Comment : This case reflects that the Indian Courts have insisted on requirement of guilty knowledge for prosecution under S.494 for bigamy. In this particular case – the parties were under a bona fide belief of having divorced and lawfully being able to marry again. As a matter of fact their divorce deed was ineffectual under the law. The Husband was acquitted – holding that though S.494 does not expressly require the Mental Element/MENS REA still the purpose of statute won’t be served (test of necessary implication) by excluding requirement of MENS REA. Held not liable for bigamy

Kerala High Court
Sankaran Sukumaran vs Krishnan Saraswathy And Anr. on 2 December, 1983
Equivalent citations: 1984 CriLJ 317
Author: U Bhat
Bench: U Bhat


U.L. Bhat, J.

1. The first respondent herein, claiming to be the legally wedded wife of the revision petitioner (first accused) and alleging that during the subsistence of the marriage revision petitioner married the second accused, which marriage is, but for the first marriage a valid marriage, filed a complaint against both the accused alleging the commission of an offence under Section 494, I.P.C., and Section 114, I. P. C. The accused pleaded not guilty. Prosecution examined four witnesses and marked Ext. P. 1. The defence marked Exts. D1 and D2. The trial Court held that both the marriages have been proved, that the ingredients of the offence under Section 494. I. P. C, have been proved against the first accused and accordingly convicted him thereunder and sentenced him to undergo simple imprisonment for six months. The second accused has been acquitted on the ground that she must have acted under the belief that the first marriage had been dissolved under Ext, D2. While the appellate Court confirmed the conviction against the first accused, the sentence has been reduced to simple imprisonment for one month. The first accused has preferred this revision petition.

2. I have been taken through the evidence in the case. The evidence of the complainant examined as P. W. 1 and the evidence of P. W. 2 in the light of the averments, in Ext. D2. which is admittedly a document entered into between P. W. 1. and the first accused, clearly establish that the first accused lawfully married P.W. 1 in accordance with the customary ceremonies. Admittedly, the parties entered into Ext, D2 divorce deed, The divorce purported to have been effected under Ext.D2 does not have the sanction of law and is therefore not sufficient to put an end to the marital tie. It must follow that in the eye of law the first marriage continued to subsist in spite of Ext. D2. The evidence of P.Ws. 3 and 4 in the light of Ext. P1 and Ext. D1 clearly proves that the first accused entered into customary marriage with the second accused and that was during the subsistence of the first, marriage. The findings entered into by the Courts below in this behalf are not liable to be interfered with.

3. The main contention urged by the learned Counsel for the revision petitioner is that the offence under Section 494, I. P. C, requires mens rea, that is, knowledge of the subsistence of the first marriage and the fact that, the first accused and P. W. 1 entered into Ext. D2 divorce deed would clearly show that the first accused was under the bona fide belief that the marital tie had been severed. If, in these circumstances, he contracted the second marriage, he could not be guilty of the offence and that too because of the absence of mens rea. The answer of the learned Counsel for the first respondent is that Section 494, I. P. C, does not require proof of mens rea and the offence is complete irrespective of knowledge or otherwise of the subsistence of the first marriage. While learned Counsel, for the revision petitioner sought to place reliance on earlier decisions of this Court, according to learned Counsel for the first respondent, the decisions require re-consideration.

4. The Travancore-Cochin High Court had occasion to consider this question in Janaki Amma v. Padmanabhan Nair 1954 Ker LT 977. In that case, the husband in the first marriage filed a petition in the Munsiff’s Court for dissolution of marriage and a final order, was passed dissolving the marriage. Thereafter, he entered into a second marriage. After the second marriage, the first wife filed an appeal in the High Court against the decision of the Munsiffs Court and the order dissolving the marriage was set aside and the case was remanded and ultimately the trial Court dismissed the petition. Sankaran. J., (as he then was) after considering the impact of the decisions in Dolman’s case (1949) 1 All ER 813) and Karim Bakhsh’s case 1918 46 Ind Cas 40 : 1918-19 Cri LJ 680 (Lah) and after analysing the ingredients of the offence under Section 497 Travancore Penal Code (corresponding to Section 494 I. P. C) and the facts of the case, held that there was nothing to suggest that when the second marriage, was entered into, the parties had any fraudulent or dishonest intention or that they had any guilty knowledge that the order of the Munsiffs Court dissolving the marriage was likely to be upset by superior Courts. The Court accepted the plea of the husband that he entered into the second marriage in all good faith and with the honest impression that his earlier marriage with the complainant had been put an end to by Court order, as a valid defence.

5. The earliest decision on the point by this Court is the decision in Kochu Mohmmad Kunju Ismail v. Mohammad Kadeeja Umma 1958 Ker LT 1042 : 1959 Cri LJ 591. The first wife in that case filed a suit for recovery of mahar etc., on the allegation that she had been divorced by her husband. The Court found against the divorce but decreed the suit for value of movables, The husband filed a suit for restitution of conjugal rights. The wife resisted the suit raising the plea of divorce and alternatively on grounds of cruelty. The suit was dismissed on the alternative plea at the same time rejecting the plea of divorce. Thereupon, the wife sent a registered letter to the husband intimating the fact of her having effected divorce ‘fasakh’. The letter was refused. A second and similar letter also was refused. Thereupon, she married again and the first husband filed a complaint alleging commission of an offence under Section 494, I. P. C. It was contended that the divorce effected by the wife was not valid. Overruling this contention, a Division Bench of this Court held that the divorce was valid and therefore the first marriage was not subsisting and an offence under Section 494. I. P. C, had not been made out. Alternatively, it was argued before the Court that mens rea was necessary for an offence under Section 494, I. P. C, and the wife had no mens rea. Of course, this question did not directly arise for consideration in view of the finding that the divorce was valid but nevertheless, the Division Bench proceeded to consider the question. The Court held that in the absence of words in the statute dispensing with proof of mens rea, it must follow that the crime can be committed only with requisite mens rea and if the person charged believed that he was legally free to marry again, it cannot be said that the crime was committed with the requisite mens rea. The Division Bench quoted with approval the observations in Tolson’s case (1889) 23 Q.B.D. 168, Dolman’s case (1949) 1 All ER 813 and Janaki Amma’s case 1954 Ker LT


6. The only other decision of this Court on this point is the one in Ahmed Koya v. Amina Beebi 1972 Ker LT 1069. The husband in that case, it appears, embraced Ahamedeeya faith. The Valia Khasi of Kozhikode issued a publication to the effect that such a marriage would stand dissolved the moment the husband changed his faith. In due course, the wife married again and the first husband filed a complaint. One of the questions which arose for consideration was whether the conversion to Ahamedeeya faith involved a dissolution of the marriage and the Court took the view that it did not. The further question which was considered was whether mens rea was necessary in regard to the offence. Following the decisions mentioned above and dissenting from a decision, of the Madras High Court in re-Arcot Citizen Bank Ltd. v. Arcot , Sadasivan, J., held that mens rea was necessary and where the second marriage was entered into in the bona fide belief that she was doing the right thing as her former marriage was not subsisting, she should be exonerated from liability under Section 494, I. P. C.

7. In Tolson’s case 1889-23 Q.B.D. 168, the wife and her father who made enquiries about the husband came to know from the husband’s elder brother and others that he had been lost in a vessel bound for America that went down with all hands on board. Believing herself to be a widow, she married again and subsequently faced prosecution when the first husband returned to England. The case was stated by Stephen, J., and reserved for consideration of all the Judges. In five separate judgments, the majority held that it was a fit case for reversing the conviction while the minority in three separate judgments opted to sustain the conviction. The provision of law which came up for consideration at the hands of the Queen’s Division Bench was 24 & 25 Vict. c. 100, Section 57, which read as follows:

Whoever, being married, shall marry any other person during the life of the former husband or wife shall be guilty of felony, punishable with penal servitude for not more than seven years or imprisonment with or without hard labour for not more than two years”, with a proviso that “nothing in this Act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years last past, and shall not have been known by such person to be living within that time.

It was undoubtedly a principle of English original law that ordinarily there must be a mind at fault before there can be a crime. That, of course, is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to indicate whether there has been any intention to break the law or otherwise to do wrong or not. It was recognised that there was a long body of municipal law which was so conceived as creating an absolute liability. The interpretation of statute in this behalf depends on the subject-matter of the enactment and the various circumstances that may make one construction or the other reasonable or unreasonable. If the same language could be legitimately construed in two opposite senses, it is obvious that assistance must be sought from other quarters, that is, all circumstances should be taken into consideration. In the circumstances, it was held that there was nothing to prevent the application of what was certainly a normal rule of construction in the case of a statute involving an offence entailing severe and rigorous punishments. Prima facie, the statute was satisfied when the case was brought within its limits and it lay upon the accused to prove that the violation of the law which had taken place had been committed accidentally or innocently so far as he was concerned. Adverting to the proviso, it was held to be not providing the sole excuse for the offence and it specified only one particular case. It was also opined that the proviso had a wider amplitude and adverted to mere absence of the spouses and did not involve a bona fide belief at all. So the proviso did not exclude the defence of bona fide belief. The object of the proviso was not to deny any other defence.

8. The view taken in Tolson’s case 1889-23 QBD 168 was followed in Dolman’s case 1949-1 All ER 813. In that case, the accused pleaded that he believed that the first wife had been previously married and therefore \ his first marriage was invalid. It was held that bigamy like many other offences required that there shall be what is known as guilty mind. There must be an appreciation that crime was being committed, though specific intention was unnecessary. But the accused must have culpable guilty knowledge that he was doing something unlawful. It was open to him to defend himself by showing that he had reasonable cause to believe that he had no first wife living. If under that belief he entered into a second marriage, there would not be guilty knowledge and appreciation of wrong doing. Though the statute did not say “knowingly or unlawfully” the accused did not commit the offence unless he realised, that he was committing such an offence. It would not be an offence if the accused succeeded in proving that the first marriage was really null and void. Equally, if he honestly believed the first marriage to be null and void, it would be a good defence.

9. I am not persuaded to agree that the view taken by this Court in the earlier decisions requires reconsideration. Generally speaking, the offences in the Indian Penal Code involve a degree of mens rea such as intention, knowledge, recklessness or the like. If the particular provision specifically refers to mens rea, the matter is put beyond doubt. Even where the particular provision does not take in any words specifically indicative of mens rea, the scheme of the provision and the words used in the provision might imply the requirement of mens rea. Section 494, I. P. C., makes it clear that the second marriage must he contracted by a person having a husband or wife living. In other words, he must have a spouse and the spouse must he living, that is, the person living must have the status of a spouse. There may be circumstances where a person may have reason to believe and in fact believes that the spouse was no. longer living or that the marriage was not subsisting. To hold that even knowledge would not be required for the offence, would be to punish a person who is really innocent The punishment involved is of a drastic nature namely, imprisonment of either description for a term which may extend to seven years and also fine. There is (nothing in the words used in the provision to contraindicate the necessity of guilty knowledge. It cannot be said that the section postulates an absolute liability as in the case of certain later statutes involving socio-economic offences. The legislature itself contemplated exceptions to the rule. The first exception relates to a case where the first marriage has been declared void by a competent court. ‘ The second exception however, does not relate to a case of a marriage declared to be void or the case of one of the spouses being dead it mentions the case of the continuous absence of a spouse for the space of seven years and not heard of by the person concerned as being alive within that time. Strictly speaking, it is not a case of a person who in law can be presumed to be dead. Nevertheless, the legislature took care to create an exception in that behalf. Thus, this is not a case of law having created an absolute liability. In the nature of the provisions of the section, the punishment involved and the exceptions created, the absence of any words to indicate that guilty knowledge was not required, I respectfully agree with the view taken in the above decisions that guilty knowledge is a necessary ingredient. Of course, in the generality of cases, the facts and circumstances would clearly establish a guilty knowledge. But it is open to the accused to place before the court facts and circumstances from which the absence of guilty knowledge or bona fide belief about non-subsistence of the first marriage could be inferred; and established and in such a case it cannot be said that the offence under Section 494, I. P. C. is made out.

10. Exhibit D2. admittedly, is a divorce deed entered into between the parties. It recites that the parties were residing separately on account of differences between them and they were convinced that it was not possible for them to live together and they resolved to terminate the marital tie and they purported to do so under the document. They further stated that by virtue of this document, each of them would be at liberty to marry again. Divorce by a registered document is not known to law governing the parties. Therefore, in the eye of law Ext. D2 was not sufficient to put, an end to the marital tie. No doubt, ignorance of law is no excuse. But this case involves not merely ignorance of law but a belief on the basis of certain facts and circumstances within the knowledge of the parties. The recitals in Ext. D2 would clearly show that the parties honestly believed that they were no longer husband and wife and that they were at liberty to marry again. In these circumstances, it has to be held, that the first accused, when he contracted the second marriage, acted on the bona fide belief that his marital tie with P. W. 1 had been severed under Ext. D2 and he was at liberty to marry again, and that thereby he was not doing a wrong act. The benefit of doubt in this behalf must certainly go to him.

11. In the result, the conviction and sentence entered against the revision petitioner are set aside. He is acquitted of the charge against him. His bail bonds are cancelled. The revision petition is allowed in this manner.

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