In a prosecution for matrimonial offences, the burden of proof lies upon the prosecution to prove the first marriage and also to prove the legality of second marriage: HIGH COURT OF MADHYA PRADESH AT INDORE

This appeal is hereby dismissed by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of KAILASH V. GORDHAN through HON’BLE JUSTICE ANIL VERMA

In this case, the marriage of the appellant Kailash was solemnized with the respondent No.2 Jani Bai as per the Hindu rites and rituals and they lived together as husband and wife. But thereafter, the respondent No.2 Jani Bai got second marriage with the respondent No.1 Gordhan with the active help of the other accused persons / respondents No.3 to 5 knowing very well that first marriage of the Jani Bai is still in existence and without obtaining divorce from the appellant, respondent No.1 had performed the second marriage with the respondent No.1. Jani Bai in her statement recorded under Section 313 of Cr.P.C. has categorically denied her marriage with the appellant. Other respondents have also denied the same fact in their statements under Section 313 of Cr.P.C., therefore, burden of proof to prove first marriage of the appellant with the respondent No.2 lies upon the appellant. The father of the Jani Bai, Gopal took Jani Bai at his home for celebrating the festival of Rakhi but after that Jani Bai did not come back. The appellant Kailash categorically stated in his statement that his relationship with his wife Jani Bai is still continuing, despite Jani Bai has contacted second marriage with respondent No.1 Gordhan. At that time Babu and Govind threatened all the persons by showing guns that if anybody tried to restrain the marriage of Jani Bai, they will kill them, other respondents were also present there. Balchand also deposed in the same manner and further stated that Jani Bai is still living with the respondent No.1 Gordhan as his wife.

In this case, Trial Court has rightly observed that appellant and respondent No.2 Jani Bai and respondent No.1 Gordhan belongs to the Hindu religion, therefore, Saptpadi are essential rites for their marriage according to the law governing the parties, but there is no evidence that all the essentials have been performed when the respondent No.2 Jani Bai was remarrying with respondent No.1 Gordhan. Therefore, the appellant has failed to prove that alleged second marriage of Jani Bai was solemnized with proper ceremonies in a due form under Section 17 of the Hindu Marriage Act. The trial Court has rightly held that on the basis of the evidence that complainant / appellant completely failed to establish legality of his marriage with the respondent No.2 Jani Bai. That being so, the trial Court has also rightly held that no evidence is available against the respondent No.2, which establish that the respondent No.2 Jani Bai is the wife of the appellant Kailash. The trial Court has also held that even the marriage of respondent No.2 with respondent No.1 has also not been legally proved.
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