused must
   have contracted the first marriage; (ii) whilst the first marriage was subsisting, the accused must
   have contracted a second marriage; and (iii) both the marriages must be valid in the sense that
   necessary ceremonies governing the parties must have been performed.
7. Admittedly, the marriage of the appellant with the respondent, entered into by them on 6-
   9-1970, was subsisting at the time of the alleged second marriage. The Metropolitan Magistrate
   held that an important ceremony, namely, “saptapadi” had not been performed and therefore, the
   second marriage was not a valid marriage and no offence was committed by the appellant. The
   learned Single Judge reversing this decision in appeal held that the parties are governed by
   Section 7-A of the Hindu Marriage Act as the parties are Hindus residing within the State of
   Tamil Nadu. It was held that there was a valid second marriage and the appellant was guilty of
   the offence of bigamy.
8. In the complaint filed by the respondent, it was alleged that the appellant had contracted
   the second marriage and this marriage was solemnised in accordance with Hindu rites on 18-6-
   1984 at RCC Mandapam, Thiruthani Devasthanam. To support this contention, PWs 2 and 3 were
   examined. PW 3 gave detailed evidence regarding the manner in which the marriage on 18-6-
   1984 was performed.
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9. Learned counsel for the appellant contended that as per the evidence of PW 3, it is clear
   that “saptapadi”, an important ritual which forms part of the marriage ceremony, was not
   performed and therefore, there was no valid marriage in accordance with Hindu rites.
10. It is undoubtedly true that the second marriage should be proved to be a valid marriage
    according to the personal law of the parties, though such second marriage is void under Section
    17 of the Hindu Marriage Act having been performed when the earlier marriage is subsisting.
    The validity of the second marriage is to be proved by the prosecution by satisfactory evidence.
11. In Kanwal Ram v. H.P. Admn [AIR 1966 SC 614] this Court held that in a bigamy case,
    the second marriage is to be proved and the essential ceremony required for a valid marriage
    should have been performed. It was held that mere admission on the part of the accused may not
    be sufficient.
12. The question as to whether “saptapadi” is an essential ritual to be performed, came up for
    consideration of this Court in some cases. One of the earliest decisions of this Court is PriyaBala
    Ghosh v. Suresh Chandra Ghosh [(1971) 1 SCC 864] wherein it was held that the second
    marriage should be a valid one according to the law applicable to the parties. In that case, there
    was no evidence regarding the performance of the essential ceremonies, namely, “datta homa”
    and “saptapadi”. In para 25 of the judgment, it was held that the learned Sessions Judge and the
    High Court have categorically found that “homa” and “saptapadi” are theessential rites for a
    marriage according to the law governing the parties and there is no evidencethat these two
    essential ceremonies have been performed when the respondent is stated to have married Sandhya
    Rani. It is pertinent to note that in para 9 of the judgment it is stated that both sides agreed that
    according to the law prevalent amongst the parties, “homa” and “saptapadi” were essential rites
    to be performed to constitute a valid marriage. Before this Court also, the parties on either side
    agreed that according to the law prevalent among them, “homa” and “saptapadi” were essential
    rites to be performed for solemnization of the marriage and there was no specific evidence
    regarding the performance of these two essential ceremonies.
13. Lingari Obulamma v. L. Venkata Reddy [(1979) 3 SCC 80] was a case where the High
    Court held that two essential ceremonies of a valid marriage, namely, “datta homa” and
    “saptapadi” (taking seven steps around the sacred fire) were not performed and, therefore, the
    marriage was void in the eye of the law. This finding was upheld by this Court. The appellant
    therein contended that among the “Reddy” community in Andhra Pradesh, there was no such
    custom of performing “datta homa” and “saptapadi”, but the High Court held that under the Hindu
    law, these two ceremonies were essential to constitute a valid marriage and rejected the plea of
    the appellant on the ground that there was no evidence to prove that any of these two ceremonies
    had been performed. The finding of the High Court was upheld by this Court that there was no
    evidence to prove a second valid marriage.
14. In Santi Deb Berma v. Kanchan Prava Devi [1991 Supp (2) SCC 616] also, the
    appellant was acquitted by this Court as there was no proof of a valid marriage as the ceremonial
    “saptapadi” was not performed. This Court noticed in this case also that the High Court proceeded
    on the footing that according to the parties, performance of “saptapadi” is one of the essential
    ceremonies to constitute a valid marriage.
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15. Another decision on this point is Laxmi Devi v. Satya Narayan [(1994) 5 SCC 545]
    wherein this Court, relying on an earlier decision in Priya Bala held that there was no proof that
    “saptapadi” was performed and therefore, there was no valid second marriage and that no offence
    of bigamy was committed.
16. In the aforesaid decisions rendered by this Court, it has been held that if the parties to the
    second marriage perform traditional Hindu form of marriage, “saptapadi” and “datta homa” are
    essential ceremonies and without there being these two ceremonies, there would not be a valid
    marriage.
17. In the instant case, the partiesto the second marriage, namely, the appellant Nagalingam,
    and his alleged second wife, Kasturi, are residents of the State of Tamil Nadu and their marriage
    was performed at Thiruthani Temple within the State of Tamil Nadu. In the Hindu Marriage Act,
    1955, there is a State amendment by the State of Tamil Nadu, which has been inserted as Section
    7-A. The relevant portion thereof is as follows:
    7-A. Special provision regarding suyamariyathai and seerthiruththa marriages.-
    (1) This section shall apply to any marriage between any two Hindus, whether called
    suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnised
    in the presence of relatives, friends or other persons –
    (a) by each party to the marriage declaring in any language understood by the parties
    that each takes the other to be his wife or, as the case may be, her husband; or
    (b) by each party to the marriage garlanding the other or putting a ring upon any
    finger of the other; or
    (c) by the tying of the thali.
    (2) (a) Notwithstanding anything contained in Section 7, but subject to the other
    provisions of this Act, all marriages to which this section applies solemnised after the
    commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, shall be
    good and valid in law.
    (b) Notwithstanding anything contained in Section 7 or in any text, rule or
    interpretation of Hindu law or any custom or usage as part of that law in force
    immediately before the commencement of the Hindu Marriage (Tamil Nadu
    Amendment) Act, 1967, or in any other law in force immediately before such
    commencement or in any judgment, decree or order of any court, but subject to subsection (3), all marriages to which this section applies solemnised at any time before such
    commencement, shall be deemed to have been, with effect on and from the date ofthe
    solemnization of each such marriage, respectively, good and valid in law.
18. Section 7-A applies to any marriage between two Hindus solemnised in the presence
    of relatives, friends or other persons. The main thrust of this provision is that the presence of
    a priest is not necessary for the performance of a valid marriage. Parties can enter into a
    marriage in the presence of relatives or friends or other persons and each party to the marriage
    should declare in the language understood by the parties that each takes the other to be his
    wife or, as the case may be, her husband, and the marriage would be completed by a simple
    ceremony requiring the parties to the marriage to garland each other or put a ring upon any
    finger of the other or tie a thali. Any of these ceremonies, namely, garlanding each other or
    putting a ring upon any finger of the other or tying a thali would
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    be sufficient to complete a valid marriage. Sub-section (2)(a) of Section 7-A specifically says
    that notwithstanding anything contained in Section 7, all marriages to which this provision
    applies and solemnised after the commencement of the Hindu Marriage (Tamil Nadu
    Amendment) Act, 1967, shall be good and valid in law. Sub-section (2)(b) further says that
    notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu
    law or any custom or usage as part of that law in force immediately before the commencement
    of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, or in any other law in force
    immediately before such commencement or in any judgment, decree or order of any court,
    all marriages to which this section applies solemnised at any time before such
    commencement, shall be deemed to have been valid. The only inhibition provided is that this
    marriage shall be subject to sub-section (3) of Section 7-A. We neednot elaborately consider
    the scope of Section 7-A(3) as that is not relevant for our purpose.
19. The evidence in this case as given by PW 3 clearly shows that there was a valid marriage
    in accordance with the provisions of Section 7-A of the Hindu Marriage Act. PW 3 deposed that
    the bridegroom brought the “thirumangalam” and tied it around the neck of the bride and
    thereafter the bride and the bridegroom exchanged garlands three times and the fatherof the bride
    stated that he was giving his daughter to “kanniyathan” on behalf of and in the witness of
    “agnidevi” and the father of the bridegroom received and accepted the “kanniyathan”. PW 3 also
    deposed that he performed the marriage in accordance with the customs applicable to the parties.
20. Under such circumstances, the provisions of Section 7-A, namely, the State amendment
    inserted in the statute are applicable and there was a valid marriage between the appellant and
    Kasturi. Moreover, neither the complainant nor the appellant had any case that for a valid
    marriage among the members of the community to which they belong, this ceremony of
    “saptapadi” was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage
    Act says that a Hindu marriage may be solemnised in accordance with the customary rites and
    ceremonies of either party thereto and where such rites and ceremonies include the saptapadi
    i.e. 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.
21. “Saptapadi” was held to be an essential ceremony for a valid marriage only in cases
    where it was admitted by the parties that as per the form of marriage applicable to them that
    was an essential ceremony. The appellant in the instant case, however, had no such case that
    “saptapadi” was an essential ceremony for a valid marriage as per the personal law applicable
    whereas the provisions contained in Section 7-A are applicable to the parties. In any view of the
    matter, there was a valid marriage on 18-6-1984 between the appellant and the second accused
    Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it
    was done during the subsistence of his earlier marriage held on 6-9-1970. The learned Single
    Judge was right in holding that the appellant committed the offence of bigamy and the matter was
    correctly remanded to the trial court for awarding appropriate sentence. We see no merit in this
    appeal and the same is dismissed accordingl