PRESUMPTION OF MARRIAGE: SECOND MARRIAGE BARS SERVICES


Introduction
Section 114 in The Indian Evidence Act, 1872 lays down –

(i) There would be presumption in favor of wedlock if the partners lived together for long spell as husband and wife, but it would be rebuttable and heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place; (Tulsa v. Durghatiya, 2008 (1) SCR 709: 2008 (4) SCC 520.)

In the following sections, we shall look at this in the light of the judgment in Dhannulal & Ors vs Ganeshram And Anr on 8 April, 2015 (Civil Appeal No.3410 of 2007) and some other judgments and proceed to see whether for a second marriage to be a bar on government service; the first marriage has to be strict as per the procedure laid down in law.

The Case
In the present case, the appellant had got into a temple marriage followed by a ceremony within a prohibited relationship and had also begotten a child from it. However, his mother had objected to the registration of the marriage and thereafter within a year he had married a second woman; without due permission or intimation to his employer; a government company whose rules prescribe termination of service on second marriage while the first wife is still alive. The question is whether, for such termination, the first marriage has to be as per legal formality. 

In addition, the appellant has been acquitted in a criminal case of the charge of bigamy as the solemnization could be proven. This is in line with the Supreme Court decision in Lingari Obulamma v. L. Venkata Reddy (1979 CriLJ 849), where it was held by the Supreme Court that when there was absolutely no evidence to prove that any of the two essential ceremonies i.e. "Dattahoma" and "Saptapadi" had been performed at the time of second marriage and the existence of the custom in the community to put the 'yarn thread' instead of 'mangalsutra' was neither mentioned in complaint nor proved in evidence elements of offense under Section 494 of the IPC could not be established. This is also in line with Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr (1965 AIR 1564) which held that Prima facie, the expression  'whoever-marries' in S. 494 must mean 'whoever-marries validly' or 'whoever-marries and whose marriage is a valid one. If a marriage is not a valid one according to the law applicable to the parties,  no question arises of its being void by reason of its taking place during the life of the husband or wife of the person marrying.

It may be mentioned that the first wife had to go to court to get maintenance for herself and her child.

Concept of Marriage in Context
The Apex Court in Dhannulal & Ors vs Ganeshram And Anr (Civil Appeal No.3410 of 2007) had said –

“12. In the fact of the case, there is a strong presumption in favor of the validity of a marriage and the legitimacy of its child for the reason that the relationship of Chhatrapati and Phoolbasa Bai is recognized by all persons concerned.”

Reliance was placed on A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it had been held that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage and Gokal Chand vs. Parvin Kumari, AIR 1952 SC 231, where the Court had observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

However, it is to be noted that in these cases the cohabitation had been for a very long time – more than a decade and several offsprings from the marriage were also there.

In Khursheed Ahmad Khan vs. State of U.P. and Ors. (Civil Appeal No. 1662 of 2015 (Arising out of SLP (C) No. 5097 of 2012), the Supreme Court had upheld the dismissal from service of a government servant who had got into a second marriage where the same was against the service rules. It was said that “no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one” and hence, the dismissal would not be violative of Article 25 of the Constitution.

However, in this case, there was no question about the legal validity of the first marriage.

Again, in Pancham Giri vs. State of U.P. (Civil Misc. Writ Petition No. 25871 of 2009), the Allahabad High Court, had held that the punishment of dismissal for second marriage is too harsh and shocking the conscience of the court and hence, should be reconsidered under the doctrine of proportionality; the husband had taken permission from the first wife before the second marriage. 
Reliance was placed on a decision of the Andhra Pradesh High Court, which had come to the conclusion that the punishment of compulsory retirement on the ground of bigamy was disproportionate and was substituted by the stoppage of two increments with cumulative effect. 
But then again in S. Nagendran vs. Government of India, Ministry of Defence and Ors. (Writ Petition No. 146 of 1989), the Andhra Pradesh High Court had upheld the dismissal of army personnel on the ground of second marriage, which was violative of Regulation 333 (c) (b) and (c) of the Regulations made under the Army Act.

A similar stand was taken by the Rajasthan High Court in Laxman Singh vs. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 6135 of 1991)

“Because the misconduct alleged against the petitioner is not so serious which calls for the maximum penalty of dismissal. In fact, while passing the impugned order of termination, the authority had not taken into consideration any other aspect of the matter or the question of imposing any other penalty other than the penalty of dismissal. In my considered opinion, while imposing the punishment the disciplinary authority has to apply its mind to the facts of the case and it has to come to the conclusion that what should be the proper penalty for the misconduct which is committed by the delinquent. For that, the disciplinary authority had also to consider the other circumstances namely clean record of the petitioner, long tenure of service, family background and the social strata, etc. There was no such consideration on the part of the disciplinary authority and it appears that mechanically without applying mind the disciplinary authority has straight away terminated the services of the petitioner.

Even the Guwahati High Court in Rohit Kumar Bhujel vs. Union of India (UOI) and Ors. (WP (C) No. 1308 of 2005) echoed similar views and even stressed on the assessment of the validity and solemnization of the first marriage as follows -

“Although Learned Counsel for the petitioner and the respondents tried to establish their own standpoints before this Court on the truth of marriage of the petitioner with Smt. Aton Kashung Shimray, but the fact remains that during the inquiry proceedings before the Inquiry Officer the petitioner was not afforded any opportunity to defend him in the case by engaging a Counsel of his choice. In the entire inquiry proceedings, there is no reflection on any of the notings, regarding affording of an opportunity to the petitioner to engage a Counsel of his choice to defend himself in the Departmental Proceeding. The Inquiry Officer did not care to ascertain as to whether the form of marriage i.e., as stated by the petitioner is a recognized form of customary marriage prevailing in the community of the petitioner nor did he ascertain with certainty, if at all a legally valid marriage was solemnized When the petitioner was interrogated by the Inquiry Officer, he stated to have fallen in love with Mrs. Aton and then married her in a local Mandir at Imphal. The Inquiry Officer very well obtained the statement of the petitioner's legally married wife Smt. Gyatri Bhujel, who informed the Inquiry Officer that she got married to the petitioner according to Hindu rites. Therefore, before holding the petitioner guilty of plural marriage with Ms. Aton Kushung Shimrey, solemnization of marriage in terms of Hindu rites, (if Ms. Aton was a Hindu by religion), should have been verified by the inquiry officer. For a Hindu, marriage is no contracted, it's a sacrament. Giving Status of a wife and getting legally married in terms of Hindu rites and customs are not similar propositions. Living together and having children may not necessarily mean a legally valid marriage”.

However, the Calcutta High Court has upheld such dismissal –

In The Members of Managing Committee vs. Pasupati Das and Ors.(W.P. No. 2831(W) of 2009 and CAN 10115 of 2009); Sambuddha Chakrabarti, J. upheld the dismissal when the delinquent employee was convicted in a criminal court on charges of bigamy; even though the Board of Secondary Education set aside order of dismissal passed by Managing Committee of concerned school against Respondent no. 1 and directing said Respondent to be reinstated in service. However, it was admitted that Respondent no.1 had committed bigamy and he was tried in Criminal Court and was convicted and sentenced. It was observed -

“17. Thus, respondent No. 1 also having himself admitted the second marriage it cannot be said that he has been in any manner prejudiced by the non-observance of the principles of natural justice. The second marriage having been admitted by him it would have been an empty formality to give a fresh opportunity to defend himself because it is a settled principle of any legal system that a fact admitted need not be proved.”

Also, in State of W.B. and Ors. vs. Prasenjit Dutta (Civil Appeal No. 5339/1993), the Supreme Court overturned a Calcutta High Court decision to stay the dismissal – the stay having been granted on the ground that the question of second marriage was a serious matter which could not be left to be decided by the departmental authorities, in proceedings such as these, and a civil or matrimonial court needs to pronounce thereon properly and finally. While setting aside the High Court order, the Apex Court had observed:

“It cannot at the same time be said that the departmental authorities cannot go into such question for the limited purposes of Sub-rule (4) of Rule 5 of the aforesaid Rules. When contracting another marriage, in the presence of the previous one, it has been termed to be misconduct visiting departmental punishment it is difficult to keep suspended action under the Rule till after a proper adjudication is made by the Civil or Matrimonial Court. It would, thus, have to be viewed that the departmental proceeding could not be shut in the manner in which the High Court has done and it would have to go on to some finality at a departmental end, on the culmination of which, it may then give rise to the delinquent approaching the Civil Court for determining his matrimonial status. Thus, we are of the view that the High Court, both at the trial and the appellate stages, committed an error in preventing the dismissal order to take effect on the premises as noted above. However, besides that point, if any other point had arisen in the matter which justified a stay of operation of the dismissal order, that could be left to the High Court to be determined in accordance with the law.”

Analysis & Conclusion
Looking at the above cases, it seems that there is no exact decision from the Supreme Court which fits the facts and circumstances of this case. Also, the decisions of the various High Courts are somewhat divergent. So to delve further into this, the decision of the Supreme Court in Reema Aggarwal vs. Anupam and Ors. (Crl. A. No. 25 of 2004) - Doraiswamy Raju and Dr. Arijit Pasayat, JJ. 
Although this is a criminal appeal, certain observations may be pertinent –

“4. Before the trial court the accused persons put the plea that charge Under Section 498A was thoroughly misconceived as both Sections 304B and 498A Indian Penal Code presupposes valid marriage of the alleged victim woman with the offender husband. It was required to be shown that the victim woman was the legally married wife of the accused. Since it was admitted that the Appellant had married during the lifetime of the wife of Respondent 1, what happened to his first marriage during the lifetime of the wife of Respondent 1, what happened to his first marriage remained a mystery. The prosecution has failed to establish that it stood dissolved legally. The prosecution has failed to bring any material record in that regard, Section 498A had not the application.
…….

Consequently, the evils sought to be curbed are distinct and separate from the persons committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabit and exercise authority as such husband over another woman.
…….

11. The question as to who would be covered by the expression "husband" for attracting Section 498A does present problems. Etymologically, in terms of the definitions of "husband" and "marriage" as given in the various law lexicons and dictionaries - the existence of a valid marriage may appear to be a sine qua non for applying a penal provision. In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav a woman claimed maintenance Under Section 125 of the Code of Criminal Procedure, 1973 (in short "Code of Criminal Procedure). This Court applied the provision of the Marriage Act and pointed out that same was a law which held the field after 1955, when it was enacted and Section 5 lays down that for a lawful marriage the necessary condition that neither party should have a spouse living at the time of the marriage is essential and marriage in contravention of this condition, therefore, is null and void. The concept of marriage to constitute the relationship of "husband" and "wife" may require strict interpretation were claims for civil rights, right to property, etc. may follow or flow and a liberal approach and different perception cannot be anathema when the question of curbing a social evil is concerned.”

Thus it was held that the expression “husband”, would cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any purposes enumerated in Sections 304-B/498-A, whatever be the legitimacy of the marriage itself. Hence, husband contracting second marriage during the subsistence of earlier marriage can be charged Under Sections 304-B and 498-A.”

The case then applies Heydon's rule (to interpret the statute in such a way to ensure that the gap is covered) - purposive construction and mischief rule applied - word and phrase being "Husband".

In the context of the present case, it should be noted that marrying a second wife or forsaking the first wife does not affect the efficiency or output of a person in his work as a government servant. But the intent of the legislature in framing acts that allow instrumentalities of the state to make rules of conduct that deter a second marriage is aimed at curbing social evils relating to the same. Thus in light of the above case, the legal provisions should be given a purposive interpretation so that marital turpitude is discouraged in people who serve such organizations and those aspiring to get into them. Such a deterrence has a positive social consequence. 

While getting into a prohibited marital relation may be ascribed to both the appellant and the first wife, the subsequent acts of remarriage without pursuing the civil suit for declaration of dissolution of the first marriage and the first wife having to run to court to get maintenance for herself and her child shows that the appellant wants to wash his hands of all responsibility for his part of the wrong act. Thus it cannot be said that he has come to court with clean hands and hence the principle “He who comes into equity must come with clean hands” clearly goes against him; reducing his chances of relief.

***** END ****
There is a line of cases that lay down the law that the decision of a criminal court is not binding on a civil court. In a civil action between different parties the finding of a criminal court certainly cannot be treated as binding. If any authority is required, one may refer to the decision in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Administration) : (2009) 5 SCC 528.

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