The appeal by Smt. Dhara Dei against the acquittal of Prafulla Swain and his father under sections 494 and 494/109 IPC was dismissed as the court found insufficient evidence to prove the validity of the alleged second marriage. The trial court's conclusion that the prosecution failed to establish the charges of adultery and abetment was upheld, affirming the order of acquittal. The appeal was dismissed based on the lack of credible evidence from the appellant's witnesses regarding the occurrence and legality of the second marriage.

1. CRPC CASE ANALYSIS
Orissa High Court
Smt. Dhara Dei vs Prafulla Swain And Ors. on 29 June, 1984
Equivalent citations: 1984 II OLR 621
Abhinandan Ray
BBA LLB, 6TH SEMESTER
SOA NATIONAL INSTITUTE OF LAW

2. FACTS
• . This appeal is directed against the order passed by the
Judicial Magistrate, Baramba, acquitting respondents 1
(Prafulla swain) and 3 (his father) from charges under Section
494 and 494/109 I. P. C. respectively.
• The complainant is the appellant (Smt. Dhara Dei).
• Stated in brief the case of the appellant, Dhara Dei (P. W. 1),
was that she was legally married to respondent No. 1, Prafulla
Swain.
• There was misunderstanding between her father (P.W. 2) and
father-in-law, respondent No. 3 relating to dowry at the time of
her marriage. She came to the house of her father according to
custom, but on account of the aforesaid misunderstanding, she
was not taken back to her matrimonial home.

3. Cont…
• On the other hand, on 3. 12. 1979, respondent No. 1, Prafulla again married
respondent No 2, Tava Dei daughter of Mana Naik of Salijanga. During the
subsistence of her marriage with respondent No. 1, Prafulla, the second
marriage having been contracted was void according to law. Respondents 1 and
2, therefore, committed an offence under Section 494 and respondent No. 3
having abeted the same, committed an offence under Section 494/109 of the
I.P.C.
• The learned trial Court framed charge against respondent No. 1 under Section
494 and further framed charge against respondent No. 3 under Section 494/109
of the I. P. C.
• On account of absence of respondent No. 2 the case was split up against her.
• The plea of the respondents 1 and 3 was a complete denial of the charges
brought against them.
• On consideration of the prosecution evidence the learned trial Court came to
hold that the appellant failed to establish the factum of the second marriage
between respondents 1 and 2. Therefore, be recorded an order of acquittal.

4. • Learned counsel appearing for the appellant urged that the learned Judicial
Magistrate failed to appreciate the evidence adduced by the appellant in a
sound manner and so he arrived at the erroneous conclusion to the effect
that the second marriage between respondents 1 and 2 could not be
established.
• On the other hand, there is ample evidence, both oral and documentary, to
establish the factum of the second marriage between them beyond
reasonable doubt. Learned counsel for the respondents on the other hand
urged that appreciation of evidence by the learned Court below was proper
and having regard to the weak and incredible nature of the prosecution
evidence he came to the correct conclusion to hold that the factum of the
second marriage between respondents 1 and 2 had not been established, He
further urged that in the facts and circumstances of the case, this Court
should loathe to interfere with the order of acquittal. The contentions
require careful examination.

5. • The appellant examined in all six witnesses in order to establish her case.
She (P. W. 1) stated in her evidence that she was legally married to
respondent No 1, Prafulla, and lived in the house of her father-in-law for
more than a year. This fact, however, is admitted on both sides. She was
obviously not present when the alleged marriage between respondent No.
1, Prafulla, and respondent No. 2, Tava Dei was performed on 3. 12. 1979,
in so far as she was living in the house of her father (P. W. 2) at a distance
of about 20 kilo-metres. P. W. 2, father of the appellant was also not an eye-
witness to the alleged marriage between respondents 1 and 2. He stated in
his evidence that he heard that respondent No. 1, Prafulla, married
respondent No. 2, Tava Dei, daughter of Mana Naik of Salijanga.
Obviously, therefore, he could not speak about the date and month of the
aforesaid marriage as well as the performance of religious ceremonies
during solemnisation of the marriage. P. W. 4 admitted in his evidence that
he did not see the alleged marriage between respondents 1 and 2.

6. • Therefore, he also could not speak about the performance of the
ceremonies at the time of the marriage. He admitted that he heard about the
marriage. P. W. 5 stated in his evidence that in the month of Margasira
about two years ago respondent No. 1, Prafulla, married the daughter of
one Mana Naik. He had come to the Durga temple r.t Baudala where he
saw that there was exchange of flowers between the couple. He also saw
both of them sitting in a car. When asked about the performance of
religious ceremony at the time of marriage and the parsons who took part in
the said ceremony, estated that he could not give the names of the priest as
well as the barber.
• Homa Saptapadi and Hastagranthi were not performed. His evidence will
show that he departed from the substratum of the prosecution case which
was to the effect that the alleged marriage was performed at Salijanga in
the house of Mana Naik. Simply because he saw respondents 1 and 2 in a
car, it will not give rise to the inference for drawing a conclusion that they
had been married according to law. P. W. 6 stated that he saw respondents 1
and 2 sitting inside a car at a road crossing near village Bindhanima.

7. • He did not speak about performance of the marriage between respondents 1 and His evidence suffers from the same defect as that of P.
W. 5.
• In A. I. R. 1965 Supreme Court, 1564, Bhaurao Shankar Lokhande and Anr. v. The
State of Maharastra and Anr., arising out of a case under Section 494 of the I. P. C.
it was held ;
• "(3) Section 494, I. P. C. reads :
• "Whoever, having a husband or wife living, marries in any case in which such
marriage is void by reason of its taking place during the life of such husband or
wife, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine."
• Prima facie, the expression 'whoever marries' 'must mean 'whoever.....marries
validly' or whoever marries and whose marriage is a valid one.' If the marriage is
not a valid one, according to the law applicable to the parties, no question of its
being void by reason of its taking place during the life of the husband or wife of the
person marrying arises. If the marriage is not a valid marriage, it is no marriage in
the eye of law. The bare fact of a man and a woman living as husband and wife
docs not, at any rate, normally give them the status of husband and wife even
though they may hold themselves out before society as husband and wife and the
society treats them as husband and wife."

8. • The word 'solemnise' means, in connection with a marriage, 'to
celebrate the marriage with proper ceremonies and in due
form', according to the Shorter Oxford Dictionary. It follows,
therefore, that unless the marriage is 'celebrated' or performed
with proper ceremonies and due form it cannot be said to be
'solemnised'. It is, therefore, essential, for the purpose of S. 17
of the Act, that the marriage to which S. 494, I. P. C. applies on
account of the provisions of the Act, should have been
celebrated with proper ceremonies and in due form. Merely
going through certain ceremonies with the intention that the
parties be taken to be married, will not make the ceremonies
prescribed by law or approved by any established custom."

9. Judgment
• For the foregoing reasons, I agree with the
conclusion arrived at by the trial Court that the
prosecution failed to establish the charges of
adultery and abetment thereof against
respondents 1 and 3. The order of acquittal is,
therefore, affirmed. The appeal is dismissed.