Holding

The second marriage was valid under Section 7‑A of the Hindu Marriage Act, therefore the appellant committed the offence of bigamy under Section 494 IPC.

Summary

The appellant, S. Nagalingam, was first married to Sivagami on 6 September 1970. While that marriage subsisted, he contracted a second marriage with Kasturi on 18 June 1984 in a temple in Tamil Nadu, where garlanding and tying of the thali were performed. The trial court acquitted him, holding that the essential "Saptapadi" ceremony was missing, but the High Court convicted him under Section 494 IPC, relying on the Tamil Nadu amendment, Section 7‑A of the Hindu Marriage Act, which deems such ceremonies sufficient for a valid marriage. The Supreme Court examined the ingredients of bigamy under Section 494 IPC and the applicability of Section 7‑A, noting that the parties were residents of Tamil Nadu and the marriage complied with the amendment’s requirements. It held that "Saptapadi" is not essential unless the parties themselves deem it so, and therefore the second marriage was valid, constituting bigamy. The appeal was dismissed, upholding the conviction.

Issues considered

Whether the second marriage between the appellant and Kasturi was a valid Hindu marriage under the law applicable in Tamil Nadu.
Whether the absence of the "Saptapadi" ceremony renders the second marriage invalid for the purpose of Section 494 IPC.
Whether the elements of the offence of bigamy under Section 494 IPC are satisfied.

Legislation cited

Hindu Marriage Act, 1955s. 17, s. 7, s. 7-A
Indian Penal Code, 1860s. 494

Subjects

bigamySection 494 IPCHindu Marriage ActSection 7-ASaptapadivalidity of marriageTamil Nadu amendmentcriminal appeal

Judgment

A S. NAGALINGAM
v.
SIVAGAMI

AUGUST 31, 2001

B [ D.P. MOHAPATRA AND K.G. BALAKRISHNAN, JJ.]

Penal Code, 1860 :

S.494-Bigamy-!ngredients explained-Husband contracting a second
C marriage during the subsistence of the first marriage-Held, in the/acts of the
case, the husband committed offence of bigamy.

Hindu Marriage Act, 1956 :

S. 7 and S. 7-A (as inserted by Tamil Nadu Amendment)-Marriage-
D 'Saptapadi'-Special provision regarding suyamariyathai and seerthiruththa
marriage in State a/Tamil Nadu-During subsistence offirs/ marriage second
marriage performed by husband in the presence of relatives and friends-
Complainan/ u/s. 494 !PC by the first wife-Magistrate acquitting the husband
holding that second marriage was not a valid marriage as Saptapadi was not
E peiformed-Held, any ofthe ceremonies enumerated ins. 7-A would be sufficient
to complete a valid marriage--Since the parties were residents of Tamil Nadu
and marriage peiformed in the said State in accordance with provisions of
s.7-A, second marriage was a valid marriage and h11Sband committed the
offence of bigamy.

F Respondent No.I filed a complaint under section 494 IPC against her
husband (appellant-accused no.I) and 6 others alleging that during the
subsistence of their marriage the appellant entered into a marriage with
another woman, namely, accused no. 2, on 18.6.1984. The parties, namely the
complainant-respondent no. I, appellant-accused no. I and accused no.2, all
G were residents of State of Tamil Nadu. The Trial Court acquitted the accused
holding that since "Saptapadi" had not been performed, the second marriage
was not a valid marriage and no offence was committed by the accused. On
appeal, the High Court convicted the husband accused. no. I, under section
494 IPC but acquitted the other accused. Aggrieved, the husband filed the
present appeal.
H 454
S. NAGALINGAM v. SJVAGAMI 455
Dismissing the appeal, the Court A
HELD : 1. There was a valid marriage on 18.6.1984 between the
appellant (accused no. 1) and accused no. 2. Therefore, it was proved that
the appellant had committed the offence of bigamy as it was done during the
subsistence of his earlier marriage held on 6.9.1970. [462-C-D]
B
2.1. The essential ingredients of the offence under Section 494 IPC are:
(i) the accused must have contracted the first marriage; (ii) whilst the first
marriage was subsisting, the accused must have contracted a second marriage;
and (iii) both the marriages must be valid in the sense that necessary
ceremonies governing the parties must have been performed. [457-F]
c
2.2. In view ofs.7 of the Hindu Marriage Act, 1956, "Saptapadi" would
be an essential ceremony for a valid marriage only in cases where it was
admitted by the parties that as per the form of marriage applicable to them
that was an essential ceremony. By an amendment made by the State of Tamil
Nadu, Section 7-A has been inserted in the Act and it applies to any marriage D
between two Hindus solemnized in the presence of relatives, friends or other
persons. The main thrust of this provision is that the presence of a priest is
not necessary for the performance of a valid marriage. Parties can enter into
a marriage in the presence of relatives or friends or other persons and each
party to the marriage should declare in the language understood by the parties
that each takes other to be his wife or, as the case may be, her husband and E
the marriage would be completed by a simple ceremony requiring the parties
to the marriage to garland each other or put a ring upon any finger of the
other or tie a thali. Any of these ceremonies would be sufficient to complete
a valid marriage. (462-B; 461-A-B-CI

Kanwal Ram and Ors. v. H.P. Administration, AIR (1966) SC 614, relied F
on.

Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, (1971) l SCC 864;
lingari Obulamma v. L. Venkata Reddy and Ors., [1979] 3 SCC 80; Santi Deb
Benna v. Kanchan Prava Devi, (1991 I Supp. 2 SCC 616 and laxmi Devi v. Satya
Narayan and Ors., [1994) 5 sec 545, referred to. G
2.3. In the instant case, the parties to the second marriage, namely, the
appellant and his alleged second wife, are residents of the State of Tamil Nadu
and their marriage was performed at Thiruthani Temple within the State of
Tamil Nadu. The evidence as given by PW-3, the priest who performed the
marriage, clearly shows that there was a valid marriage in accordance with H
456 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R

A the provisions of Section 7-A of the Hindu Marriage Act. PW-3 also deposed
that he {>erformed the marriage in accordance with the customs app!icable
to the parties; and the bride and the bridegroom exchanged garlands.

Under such circumstances the provisions of Section 7-A are applicable
and there was a valid marriage between the appellant and his second wife.
B Moreover, neither complainant nor the appellant had any case that for a valid
marriage among the members of the community to which they belonged, this
ceremony of "Saptapadi" was an essential one to make it a valid marriage.
1459-G; 461-F-H; 462-A)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
C 882 of 2001.

From the Judgment and Order dated 22.12.2000 of the Madras High
Court in Cr!. A. No. 486 of 1999.

R. Sundravardan and Vipin Nair for Mis. Temple Law Firm for the
D Appellant.

In-person for the Respondent.

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, J. Leave granted.
E
This appeal is directed against the judgment of the learned Single Judge
of the High Court of Madras in Criminal Appeal No. 486 of 1999 reversing
the order of acquittal passed by the Metropolitan Magistrate, Madras. The
learned Single Judge found the appellant guilty of the offence under Section
494 IPC.
F
The appellant, S. Nagalingam married respondent-complainant Sivagami
on 6.9.1970. Three children were born from that wedlock. The respondent
alleged that the appellant started ill-treating her and on many occasions she
was physically tortured. As a result of ill-treatment and severe torture inflicted
by the appellant as well as his mother, she left her marital home and started
G staying with her parents. While so, the respondent came to know that the
appellant had entered into a marriage with another woman on 18.6. 1984, by
name Kasturi, and that the marriage was performed in a Marriage Hall at
Thiruthani. The respondent then filed a criminal complaint before the
Metropolitan Magistrate against the appellant and six others. All the accused
H were acquitted by the trial court. Aggrieved thereby, the respondent filed
S. NAGALINGAM v. SIVAGAMI [K.G. BALAKRISHNAN, J.] 457
criminal appeal No. 67 of 1992 before the High Court of Madras. The learned A
Single Judge, by his judgment dated 1.11.1996 upheld the acquittal of accused
2-7, but as regards the acquittal of the appellant, the matter was remitted to
the trial court permitting the complainant to adduce evidence regarding the
manner in which the marriage was solemnized. Upon remand the Priest [PW-
3], who is alleged to have performed the marriage of the appellant with the
second accused, Kasturi, on 18.6.1984, was further examined and the appellant B
was allowed further cross-examination. The learned Metropolitan Magistrate
by his judgment dated 4.3.1999 acquitted the accused. Aggrieved by the state
judgment, the respondent preferred a criminal appeal before the High Court
of Madras. By the impugned judgment, the learned Single Judge held that the
appellant had committed the offence punishable under Section 494 !PC. This C
is challenged before us.

We heard Mr. R. Sundravardan, learned senior counsel for the appellant.
The respondent Sivagami appeared in person and she filed some documents
in court. Though she was offered the assistance of a counsel, she declined to
avai! herself of that opportunity. D
The short question that arises for our consideration is whether the second
marriage entered into by appellant with the second accused. Kasturi, on
18.6.1984 was a valid marriage under Hindu Law so as to constitute an
offence under Section 494 !PC.
E
The essential ingredients of the offence under Section 494 !PC are (I)
the accused must have contracted the first marriage; (ii) whilst the first marriage
was subsisting, the accused must have contracted a second marriage; and (iii)
both the marriages must be valid in the sense that necessary ceremonies
governing the parties must have been performed.
F
Admittedly, the marriage of the appellant with the respondent, entered
into by them on 6.9.1970, was subsisting at the time of the alleged second
marriage. The Metropolitan Magistrate held that an important ceremony,
namely, "Saptapadi" had not been performed and therefore, the second
marriage was not a valid marriage and no offence was committed by the G
appellant. The learned Single Judge reversing this decision in appeal held
that the parties are governed by Section 7-A of the Hindu Marriage Act as
the parties are Hindus residing within the State of Tamil Nadu. It was held
that there was a valid second marriage and the appellant was guilty of the
offence of bigamy ..
H
458 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A In the complaint filed by the respondent, it was alleged that the appellant
had contracted the second marriage and this marriage was solemnised in
accordance with the Hindu rites on 18.6.1984 at RCC Mandapam, Tiruttani
Devasthanam. To support this contention, PWs 2 & 3 were examined. PW-
3 gave detailed evidence regarding the manner in which the marriage on
18.6.1984 was performed.
B
Learned counsel for the appellant contended that as per the evidence of
PW-3, it is clear that "Saptapadi", an important ritual which forms part of the
marriage ceremony, was not performed and therefore, there was no valid
marriage in accordance with Hindu rites.
c It is undoubtedly true that the second marriage should be proved to be
a valid marriage according to the personal law of the parties, though such
second marriage is void under Section 17 of the Hindu Marriage Act having
been performed when the earlier marriage is subsisting. The validity of the
second marriage is to be proved by the prosecution by satisfactory evidence.
D In Kanwal Ram and Ors. v. H.P. Administration AIR, (1966) SC 614;
this Court held that in a bigamy case, the second marriage is to be proved and
the essential ceremony required for a valid marriage should have been
performed. It was held that mere admission on the part of the accused may
not be sufficient.
E
The question as to whether "Saptapadi", is an essential ritual to be
performed, came up for consideration of this Court in some cases. One of the
earliest decisions of this Court is [ 1971] I SCC 864 Smt. Priya Bala Ghosh
v. Suresh Chandra Ghosh wherein it was held that the second marriage
should be a valid one according to the law applicable to the parties. In that
F case, there was no evidence regarding the performance of the essential
ceremonies, namely. "Datta Homa" and "Saptapadi". In paragraph 25 of the
judgment, it was held that the learned Sessions Judge and the High Court
have categorically found that "Homa" and "Saptapadi" are the essential rites
for a marriage according to the law governing the parties and there is no
G evidence that these two essential ceremonies have been performed when the
respondent is stated to have married Sandhya Rani. It is pertinent to note that
in paragraph 9 of the judgment it is stated that both sides agreed that according
to the law prevalent amongst the parties."Homa" and "Saptapadi" were
essential rites to be performed to constitute a valid marriage. Before this
Court also, the parties on either side agreed that according to the law prevalent
I
H among them, "Homa" and "Saptapaid" were essential rites to be performed
S. NAGALINGAM v. SIVAGAMI [K.G. BALAKRISHNAN, J.) 459
for solemnization of the marriage and there was no specific evidence regarding A
the performance of these two essential caremonies.

[1979] 3 SCC 80 Lingari Obulamma v. l. Venkata Reddy and Ors.,
was a case where the High Court held that two essential ceremonies of a
valid marriage, namely "datta homa" and "sapathapadi" [taking seven steps
around the sacred fire] were not performed and, therefore, the marriage was B
void in the eye of law. This finding was upheld by this Court. The appellant
therein contended that among the "Reddy community in Andhra Pradesh,
there was no such custom of performing "datta homa" and "saptapadi", but
· the High Court held that under the Hindu Law these two ceremonies were
essential to constitute a valid marriage and rejected the plea of the appellant C
on the ground that there was no evidence to prove that any of these two
ceremonies had been performed. The finding of the High Court was upheld
by this Court that there was no evidence to prove a second valid marriage.

In [1991] Supp 2 SCC 616; Santi Deb Berma v. Kanchan Prava Devi
aiso, the appellant was acquitted by this Court as there was no proof of a D
vaiid marriage as the ceremonial "Saptapadi" was not performed. This Court
noticed in this case also that the High Court proceeded on the footing that
according to the parties, perfonnance of "Saptapadi" is one of the essential
ceremonies to constitute a valid marriage.

Another decision on this point is (1994] 5 sec 545; laxmi Devi v. E
Satya Narayan and Ors .. wherein, this Court, relying on an earlier decision
in [1971] l SCC 864 (supra), held that there was no proof that "Saptapadi"
was performed and therefore, there was nQ valid second marriage and that no
offence of bigamy was committed.
F
In the aforesaid decisions rendered by this Court, it has been held that
if the parties to the second marriage perform traditional Hindu form of
marriage. "Saptapadi" and "Datta Homa" are essential ceremonies and without
there being these two ceremonies, there would not be a valid marriage.

In the instant case, the parties to the second marriage, namely the G
appellant. Nagalingam, and his alleged second wife, Kasturi, are residents of
the State of Tamil Nadu and their marriage was performed at Thiruthani
Temple within the State of Tamil Nadu. In the Hindu Marriage Act, 1955,
there is a State Amendment by the State of Tamil Nadu, which has been
inserted as Section 7-A. The relevant portion thereof is as follows:
H
460 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.
A "7-A. Special provision regarding suyamariyathai and seerthiruththa
marriages-(!) This section shall apply to any marriage between any
two Hindus, whether called suyamariyathai marriage or seerthiruththa
marriage or by any other name, solemnized in the presence of relatives
friends or other persons-

B (a) by each party to the marriage declaring in any language understood
by the parties that each takes the other to be his wife or, as the case
may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a
ring upon any finger of the other; or
c (c) by the tying of the thali.

(2) (a) Notwithstanding anything contained in Section 7, but subject
to the other provisions of this Act, all marriages to which this section
applies solemnized after the commencement of the Hindu Marriage
D (Madras Amendment) Act, 1967, shall be good and valid in law.

(b) Notwithstanding anything contained in Section 7 or in any text,
rule or interpretation of Hindu law or any custom or usage as part of
that law in force immediately before the commencement of the Hindu
Marriage (Madras Amendment) Act, 1967, or in any other law in
E force imtnediately before such commencement in any judgment, decree
or order of any court, but subject to sub-section (3), all marriages to
which this section applies solemnized at any time before such
commencement, shall be deemed to have been with effect on and
from the date of the solemhization of each such marriage, respectively,
good and valid in law.
F I
(3) .............. .

(a) ·················
(i) ................ .

G (ii) ............... .

(b) ·················
(c) ................. .

(4) ................... "
H
......
S. NAGAL!NGAM v. SIVAGAMI [K.G. BALAKRISHNAN, J.] 461
Section 7-A applies to any marriage between two Hindus solemnized A
in the presence of relatives, friends or other persons. the main thrust of this
provision is that the presence of a priest is not necessary for the performance
of a valid marriage. Parties can enter into a marriage in the presence of
relatives or friends or other persons and each party to the marriage should
declare in the language understood by the parties that each takes other to be
his wife or, as the case may be, her husband, and the marriage would be
B.
completed by a simple ceremony requiring the parties to the marriage to
garland each other or put a ring upon any finger of the other or tie a thali.
Any of these ceremonies, namely garlanding each other or putting a ring
upon any finger of the other or tying a thali would be sufficient to complete
a valid marriage. Sub-section 2(a) .of Section. 7-A specifically says that C
notwithstanding anything contained in Section 7, all marriages to which this
provision applies and solemnized after the commencement of the Hindu
Marriage (Madras Amendment) Act, 1987 shall be good and valid in law.
Sub-section 2(b) further says that notwithstanding anything contained in
Section 7 or in any text, rule or interpretation of Hindu law or any custom
or usage as part of that law in force immediately before the commencement D
of the Hindu Marriage (Madras Amendment) Act I 967, or in any other law
in force immediately before such commencement or in any judgment, decree
or order of any court, all marriages to which this section applies solemnized
at any time before such commencement, shall be deemed to have been valid.
The only inhibition provided is that this marriage shall be subject to Sub- E
Section (3) of Section 7-A. We need not elaborately consider the scope of
Section 7-A(3) as that is not relevant for our purpose.

The evidence in this case as given by PW-3 clearly shows that there
was a valid marriage in accordance with the provisions of Section 7-A of the
Hindu Marriage Act. PW-3 deposed that the bridegroom brought the F
"Thirumangalam" and tied it around the neck of the bride and thereafter the
bride and the bridegroom exchanged garlands three times and the father of
the bride stated that he was giving his daughter to "Kanniyathan" on behalf
of and in the witness of"Agnidevi" and the father of the bridegroom received
and accepted the "Kanniyathan". PW-3 also deposed that he performed the G
marriage in accordance with the customs applicable to the parties.

Under such circumstances, the provisions of Section 7-A, namely, the
State Amendment inserted in the Statute are applicable and there was a valid
marriage between the appellant and Kasturi. Moreover, neither complainant
nor the appellant had any case that for a valid marriage among the members H
462 SUPREME COURT REPORTS [2001] SUPP. 2S.C.R.
A of the community to which they belong, this ceremony of "Saptapadi" was
an essential one to make it a valid marriage. Section 7 of the Hindu Marriage
Act says that a Hindu marriage may be solemnized in accordance with the
customary rites and ceremonies of either party thereto and where such rites
and ceremonies include the Saptapadi, i.e. the taking of seven steps by the
B bridegroom and the bride jointly before the sacred fire the marriage becomes
complete and binding when the seventh step is taken.

"Saptapadi" was held to be an essential ceremony for a valid marriage
only in cases it was admitted by the parties that as per the form of marriage
applicable to them that was an essential ceremony. The appellant in the
C instant case, however, had no such case that "Saptapadi" was an essential
ceremony for a valid marriage as per the personai law applicable whereas the
provisions contained in Section 7-A are applicable to the parties. In any view
of the matter, there was a valid marriage on 18.6.1984 between the appellant
and the second accused, Kasturi. Therefore, it was proved that the appellant
had committed the offence of bigamy as it was done during the subsistence
D of his earlier marriage held on 6.9.1970.
The learned Single Judge was right in holding that the appellant
committed the offence of bigamy and the matter was correctly remanded to
the trial court for awarding appropriate sentence. We see no merit in this
E appeal and the same is dismissed accordingly.
R.P. Appeal dismissed.