[Matrimonial Offences] Burden Lies Upon Prosecution To Prove First Marriage & Legality Of Second Marriage: MP High Court

The Madhya Pradesh High Court (Indore Bench) has held that in a prosecution for matrimonial offences, the burden of proof lies upon the prosecution to prove the first marriage and also to prove the legality of the second marriage.

With this, the Bench of Justice Anil Verma dismissed an appeal filed by one Kailash challenging the acquittal of the accused persons from the charges under Section 494 and 143 of the Indian Penal Code.

The case in brief

It was the case of the petitioner-Kailash that he had solemnized marriage with one Jani Bai (respondent No.2) as per the Hindu rites and rituals and they lived together as husband and wife.

But thereafter, she performed second marriage with one Gordhan (respondent No.1) with the active help of the other accused persons [respondents No.3 to 5] knowing very well that the first marriage of Jani Bai (respondent No.2) is still in existence and without obtaining a divorce from the appellant.

The trial Court acquitted all the respondents from all the charges, therefore, after obtaining the special leave to appeal, the instant criminal appeal had been filed before the High Court by Kailash (alleged first husband of Jani Bai).

Against this backdrop, the Court was faced with the question as to whether the second marriage entered into by respondent No.2 (Jani Bai) with respondent No.1 (Gordhan) was a valid marriage under Hindu Law so as to constitute an offence under Section 494 of IPC [Marrying again during lifetime of husband or wife].

Court's observations

At the outset, the Court noted that the essential ingredients of the offence under Section 494 of IPC are: (i) the accused must have contracted the first marriage; (ii) she must have married again; (iii) the first marriage must be subsisting and no divorce has taken place; and (iv) the first spouse must be living.

Now, the Court observed that Jani Bai (PW-2) and other respondents had categorically denied her marriage with the appellant in their statements under Section 313 of Cr.P.C. In view of this, the Court opined that the burden was not on the appellant to prove his first marriage with respondent No.2, however, he was unable to discharge that burden.

"Appellant did not examine any independent witness in support of his marriage with the Jani Bai. Even did not produce any relevant documentary evidence for the same purpose. In absence of the material, substantive and independent evidence, the trial Court has rightly held that the appellant has failed to prove the factum of his valid marriage with respondent No.2 Jani Bai as per the Hindu rites and rituals," the Court observed as it upheld the conclusion arrived at by the trial court.

The Court also observed that the appellant had also failed to prove that the alleged second marriage of Jani Bai was solemnized with proper ceremonies in the due form under Section 17 of the Hindu Marriage Act.

Another point which was raised by the appellant and discarded by the Court was - that in her statement under Section 313, the alleged wife of the appellant had admitted that her marriage was solemnized with the Gordhan.

However, noting that such an admission on the part of the accused person cannot amount to confession and relieve the burden of the prosecution to prove the legality of second marriage in the strict form, the Court observed thus:

"In a prosecution for matrimonial offences, the burden of proof lies upon the prosecution to prove the first marriage and also to prove the legality of second marriage. Therefore, reference to the aforesaid admissions on the part of the accused persons / respondents about the said marriage does not in any way advance the cause of the prosecution and on that basis it cannot be held that the first marriage and second marriage were legally performed."

In view of this, the Court came to the conclusion that the complainant/appellant had completely failed to establish the legality of his marriage with respondent No.2 Jani Bai.

Consequently, the Court held that the appellant had failed to prove the charges against the respondents beyond any reasonable doubt, therefore, the trial Court had rightly acquitted the respondents from all the charges.

Case title - Kailash Vs. Gordhan and Others [Criminal Appeal No.958 of 1998]

Citation: 2022 LiveLaw (MP) 173

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