JUDGMENT Hari Swarup, J.
1. This appeal has been filed by the complainant against the acquittal of the respondents Ramji Lal, Ramji La1 and Smt, Shanti Devi. Complaint had been filed by Smt. Sindhiya Devi against her husband Ramji Lal under Section 494, I.P.C. and against the mother of Ramji Lal, Smt. Shanti Devi, and his father, Kunji Lal under Section 404/109, I.P.C. Complaint was also made against three more persons, but as their attendance could not be secured the case proceeded only against respondents Ramji Lal, Kunji Lal and Shanti Devi.
2. The case of the prosecution was that Smt. Sindhiya Devi had been married to Ramji Lal and while the marriage was subsisting Ramji Lal married Smt. Shivarari on 20.6.67. Kunji Lal and Smt. Shanti Devi were said to have abetted the second marriage.
3. The trial court held that the prosecution had failed to establish the second marriage and thus acquitted all the accused. Against that acquittal this appeal has now been preferred.
4. Smt. Sindhiya Devi has established her marriage with Ramji Lal. Her testimony about the second marriage is not on the basis of personal knowledge and is thus of no value. Besides her, the prosecution has examined Pt, Rameshwar Dayal who had performed the marriage as the Purohit, and Bed Ram and Ram Babu who had witnessed the marriage. Pt. Rameshwar Dayal has stated that the father and brother of Shiva Rani had performed the Kanyadan. He has further stated that 'Bhanwar' had taken place in the Sehan of the house of Ramji Lal. between 1 and 4 a.m. in the night, that he bad conducted the marriage, and that Shiva Rani bad been brought into the house of Ramji Lal in a Dola three days before the marriage. P.W. 3, Bed Ram, whose house is just in front of the house of Ramji Lal, has also stated that the Dola was brought three days before the marriage. He has asserted that he was present when the 'Bhanwar' had taken place. P.W. 4 Ram Babu is a relation of Smt. Shiva Rani. He has asserted that the Dola of the girl bad come to the home of Ramji Lal in his prefence and that Bhanwar had taken place in his presence. The evidence of all these witnesses is consistent on the point that the marriage had been performed and Bhanwar bad taken place, Pt. Rameshwar Dayal and Bed Ram have also stated that immediately after the marriage they had informed the father of Sindhiya Devi.
5. D. W. 1 Ram Swamp has only stated that he had not seen any other woman in the house of Ramji Lal and that if second marriage had been performed, he would have come to know of it because he is a close neighbour of Ramji Lal. He has admitted however that he belongs to a different caste. He has given no specific reason as to why he should have been informed of the second marriage. He has admitted that he did not receive any summons but was brought by Ramji Lal. He has also admitted that he was ill for many years and therefore did not attend marriages. Further, Ram Swarup does not appear to be an independent witness. He is admitted to have taken a loan from the father of Sindhiya Devi, viz. Arjun Lal, C. W. 1. Arjun Lal had stated that Ram Swarup borean ill will against him because Rs. 300 were still due against Ram Swarup. Arjun Lal has also filed the promissory note which had been executed by Ram Swarup. In these circumstances it is not possible to place any reliance on Earn Swarup. D. W. 2 Ishwar Das asserted that his house was near that of the accused and it was wrong that Ramji Lal had entered into a second marriage. He also does not belong to the same caste as Ramji Lal. He has not been able to give the names of persons who live in houses adjoining the house of Ramji Lal. He has however admitted that the house of witness Bed Ram is just opposite that of Ramji Lal. The evidence of Ishwar Das is not of any value to demolish the case of the prosecution.
6. The question arises whether the evidence given by the prosecution witness is sufficient to prove the marriage of Ramji Lal with Shiv Rani.
7. Learned Counsel for the accused placed reliance on the case of "Bhaurao v. State of Maharashtra" . It was emphasised in that case that marriage has to be a valid marriage which can take place only according to the law applicable to the parties. In that case, however, it was not disputed that two essentials of marriage were not performed when the two parties were said to have married. Learned Counsel also placed reliance on the decision. in "Kanwal Ram v, Himachal Pradesh Administration . In that case also the Court hed found that the essential ceremonies had not beers performed. Neither of these two cases is applicable to the facts of the present case. Learned Counsel also relied on "Priya Bala Ghosh v. Suresh Chandra Ghosh" . In that case there was only the evidence of the priest who stated nothing more than that the marriage was solemnised according to Hindu rites. On this much of evidence the Court held that the marriage had not been proved for the purposes of Section 494, I. P. C.
8. The trial court has placed reliance and the learned Counsel for the appellant has also referred to two decisions of this Court, one reported in Syed Mohammad Hasan v. Hatiz Abdul Naeem 1965 All Cri R 129 : (1965) 2 Cri L J 138 and the other in Smt. Munni Devi v. State through Smt. Ram Kali (1969) All Cri Rule 188. In the case of Syed Mohammad Hasan this Court had laid down that ''in order to succeed in a prosecution for an offence under Section 469, I. P. C., the prosecution must prove the bigamous marriage satisfactorily. Even if the wife was actually living in sin without a lawful marriage with the co-accused, this would not be a sufficient ground for a criminal prose, caution under Section 494, I. P. C., although it may afford grounds for other proceedings." This only lays down the general principle that marriage must he specifically proved. The case of Smt. Munni Devi is quite distinguishable. In that case the only evidence led was to the effect that "Bhanwaren pari thee." This evidence was not regarded as sufficient to prove a valid marriage.
9. In the present case it is not only the evidence of "bhanwars", but also other evidenee of marriage, both direct and circumstantial which clearly establishes the faotum of the second marriage. The evidence is that 'Dola' was brought, marriage was performed by Purohit, 'Bhanwaren' had taken place and Kanyadan' was done. It is also in evidence that full 'vivah' was read and it had taken a few hours. The witness who acted as the pucobit at the marriages has withstood the test of cross-examination and has stated about performance of marriage, the undergoing of bhanwars by the bride and the bridegroom, and the girl's father's making the "Kanyadan". According to Mulla's Hindu Law (13th Ed., page 472, para. 437), there are two ceremonies essential to the validity of a Hindu marriage, viz. (1) invocation before the sacred fire and (2) Saptapadi, i.e. taking of seven steps by the couple jointly before the sacred fire. According to Section 7 of the Hindu Marriage Act:
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonics of either party thereto. (2) Where such rites and ceremonies include the Saptapadi; (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
10. Saptapad is also known as Bhanwar. According to the New Royal Hindi English Dictionary, " Bhanwar" means "Vivah ke samey ki pheri; an act of circumambulation of the bride and bridegroom round the fire at the time of there marriage ceremony". The evidence is that Bhanwars ware performed. There is no cross-examination to suggest that seven Bhanwars had not been performed. Bhanwaren or Saptapadi are performed only after the invecation of sacred fire and the evidence that Bhanwars had taken place must mean that sacred fire had been invoked and Saptapadi hid been performed. 'Kanyadan" takes place only after the Saptapadi; the evidence of Kanyadan farther proves that all the caremonies necessary for marriage had been parformad.
11. Section 494, I. P. C, provides: ''Whoever, having a husband or wife living, marries is 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 deseription for a term which may extend to seven years, and shall also be liable to fine." The purpose of this provision is to punish a person who accepts another spouse while his first spouse is still living. It is an offenae against the married wife or husband, as by the second marriage the accused ignores the first marriage, openly denies its existence and takes a second partner.
12. The test for purposes of Section 494, I. P. C., is: Will the union through the alleged marriage constitute a valid marriage if the other spouse were not living. This can be detsrmined by applying the test: Will the wife, if the former wife were not living, be entitled to claim maintenance as a married wife and will the children born of the union be deemed born in or out of wedlock? If these be the true tests, as they must be because Section 494, I. P. C, constitutes an effence against marriage, then it may be open to the Court, even when considering the factum of marriage for purposes of Section 491, I. P. C., to draw on presumption of necessary ceremonies being undergone on the factum of marriage being established.
13. It was held in the case of Mouji Lal v. Chandrabati Kumari (1911) I L R 38 Cal 700 that "the established presumption in favour of the marriage applied to the forma and ceremonies necessary to constitute it a valid marriage, " This case was followed by the Supreme Court in Veerappa v. Michasl . Therein it was ob-served:
Further where it is proved that the marriage was performed in fact the Court will also presume that the necessary care, monies have been performed.
14. In this case as there is sufficient evidence to establish that ceremonies necersary for solemnization of marriage had been gone through, it is not necessary to resort to the presumption that all the ceremonies of marriage had been performed, though the facts exist even for drawing the necessary presumption of marriage being soleminsed according to law.
15. Section 17 of the Hindu Marriage Act provides:
Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions of sections 494 and 495 of the Indian Penal Code (Act XLV of 1860) shall apply accordingly.
The facts established in the present case prove beyond reasonable doubt that Ramji Lal had entered into a second marriage with Ku. Shiv Rani while his first wife Sm. Sindhiya Devi was alive. The case will, thus be covered by section 494, I.P.C. and the respondent will be guilty of marrying again.
16. So far as the other two accused are concerned, the evidence is only to the effect that Kunji Lal and Smt. Shanti Devi got the marriage performed. As they lived along with Ramji Lal they might have been present at the marriage. Abetment had been defined in Section 107, I.P.C. as under:
A person abets the doing of a thing, who First:-- Instigates any person to do that thing or Secondly; Engages with one or more other person or rersons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly:--Intentionally aids, by any act or illegal omission, the doing of that thing.
The evidence falls short of proving that they had abetted the offence.
17. Appeal against Ramji Lal is accordingly allowed and he is convicted of the offence under Section 494, I.P.C. The appeal against Kunji Lal and Smt. Shanti Devi is dismissed.
18. The question then arises as to whether the applicant be sent to jail or be released on probation of good conduct.
19. Respondent Ramji Lal appeared in this Court and made a statement that he is prepared to keep Smt. Sindhiya Devi with him as his wife. He has also stated that Smt Shivarani will not live in that house with him. Only Smt. Shindhiya will live with him. He has also undertaken not to do in future any ant which might injure the relations between him and his wife or which might amount to en offence under law. The age of Ramji Lal as given in his statement in court below was 22 years. Therefore, considering his age and his undertaking to keep his wife with him it would not be appropriate to send him immediately to jail. The proper thing will be give him an opportunity of becoming a better citizen. This is a fit case in which he should be released on probation for a period of one year.
20. Section 360 of the Code of Criminal Procedure does not define as to what the term: "good behaviour" signifies. It is thus left to the Court to determine what good behaviour in a particular case should be for a citizen when he is released on probation.
21. The words: "to keep the peace and be of good behaviour" used in sub-Section (1) of Section 360, Criminal Procedure Code will certainly imply different concepts relatablae to different situations. "Keeping the peace" will of course mean that peace of the society be not disturbed through any set of the accused, that is, he should commit no offence. Being of good behaviour has wider implications. It means not only the behaviour of a person who does not commit breach of law, but the behaviour of a citizen who is a credit to the society. It contemplates a positive good behaviour, and may imply the undoing of what he did for which he was brought before the court to receive the sentence. In specific cases it may even be necessary for the court to specify the conduct which will be implied in ''the good behaviour" which the man on probation may have to carry out.
22. To ensure that the convicted person who is placed on probation leads a life of "good behaviour, " certain conditions may be imposed on his conduct. In Section 301 of the Model Penal Code prepared by the American Law Institute, the condition which a court might impose on the defendant were given as;
(a) to meet his family responsibilities;
(b) to devote himself to a specific employment or occupation;
(c) to undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose;
(d) to pursue a prescribed secular course of study or vocational training;
(e) to attend or reside in a facility established for the instruction, recreation or residence of persons on probation;
(f) to refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;
(g) to have in his possession no firearm or other dangerous weapon unless granted written permission;
(h) to make restitution of the fruits of his crime or to make reparation, in an amount he can afford to pay, for the loss or damage cauaed thereby;
(i) to remain within the jurisdiction of the court and to notify the Court or the probation officer of any change in his address or his employment;
(j) to report as directed to the Court or the probation officer and to permit the officer to visit his home;
(k) to post a bond, with or without surety conditioned on the performance of any of the foregoing obligations;
(l) to satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.
23. The rationale of the offence under Section 494, Indian Penal Code is to deter a spouse from breaking the home by taking another spouse. Second marriage where it is prohibited by law, in effect amounts to disowning the first marriage. If the accused is sent to jail the wrong will not be remedied and the gap between the husband and wife will, get still more enlarged and will become unbridgeable, On the other hand if they live together, the wrong done to the wife will get undone and the effect of tire crime will be nullified. Thus good behaviour for the accused in this case will be to take back Sindhya Devi and live with her amicably and maintain her. If he faila to keep and maintain her or treats her with cruelty or lets her being illtreated by his mother or maternal grand, father, or keeps in the house Smt. Shiv Rani it would mean that he has failed to be of good behaviour. Of course, if the wife (Smt. Sindhiya Devi) has reasonable grounds for not living with her husband Ramji Lal, it would be "good behaviour" to pay her maintenance and non-payment of maintenance will be contrary to "good behaviour".
24. Learned Counsel for Ramji Lal has stated that his client will immediately give notice of this order to Smt. Sindhiya Devi and invite her to live with him.
25. I accordingly direct that Ramji Lal be permitted to remain at liberty on parole for a period of one year on his entering into a bond with two sureties in the aura of Rs. 1000/-each to appear and receive the sentence when called upon during the period of probation and in the meantime to keep peace and be of good behaviour. The bonds will be furnished before the Chief Judicial Magistrate, Farrukabad, within a month. In case the necessary bond with surties is not furnished the respondent Ramji Lal will be taken into custody and brought to this Court for receiving the sentence.
26. The Chief Judicial Magistrate will summon without delay Smt. Sindhiya Devi and inform her of this order and also summon Ramji Lal for appearance on the same date so that Smt. Sindhiya Devi might go to live with him.
27. In cage she does not agree to go with Ramji Lal for living with him and the Chief Judicial Magistrate is of opinion that the refusal is not unreasonable, he would refer the matter to this Court, with information to Ramji Lal, for the passing of adequate orders.
28. Let a copy of this order be sent to the Chief Judicial Magistrate for compliance.