S. Nagalingam v. Sivagami (2001)

The ceremony requirement for bigamy is the standing escape route for a husband who takes a second wife. This is the decision where the first wife wins. It holds that saptapadi is essential only where the form of marriage applicable to the parties makes it essential, and that where a statutory simplified form applies, a tying of the marriage thread or an exchange of garlands is enough to constitute a valid second marriage — and therefore enough to convict.

The appellant married the respondent on 6 September 1970 and three children were born. She alleged that he began to ill-treat her and that she was physically tortured on many occasions, and that as a result of the ill-treatment and severe torture by him and his mother she left the matrimonial home and went to live with her parents. She then learnt that on 18 June 1984 he had married another woman in a marriage hall at Thiruthani, in Tamil Nadu.

She filed a criminal complaint against him and six others. All were acquitted by the trial court. On her appeal the High Court upheld the acquittal of the other accused but remitted the case against the husband, permitting her to adduce evidence about how the second marriage was solemnized. On remand the priest was further examined and the husband further cross-examined; the Magistrate again acquitted. On her second appeal the High Court held the husband guilty of bigamy, and he appealed.

The Magistrate had acquitted on the ground that saptapadi had not been performed, so the second marriage was invalid and no offence was made out. The priest deposed that the bridegroom tied the marriage thread round the bride's neck, that the couple exchanged garlands three times, that the bride's father gave his daughter in the presence of the fire and the bridegroom's father accepted, and that he performed the marriage in accordance with the customs applicable to the parties.

The conviction was upheld and the appeal dismissed. The parties to the second marriage were Hindus resident in Tamil Nadu and were married there, so the State amendment inserted as s. 7-A applied; on the priest's evidence there was a valid marriage under that provision. The second marriage having been valid in form and contracted while the first subsisted, the offence of bigamy was made out, and the remand to the trial court for an appropriate sentence was correct.

1. State the ingredients. The accused must have contracted the first marriage; while it was subsisting he must have contracted a second; and both marriages must be valid in the sense that the necessary ceremonies governing the parties must have been performed. The validity of the second marriage must be proved by the prosecution by satisfactory evidence, and a mere admission by the accused may not be enough.

1. Read the earlier line correctly. In the decisions where an acquittal followed for want of saptapadi, the parties themselves had agreed that under the law prevalent among them the fire ceremony and saptapadi were essential rites. Saptapadi was held essential only in cases where it was admitted by the parties that under the form of marriage applicable to them it was essential.

1. Note what the general provision actually says. A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party, and where such rites include saptapadi, the marriage becomes complete and binding when the seventh step is taken — which makes saptapadi decisive only where the applicable rites include it.

1. Apply the State provision. The special provision covers a marriage between two Hindus solemnized in the presence of relatives, friends or other persons, by each party declaring in a language they understand that each takes the other as spouse, or by each garlanding the other or putting a ring on the other's finger, or by the tying of the thali. Its main thrust is that the presence of a priest is not necessary; any one of those simple acts completes a valid marriage, and such marriages are declared good and valid in law notwithstanding the general ceremonies provision.

1. Apply it to the evidence. The tying of the thread and the exchange of garlands, deposed to by the priest, answered the statutory description. Neither party had ever contended that saptapadi was an essential ceremony for a valid marriage in their community. On any view there was a valid second marriage on 18 June 1984, contracted while the marriage of 1970 subsisted.

It opens the counter-argument to the standard defence that without saptapadi there is no offence. The method is: identify the rites applicable to these parties; ask whether saptapadi is among them; and check whether any special statutory form applies. It is also the case to cite for the proposition that a husband's cruelty driving the wife to her parents' home does not end the marriage, so the second marriage is bigamous.

It disposes of the proposition that saptapadi is a universal essential of a valid Hindu marriage, and the assumption that a marriage performed without a priest cannot be a marriage.

It does not decide the position in States without such an amendment, where the general position and the strict proof of custom continue to govern. Nor does it deal with the wife's civil remedies or with the status of the second wife and her children.