cpc

bigamy- u/s 494, 498, 323


I am law student. recently came accross a family case with following facts-

1- A lady filed a case against her husband of being bigamy- u/s 494, other chanrges are- 498 and 323.

2- Her husband denied charges and plead innocence and says falsely implicated.

3- only witness from lady side who was present in second marriege ceremony when he was 10 years old.

4- There is no picture /video recording of second marriege . Lady has proof of birth of child from her husband and 2nd wife.

Now question is- 

1- To win the case how lady shall proceed?

2- What else proofs would be sufficient keeping mind of facts (above)

3- How strong and affective is witness of a person who was 10 years at the time of 2nd marriage ceremony in the eye of law?

Thanks.

Rajiv Singh

 

 
Reply   
 
Advocate

 

For bigamy criminal complaint proof of both marriages not only second marriage ceremonies according to the customary rites and procedures have to be proved, what are these will depend, the photographs/video recordings, marriage registrations, eye witnesses to marriage ceremonies, statement of the priest performing the marriages are few of the relevant admissible evidence in the court.


Total likes : 2 times

 
Reply   
 



Thank @Renuka and @Vijay ji for guidance.

@Renuka Ji - 1st marriage was not child marriage. As case is old case still pending in the court. All eye witnesses of 2nd marriage are either died because of old age or avoid to appear in this case.

1- There is no question on 1st marriage as accused accepted 1st marriage as leagl and with as per hindu marriage Act.

2- Only eye witness of 2nd marriage . who is mature now, was 10 years old.

3- Priest and kanyadanam performer of 2nd marriage are died now.

4- how effective is voter id and other official details of 2nd lady as evidence who shows man as her husband in this case?

Kindly enlight me with your eminence  guidelines.

Regards,

Rajiv Singh

 
Reply   
 
advocate

At the time of second marriage, the witness was 10 years old, but competent enough to give deposition right now.  So, if he is capable of vividly remember the occurence of marriage and details of marriage to some extent, then the court will rely on his evidence.  But, by competent witness, the factum that the purohit and the so-called kanyadanam performer are no more has to be brought on record to give muscle to the case.  If there are some other people who were present but are not willing to give evidence, can be summoned through court notice and once they come to the court and take oath, start to parrot the truth.  Voter ID and official documents are also play a significant role to prove the factum of marriage and also the deposition of neighbours that both are living like husband and wife and the DNA of the child from second marriage  are further to bolster the case.

 
Reply   
 

Thanks @Prabhakar. This reply is very precise.

Now adding to one more fact to the case- If the 1st wife dies during proceedings as legal system is too slow, who will fight case on her absent. If it is necessary to prepare a power of attorney from her side?

2- Tell me as many of witnesses are died so if new witnesses (10 years boy eye witness at the time of 2nd marriage, now mature ) and new evidences could be attached during trial?

Regards,

Rajiv Singh

 

 
Reply   
 
advocate

1.

(c) Where the person aggrieved by an offence punishable under 1[section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's, brother or sister 2[, or, with the leave of the court, by any other person related to her by blood, marriage or adoption].

 2. Yes.

 


Total likes : 1 times

 
Reply   
 
Advocate

Let me again tell you, to make the criminal cases relating to bigamy definitely requires the proof of both marriages, even if first or second or both marriages have been admitted by accused that will not be sufficient enough to hold him guilty under section 494,495 IPC.

Secondly proof like voter's card, ration card, official records, living together evidence by neighbors or DNA report of child born out of such union does not prove the marriage ceremony, for birth of child one doesn't have to marry, nor for living together or declaring oneself married to the other person, these will not prove the actual marriage ceremonies which court will like to see and come to conclusion of actual marriage between two persons.

When I state proof of both marriages I mean proof of marriage ceremonies in both cases, a child of 10 years will not even be aware what are the essential marriage ceremonies required for valid marriage and in this case how can you expect the child to state the same in the court, even are you yourself aware of the essential marriage ceremonies in the two marriages in question? Most of the people confuse between Saptapadi and Phera, rather most call it taking seven steps around the sacred fire which wrong, it is taking seven steps, each step representing one vow chanting by the priest along the sacred fire not around the fire like Pheras. Likewise there are number of essential ceremonies in Vedic or Sanatni Hindu marriage, essential ceremonies in Northern part of India may be different in Souther part of India for Hindus, likewise the Muslims, Parsis, Jews and Christians have their essential ceremonies for marriage.

Witnesses who understand these ceremonies and who have actual witnessed these ceremonies can stand as competent witnesses, when you take a witnesses to make as prosecution witness in bigamy criminal proceedings you need to completely tutor him otherwise defense counsel in cross examination will get truth out of the witness that he attended only the wedding reception but did not witness the essential marriage ceremonies which took place in his absence.


Total likes : 1 times

 
Reply   
 
Worker

child marriage ??

 
Reply   
 

Thanks Prabhakar and Vijay for precise input.

Tell me if evidance(s) could also freshly submitted in high court and supreme Court during trial.

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

  Search Forum








×

Menu

IPC Grand Course     |    x