The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 73 of 2012 --- Dr. Usha Suwalka ..... Petitioner 1. The State of Jharkhand 2. Dr. Bansilal Suwalka Versus --- ...... Opp. Parties.
Legal Reasoning
On perusal of the impugned judgment, we find that the same ground was taken by the petitioner before the learned court below. On thorough discussion and consideration of facts, evidence and legal provisions; learned court below has held that even Exhibits 1 and 2 & 2/1 were not proved in accordance with the provisions of Sections 65 and 66 of the Evidence Act. He has further held that the said documents are not admissible for proving the factum of marriage between Vandana Saxena and the opposite party No. 2. Learned court below has further held that the parties are admittedly Hindus and for valid marriage of a Hindu, ritual of Saptapadi is sine qua non, but the complainant has miserably failed to prove that there was any such rituals. The learned court below in support of its findings also relied upon the judgment of the Hon'ble Supreme Court in the case of Bhau Rao Shankar Lokhandey Vs. State of Maharashtra [AIR 1965 SC 1564] and in Kanwal Ram Vs. The Himachal Pradesh Administration [AIR 1966 SC 614]. The findings of the learned court below are based on proper appreciation of facts, evidences and principles of law. We find no ground made out for granting special leave to prefer appeal against the judgment dated 19.11.2011 passed in C-277/88 (TR. No.1223/2011), by learned Judicial Magistrate, Ist Class, Ranchi. This petition is, accordingly, dismissed. Anu-Saket/- (Narendra Nath Tiwari, J.) (P.P. Bhatt, J.)
Arguments
CORAM: HON'BLE MR. JUSTICE NARENDRA NATH TIWARI HON’BLE MR. JUSTICE P.P.BHATT For the Petitioners : M/s Chandrajit Mukherjee, Arvind Kumar, Advs. : M/s. S.P. Jha, Advocate. For the State - -- 07/20.08.2013 In this petition, the petitioner has prayed for special leave of this Court to prefer appeal against the judgment dated 19.11.2011 passed in C-277/88 (TR. No. 1223/11) by learned Judicial Magistrate, 1st Class, Ranchi, whereby, Opp. Party No. 2 has been acquitted of the charge under Section 494 of the Indian Penal Code. The case was initiated on the basis of the complaint of the petitioner wherein, she had claimed that she was married to opposite party No. 2, on 29.6.1981, at Chaibasa, according to Hindu rites and rituals. After the marriage, when she went to live with her husband at Jaipur, she found a hostile environment in the family of the opposite party. They started demanding more dowry. In the meanwhile, she came to learn that opposite party No.2 had relationship with another woman, namely, Vandana Saxena. Subsequently, the opposite party No.2 shifted to Jamnagar alongwith Vandana Saxena, two daughters were also born out of their wedlock. The petitioner objected to the said marriage. In reaction the opposite party No.2 assaulted and threw her out of the house on 22.10.1988. The opposite party No.2, thereafter, filed a suit seeking decree for divorce, being Suit No.34 of 1986 before the learned District Judge, Udaipur, but the same was dismissed. The charge was framed against the opposite party No. 2 under Section 494 IPC on the basis of the solemn affirmation of the complainant and two documents. The opposite party No.2 pleaded not guilty. The trial proceeded and four complainant's witnesses were examined. Three documents, one electoral roll (Exhibit-1) and two birth certificates of i.e. of Sambhawana and Samvedana issued by the Public Health Department (Exhibit-2 and 2/1) were also brought as evidence. -2- Learned Trial Court after thorough discussion and consideration of the evidences and materials on record held that the complainant failed to establish the charge against the opposite party No. 2. Learned court below observed that the complainant tried to prove the factum of the second marriage of opposite party No.2 by relying upon exhibits-1, 2 and 2/1, but those documents are not original and have not been proved in accordance with law. The provision of Sections 65 and 66 of the Evidence Act were not complied with and the contents of the document are not admissible in evidence. It is further stated that the electoral roll, Exhibit-1, has no relevance for proving the factum of marriage. It is like a hearsay evidence and not acceptable as in evidence to prove. Learned court below has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Bhau Rao Shankar Lokhandey Vs. State of Maharashtra, reported [AIR 1965 SC 1564], in support of his finding wherein it has been held that in a case of bigamy, the second marriage must be proved by the evidence of performance of the essential ceremonies of the marriage. Learned court below has also relied upon other judicial pronouncements and held that the parties are 'Hindus' and for valid marriage of a 'Hindu', the rituals of Saptapadi has to be proved. Learned court below in its detailed judgment has considered all the factual and legal aspects and has concluded that the charge against the opposite party No.2 could not be established beyond of all reasonable doubts and acquitted the opposite party No.2 of the said charge. The petitioner has sought special leave to challenge the said judgment by filing appeal mainly on the ground that the learned court below has committed serious error in holding the documents, Exhibits-1, 2 and 2/1, not admissible for proving the factum of marriage of the opposite party No. 2 with Vandana Saxena. It has been submitted that the electoral roll, Exhibit-1, clearly mentions that the opposite party No.2 is the husband of Vandana Saxena, whereas the birth certificates of two daughters, Exhibits 2 and 2/1 clearly show the names of Vandana Saxena and the opposite Party No.2 as their parents. The said two documents are, thus, sufficient to prove the factum of valid marriage between the opposite party No.2 and Vandana Saxena and are sufficient to establish the charge of bigamy against the opposite party No. 2 . -3-