S. Mohan, J.
The first respondent was charged for an offence under Section 494 of the I.P.C., respondent No.7 under Section 494 read with Section 109 of I.P.C. The trial took place before Judicial Magistrate No.1, Bikaner. It was held that the prosecution had not proved through proper witnesses `sapatpadi' to establish the factum of second marriage of accused (respondent No.1). The High Court found that it was not a fit case for grant of leave to appeal. Thus, the present criminal appeal against the impugned order dt.18.7.1978 was passed by the High Court.
2. The only point urged before us is that though `sapatpadi' a fact has not been proved, there is enough evidence to establish the factum of second marriage. There are eye-witnesses who have seen the marriage. That is enough to bring out the charge. The principle related to `sapatpadi' taking of seven steps before the sacred fire cannot be insisted upon if as of fact marriage is established. Therefore, the courts below are wrong.
3. The learned counsel for the respondents would urge that the courts below have correctly appreciated the legal position. It is `sapatpadi' which establishes the factum of marriage, being an essential ceremony. Without proof of such a ceremony, a case for bigamy cannot arise.
4. We have carefully gone through the evidence. The evidence of PW2 to PW5 does not establish the essential ceremony of marriage viz. `sapatpadi'.
5. This Court in Kanwal Ram v. H.P.Administration, AIR 1966 SC 614 has held as under :
"It was contended for the appellants that this evidence was not enough to show that the marriage of Kubja and Kanwal Ram can be said to have been performed. We think this contention is justified. In Bhaurao Shankar Lokhande v. State of Maharashtra, Crl. Appeal No.178 of 1963, unreported; (since reported in AIR 1985 SC 1564), this Court held that marriage is not proved unless the essential ceremonies required for its solemnization are proved to have been performed. The evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed. So that evidence cannot justify the same view. The learned Judicial Commissioner does not seem to have taken a different view.
The learned Judicial Commissioner, however, thought that apart from the evidence about the marriage ceremonies earlier mentioned there was other evidence which would prove the second marriage. He first referred to a statement by the appellant Kanwal Ram that he had sexual relation with Kubja."
6. The same principle is reiterated in Priya Bal v. Suresh Chandra AIR 1970 SC 1188 as under :
"According to Mr.Majumdar, when once the priest has given evidence to the effect that the marriage between the respondent and Sandhya Rani has been performed, it follows that all the essential ceremonies that are necessary to constitute a valid marriage must be presumed to have been performed. In any event, when there is evidence to show that the marriage as a fact has taken place, the presumption is that it has taken place according to the law. In this connection Mr.Majumdar referred us to various English decisions where on the basis of certain evidence regarding the taking place of marriage between the parties a presumption has been drawn that the marriage must have been solemnized according to the law. In our opinion, it is unnecessary to refer to those cases cited by the learned counsel as the position is concluded against the appellant by the decisions of this Court on both points. Section 5 of the Act lays down conditions for a Hindu marriage. It will be seen that one of the conditions is that referred to in Clause (i) namely, that neither of the parties has a spouse living at that time of the marriage. Section 7 dealing with the ceremonies for Hindu marriage is as follows :
"Section 7 - Ceremonies for a Hindu Marriage.
(1) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the `sapatpadi'(that is 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."
We have pointed out that in the case before us both sides were agreed that according to the law prevalent amongst them Homa and Sapatpadi were essential rites to be performed for solemnization of the marriage and there is no specific evidence regarding the performance of these essential rites. The parties have also not proved that they are governed by any custom under which these essential ceremonies need not be performed.
To conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the Homa and Sapatpadi are the essential rites for a marriage according to the law governing the parties and that there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani." (Emphasis Supplied)
7. The position is similar in this case. In the absence of proof of such a ceremony the factum of second marriage cannot be held to have been made out.
8. Though we have come to the above conclusion, the first respondent is undoubtedly living with Bimla, Respondent No.4 as husband and wife. Merely because the appellant is not in a position to prove the factum of second marriage punishable under Section 494 of the Indian Penal Code that does not mean the appellant should be left in the lurch. Exercising our powers under Article 142 of the Constitution of India we think appellant should be awarded compensation which will bring some solace when her life is dismally dark. Therefore, we quantify the compensation at Rs.25,000/- which shall be paid by the first respondent to the appellant within eight weeks from today.
9. In the result, the criminal appeal is disposed of in the above terms.