Cohabitation, child’s birth not proof of marriage in bigamy case: HC

Ahmedabad: The Gujarat high court has held that in a criminal prosecution for bigamy, marriage cannot be presumed merely from cohabitation or from the birth of a child, and has upheld the acquittal of a man accused of contracting a second marriage during the subsistence of his first marriage.

The case arose from a complaint filed in 1999 before a judicial magistrate first class court in Patan by the accused man's father-in-law. According to the complaint, the man married in 1989, but after matrimonial disputes, his wife left for her parental home in 1996. It was alleged that he then contracted a second marriage in 1998 while the first marriage was still legally subsisting.

To support the allegation, the complainant relied on the birth of a daughter in July 1999 from the alleged second marriage and placed the child's birth certificate on record. An eyewitness was also examined to support the claim that a second marriage had taken place.

In 2006, the Patan court rejected the complaint. It first held that it lacked territorial jurisdiction because the alleged second marriage took place in Anand and the couple also resided there. The trial court nevertheless examined the matter on merits and concluded that the alleged second marriage had not been proved.

The complainant then challenged that decision before the high court. The high court framed two issues for consideration: whether the Patan court had territorial jurisdiction under Section 182(2) of the Code of Criminal Procedure, and whether the proceedings stood vitiated if it did not.

The court held that Patan indeed lacked territorial jurisdiction, noting that the alleged second marriage took place in Anand, the couple last resided together there, and the first wife was residing in Kutch, not Patan, after the alleged offence. However, the court said this defect did not automatically invalidate the proceedings. Referring to Section 462 of the CrPC, it held that proceedings conducted in a wrong territorial jurisdiction are not nullified unless there is a demonstrated failure of justice. In the present case, no such failure was either pleaded or proved.

On the substantive charge of bigamy, the high court found that the complainant failed to establish a valid second marriage in accordance with law. It noted that the first wife did not enter the witness box, the father-in-law's testimony was hearsay, and the alleged eyewitness did not prove the essential ceremonies necessary to constitute a valid marriage.

Addressing the evidentiary value of the birth certificate, the court said: "However, it cannot, by itself, be treated as proof of a valid marriage. The law is well settled that marriage cannot be presumed merely from cohabitation or from the birth of a child, particularly in criminal proceedings where strict proof beyond reasonable doubt is required."


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