Page |1

DR. A.N.MUKHERJI V. STATE

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISHAKHAPATNAM

SEPTEMBER 2019
 Page |2

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to our Family law Teacher. Dr. S.
Radhakrishna, Ph. D., Assistant Professor, who gave a golden opportunity to do this project on
the topic “Dr.A.N.Mukherji v. State” which helped me in doing a lot of research work and I
came to know about so many new things and I am really thankful to my professor.

I am doing this project not only for marks but also to gain knowledge. I have tried my best to
collect information about the project using various possible ways to depict the clear picture about
the given project topic.
 Page |3

CONTENTS

Synopsis …………………………………………………………………………………………..4

Court …………………………………………………………………………………………......6

Case name………………………………………………………………………………………...6

Citation……………………………………………………………………………………………6

Date of judgement……………………………………………………………………………….6

Bench …………………………………………………………………………………………….6

Acts ……………………………………………………………………………………………….6

Head note…………………………………………………………………………………………6

Facts………………………………………………………………………………………………7

Question of law………………………………………………………………………………….11

Contentions of appellants………………………………………………………………………12

Contentions of respondents…………………………………………………………………….15

Cases referred…………………………………………………………………………………..18

Judgement of Lower Court…………………………………………………….........................19

Judgement of High Court……………………………………………………………...............20

SYNOPSIS:

COURT: The High Court of Allahabad

CITATION: AIR 1969 All. 489

BENCH: Hon’ble Justice H.C.P. Tripathi and Hon’ble Justice Jai Shanker Trivedi

ACTS: Indian Evidence Act, 1872 - Section 33; Indian Penal Code 1860, (IPC) - Section 376;
Indian Penal Code 1860, (IPC) - Section 417; Indian Penal Code 1860, (IPC) - Section 493;
Indian Penal Code 1860, (IPC) - Section 496

HEADNOTE: criminal appeal no. 471 of 1966 by Dr. Amar Nath Mukherji against his
conviction and sentence of one year rigorous imprisonment and a fine of Rs. 75000 under section
417 and criminal appeal no. 944 and 376 IPC arise out of the same judgement of the learned
sessions judge also sec 494 of IPC.

FACTS: in this case., the complainant got married to a physician Dr. Amr Nath Mukherji. She
alleged that she married him thrice. Firstly before moon, secondly in kali temple and thirdly as
an intimation of sikh marriage before Guru Granth Sahib.

Later she lodged a complaint against Dr. A.N Mukheji for the offence of bigamy.

QUESTION OF LAW: Whether mock ceremonies of the complainant and the accused constitute
a valid marriage under the Hindu Marriage Act, 1955?
 Page |5

CONTENTIONS OF APPELLANTS AND RESPONDENTS: the appellants made an appeal to

The complainant Mrs. Harbans Kaur argued that their marriage was performed and he cheated
on her. She raised the charges against him under S.S. 493 and 376 of IPC.

CASES REFERRED: Deivan Achi v. Chidambara Chettiar, AIR 1954 Mad.

JUDGEMNET OF LOWER COURT: the lower court acquitted the accused of the charges under
S.S. 493 and 376 of IPC but convicted of offences under Section 419 of IPC.

JUDGEMENT OF HIGH COURT: The courts held that such mock ceremonies wouldn’t
constitute a valid marriage. Hence, the prosecution for bigamy has failed in the absence of proof
that the marriage based upon valid ceremonies.
 Page |6

CASE ANALYSIS:

COURT: IN THE HIGH COURT OF ALLAHABAD

CASE NAME: DR. A.N.MUKHERJI V. STATE

CITATION: AIR 1969 All 489

DATE OF JUDGEMENT: 5th January, 1968

BENCH: Hon’ble Justice H.C.P. Tripathi and Hon’ble Justice Jai Shanker Trivedi.

ACTS: Indian Evidence Act, 1872 - Section 33;

Indian Penal Code 1860, (IPC) - Section 376;

Indian Penal Code 1860, (IPC) - Section 417;

Indian Penal Code 1860, (IPC) - Section 493;

Indian Penal Code 1860, (IPC) - Section 496

HEADNOTE: (i) Criminal - composite charge - Sections 234 (1) and 235 (1) of Criminal
Procedure Code, 1898 - charge of cheating under Section 417 - deception and delivery of
property essential ingredients of cheating - deception as alleged was same - in delivery of
property for period of fifteen years there is nothing common to form transaction - held, in
absence of conspiracy charge not open to Trial Judge to frame charge under Section 417.

(ii) Power of Sessions Judge - Sections 226 and 227 of Criminal Procedure Code, 1898 - Court
enjoys comprehensive power to remedy the defects in framing or non-framing of the charge.

(iii) Common element - Sections 222, 223, 232 and 423 of Criminal Procedure Code, 1898 -
charge framed under Sections 376, 417 and 496 of Indian Penal Code - element of deception
common to all - element of deception not proved for offence under Sections 376 and 496 - held,
accused cannot be convicted under Section 417 and charge must fail.
 Page |7

FACTS:

The facts of the case are as follows:

1. Smt. Harbans Kaur (prosecutrix) was born in a Sikh family at Sialkot. Her father late Sardar
Khazan Singh was once the President of the Regency Council of Maharaja of Faridkot and later
on the Deputy Commissioner of Lyallpur. In the year 1921 at the age of 11 or 12 years she was
married to Sujan Singh a Sikh by faith in the Anand form which is an approved form of marriage
amongst the Sikhs. About an year after Sujan Singh went abroad for higher studies and returned
to India by the end of 1925 after having qualified himself as a Bachelor of Science in
Engineering from the University of London. He was appointed as an Assistant Engineer in the
Assam Bengal Railway in 1926 and retired in 1959 as Deputy Chief Engineer on a salary of Rs.
2000/- per month.

2. In 1927 after his first appointment Sujan Singh brought his wife who was a shy and innocent
girl observing Pardah to live with him. During the period 1927 to 1939 Sujan Singh was posted
at various stations in Assam where the husband and wife lived happily and had four children. In
1939 Smt. Harbans Kaur started getting pain in her abdomen and on the suggestion of a lady
friend she went to Calcutta to get treatment from the accused who had recently returned from
England after obtaining double F. R. C. S. from two British Universities. Sujan Singh could not
accompany her. She met the accused who treated her and when her pain had subsided she came
back to Mymensingh where her husband was posted and told him that the doctor had advised her
to come to Calcutta for further treatment. Sujan Singh accordingly took six month's leave and
went with his wife and children to Calcutta in the first week of December, 1939, and stayed there
at 3 Store Road. On their arrival their daughter Sheela got typhoid and was treated by the
accused. When Sheela was better he started the treatment of the complainant.

3. During the period between December 1939 and February 1940 the accused became very
friendly with Sujan Singh and 'his wife. He used to come not only for professional visits but also
for friendly and social contacts and often took his lunch, tea and dinner with them. The
complainant and her husband began to repose confidence in him. Sometimes he used to take the
complainant and her husband to various aristocratic clubs and hotels in Calcutta which were
frequented by the high echelons of the Calcutta society and were attended by dinners and
 Page |8

dancing parties. The frequent visits to such social gatherings in hotels and clubs had a
tremendous effect on the unsophisticated mind of the prosecutrix who began to take a wide
interest in them. The accused evinced unusual interest in the complainant and started admiring
her on frequent occasions and thus became friendly with her. One day in January 1940 when the
accused went to give her injections he found the loosened hairs of the complainant lying on the
dressing table and put them in his purse despite her objections. After this incident the
complainant also developed a liking for the accused who expressed to her on some occasions that
he was madly in love with her. In fact the accused started taking liberties with her but she did not
allow him to go beyond certain limits.

4. About the second fortnight of February, 1940, on the Poornamashi night Sujan Singh left for
Jamshedpur. The accused took him and the complainant in his car to Howrah Rly. Station. When
the train had left with Sujan Singh at about 9 p. m. the accused and the complainant returned.
She was sitting by the side "of the accused who was himself driving the car. In the car the
accused told her that he wanted to marry her. She took it as a joke and asked as to how he could
marry her when she was already married. The accused narrated to her the stories of Draupadi and
Shakuntala from the Hindu epics and told her that a Hindu woman can marry more than one
husband. He explained to her that he wanted to marry her in the Gandharva form as King
Dushyant had married Shakuntala. The complainant believed the representations of the accused
and agreed to such marriage without understanding its significance. The accused then drove to
Dhakuria Lakes in South Calcutta and after parking the car both of them came out and faced the
moon. The accused recited some Sanskrit Shlokas which she could not understand, embraced her
and exclaimed "Moon you are my witness. I am marrying Harbans and she is my wife and I am
her husband." He added further "God who is everywhere is also our witness". Both of them
bowed to the moon.

5. The accused asked the complainant to touch his feet as a Hindu wife does to her husband and
she obeyed. Both of them then went back to the rear seat of the car and remained there for about
half an hour and the complainant did not object to cohabitation as she was induced to believe that
it was a valid marriage and the accused, who had become her husband, had every right on her.
Thereafter the accused dropped the complainant at her residence at 3 Store Road and went away.
 Page |9

After a few days the accused took the complainant to his house at 77 Hazra Road and introduced
her to his mother, sister, brother and other family members.

6. In March 1940 Sujan Singh was recalled to duty in Assam. The children, also went back to
Shillong where they were prosecuting their studies. The complainant, however, remained at
Calcutta with servants and a governess. During this period the accused tried to be all the time
with her. The complainant did not disclose her marriage to her husband Sujan Singh as the
accused had taken a promise from her that she would not do so as one day he himself would
inform Sujan. Singh. In May, 1940, the complainant went back to Sujan Singh who was then,
posted at Haflong but used to come almost every month to Calcutta on the pretext of shopping
and treatment but actually to meet the accused. The complainant frequently stayed for
considerable periods in Calcutta at various places between February 1940 and 1955 and the
accused from time to time lived and cohabited with her as her husband. During the aforesaid,
period the complainant's former husband used to remain most of the time outside on duty and
even when the complainant went and lived with him or he came and lived with her at Calcutta
she used to have a separate bed and did not allow him to have marital relations with her.

7. Since his marriage in 1940 the accused was insisting that the complainant should bear a child
through him. After some hesitation she agreed and underwent a special medical treatment
including a surgical operation in 1947. By the end of April or beginning of May, 1948, she
conceived from the accused. In order to cover up the pregnancy, she called Sujan Singh from
Assam in June, 1948, on the advice of the accused and cohabited with him in the night although
they had not been on good terms and had shunned each other during the last several years.

8. Whenever the complainant entertained any doubts about the validity of her moon marriage
either because of the culpable intimacy of the accused with other women or his subsequent cold
behaviour towards her he always represented to her that she was his lawfully wedded wife by
citing examples of Gandharva marriages from Hindu epics and by observing various
performances meant for a husband. He also wrote numerous letters to the complainant on various
occasions showing that he treated her as his wife.

9. In June. 1948, the accused in order to assure the complainant that he was her husband took her
to the kali temple at kalighat and underwent there a form of marriage with her which he
 P a g e | 10

represented to be an approved form of marriage amongst the Hindus. Garlands were exchanged
in front of the deity and the accused put Tilak on the forehead of the complainant and walked
seven steps with her to satisfy the requirements of a valid marriage. On the next day a similar
performance was again gone through by them before Guru Granth Sahib in the house of the
complainant. In this way the accused inspired complete confidence in the mind of the
complainant that she was his legally wedded wife and thus succeeded in cohabiting with her as
her husband during the period. On the 19th January, 1949, a daughter was born to the
complainant as a result of her conception by the accused.

10. According to the prosecutrix she was possessed of considerable amount of cash and precious
jewelleries which she had received from her parents and the accused by various false pretences
of love cheated her of her money and jewelleries. He used to look after her household affairs
inasmuch as he arranged for her residence and conveyance, looked after her bank accounts,
deposited and withdrew money from the banks on her behalf and cashed her cheques. As the
complainant reposed implicit confidence in the accused that she took as her husband she
deposited a large amount of money on his advice with the Calcutta Commercial Bank Ltd., and
with M/s. H. Datta & Sons Ltd., who were the managing agents of the aforesaid Bank. The
accused had assured her when the money was given to H. Datta & Sons Ltd. for deposit, that he
was responsible for the safety of the money. With the failure of Calcutta Commercial Bank Ltd.,
in September, 1948, and the collapse of its managing agents H. Datta & Sons Ltd. soon
thereafter, the complainant lost a sum of about Rs. 7,00,000/- which she had kept with them.
Even after that, the accused kept on promising the complainant that he would get back her
money. On various occasions, the accused, on one pretext or the other, took away the jewelleries
of the complainant and returned only a part of it after several demands and reminders. Having
deprived the complainant of her riches the accused began to show indifference to her since 1950.
Between 1950 and 1955 the accused treated the complainant with cruelty and occasionally
tortured her. But whenever she went out of Calcutta to Mussoorie and other stations he entreated
her to return. But on her return, she was subjected to the same cycle of ill-treatment and then
cajolery.

11. In 1955 when the complainant was completely disgusted with the behavior of the accused she
addressed a letter dated 3-5-1955 from Lucknow to her daughter Sheela who was in Calcutta
 P a g e | 11

disclosing to her the incidents of her past life and her alleged marriage with the accused. This
letter fell into the hands of Sujan Singh who then came to know that his wife was living in
adultery with the accused since 1940.

12. Sujan Singh filed a petition in the High Court of Calcutta for the dissolution of his marriage
with the complainant and obtained an ex parte decree against her on the ground of her adultery
with the accused. After the dissolution of her marriage with Sujan Singh the accused refused, to
marry her and cut off his connections completely in 1956. When the complainant received a copy
of the written statement of the accused in her suit for the recovery of the money she became
convinced that the accused knowing well that the alleged marriage performed with her were
bogus and invalid in the eye of law deceitfully caused her to believe that she was his legally
married wife and induced her to cohabit with him and after the dissolution of her marriage with
her former husband instead of marrying her in an approved form left and forsook her.
Accordingly she filed the present complaint. According to the complainant she would never have
parted with her money and jewelleries but for the deception practiced on her by the accuse

QUESTION OF LAW:

1. Whether mock ceremonies of complainant and the accused constitute a valid marriage under
Hindu Marriage Act, 1955?

2. whether the deception being the same, namely the inducement to believe that the prosecutrix
was the legally wedded wife of the accused throughout the period, the various acts spread over
that period by which she is alleged to have parted with her money and jewellery can form the
same transaction so as to attract the exception provided under Section 235 to the general rule?
 P a g e | 12

CONTENTIONS OF APPEALLANTS:

The appellants are the petitioner in this case and were represented by the learned counsel
P.C.Chaturvedi and L.N.Bose, Advs.

1. the appellant denied all the charges framed against him and contended that he was just treating
for her medical problem and thus becams friends. He insisted that he didn’t commit adultery.

2. Mr. P.C. Chaturvedi, learned counsel for Dr. Mukerji, has vehemently urged that the trial
Judge has not kept in view the salutary principles of Law of Evidence and Criminal Procedure
while holding the trial; that he was not justified in bringing on record irrelevant and inadmissible
evidence; and that he should not have allowed the prosecutrix to make scurrilous allegations on
the basis of hearsay against important persons in the public life of Bengal.

3. Mr. Chaturvedi contended that although the complaint instituted by the prosecutrix envisaged
an offence under Section 417 I.P.C. also, as the enquiry had proceeded only in respect of the
offences relating to sex and not to property, and as the commitment of the accused was only in
respect of an offence under Section 493 I.P.C. it was not open to the trial Judge to add a charge
under Section 417 I.P.C. and then to try and convict the accused on that charge.

4. Mr. Chaturvedi has argued further that in framing the charge under Section 417 the trial Judge
overlooked the provisions of the Code of Criminal Procedure and framed it in such a manner as
to cover numerous transactions spread over a period of 15 years.

5. It is urged that having framed a charge in which the ingredient of deception was that the
prosecutrix was deceived into the belief of that she was the lawfully wedded wife of the accused
and under that deception parted with her money and jewelleries it was not open to the trial Judge,
after giving a finding that such a deception had not been established, to convict the accused for
having committed entirely different kinds of deception for which he had not been charged at all.

6. Mr. Chaturvedi also challenged the veracity of the prosecution story on merits and contended
that on the evidence and circumstances appearing on the record the conviction of the appellant
under Section 417 I.P.C. or under other charges is wholly unsustainable. He also placed before
us Exhibit Ka 301 and Kha 22 letters alleged to have been addressed by the prosecutrix which
have been put to her during her examination and commented that the prosecutrix has admitted in
 P a g e | 13

these letters that her husband Sujan Singh suspected that she had "a boy friend in every town and
anywhere" and that she herself had written in one of these letters that she had boy friends.

7. the contention of Mr. Chaturvedi that the Sessions Judge was debarred in law from framing a
charge under Section 417 against the accused who was committed to stand his trial for an offence
under Section 493 I.P.C.

8. The story of the prosecutrix that she came in contact with the accused as a patient and was
seduced by him to develop intimacy and sexual connections with him which had continued for a
period of about 15 years appears to contain a substratum of truth.

9. It is difficult to believe that the prosecutrix who had described with precision the daily
incidents of her life with the accused, extending over such a long period, could have done so on
the basis of pure imagination unless the story was basically true.

10. It is also difficult to believe that a woman of her status and intelligence having a well placed
husband and four grown up children from him would have invented such a story casting serious
aspersions on her own moral character and thereby endangering her relations with her kinsmen.

11. The prosecutrix was about 30 years of age in 1940 and a mother of four children. Her
husband was an officer in the Railway and she had been living with him since the last several
years. She had mixed in society of Railway Officers and was able to come alone to Calcutta and
make arrangements for her stay. She is educated and had stayed In first class hotels at Calcutta
and other places. She along with her husband attended dancing and drinking parties in hotels
frequented by the aristocratic sections of Calcutta society before she alleges to have come under
the evil influence at the accused. She was not an illiterate, rustic, unsophisticated village damsel
ignorant of the ways of the world.

12. It is, therefore, incredible that she could have been persuaded by the accused to believe that
she could be the wife of another person during the subsistence of her marriage with Sujan Singh
even if some mock performances were held with her.

13. the appellants contended that the court couldn’t solely rely on the here say witness of the
witnesses. Moreover they belong to the prosecutrix.
 P a g e | 14

14. The story of the prosecutrix that the accused had first married her before moon in February.
1940, and then again In June, 1948, in the Kali temple according to Hindu rites and before Guru
Granth Sahib according to Sikh faith has not been corroborated by any reliable evidence on the
record.

15. It is in the evidence of Sujan Singh that during the period 1942 to 1954 he had taken various
amounts from the accused by way of short term loans (Rs. 4000/- in September 1954, Rs. 8000/-
in 1948 etc.) but had returned the same without asking for the adjustment of his dues

16. Firm H. Datta & Sons were the Managing Agents of the Calcutta Commercial Bank. It is not
the case of the prosecution that the amounts alleged to have been given by the prosecutrix to the
accused for being deposited in the Calcutta Commercial Bank Ltd. were not so deposited in her
favour. In fact the finding of the trial Judge is that the amounts were actually deposited with
them. Similarly there is no allegation or finding that the accused had withdrawn any item of
those deposits from the aforesaid Bank or the firm for himself. There is no evidence except that
of the prosecutrix that the cheques for self were cashed by the accused. If her statement that she
gave the money to the accused through the cheques drawn on the Bank is accepted to be true
even then it will not amount to any deception on her because she willingly gave the amount.

17. There is no evidence to show that the accused was in any way intimately connected with the
administration of the affairs of the Calcutta Commercial Bank Ltd. or with their managing agents
H. Datta & Sons Ltd. when the amounts were deposited with them by the prosecutrix. The
evidence, if any, is to the contrary. Sudhin Datta (P. W. 14) who had been the Managing Director
of the Bank and a partner of its managing agency says that Dr. Mukherji had no connection with
the Bank but he had an account with it, that he had no concern with H. Datta & Sons, that Sujan
Singh and his wife Mrs. Harbans Kaur were personally known to him and they used to come to
the Calcutta Commercial Bank Ltd. for deposits and withdrawals and that Sujan Singh used to
deposit money with H. Datta & Sons in different names.

He has admitted that at the time of the opening of an account a person has to be introduced by
another constituent of the Bank and in that way Dr. Mukherji had introduced Sujan Singh and
Ms wife to the Bank and its managing agents. He has categorically stated that Dr. Mukherji was
never a Director of the Calcutta Commercial Bank Ltd. and he was not a business associate of H.
 P a g e | 15

Datta & Sons and that the various amounts with the Bank or the firm had been deposited either
by Sujan Singh or by Smt. Harbans Kaur.

18. In order to constitute an offence of cheating there must be (a) a deception and (b) the delivery
of the property. In this case it may be that the first ingredient of the section namely the deception
as alleged was the same but the second ingredient namely the delivery of the property being
numerous and on different occasions had nothing in common with one another either in sequence
of time or in unity of purpose to be a series of acts forming the same transaction as envisaged
under Section 235 Cr. P. C.

CONTENTIONS OF RESPONDENTS:

The respondent is represented by learned counsels S.N. Mulla, B.P. Gupta, Krishna kapoor and
Banarasi Das, Advs.

1. the learned counsel for the respondents contended that she was made to believe that Mukherji
is her husband by performing various marriages one before the moon, at kali temple and before
Guru Granth Sahib.

2. Whenever the complainant entertained any doubts about the validity of her moon marriage
either because of the culpable intimacy of the accused with other women or his subsequent cold
behaviour towards her he always represented to her that she was his lawfully wedded wife by
citing examples of Gandharva marriages from Hindu epics and by observing various
performances meant for a husband.

3. He also wrote numerous letters to the complainant on various occasions showing that he
treated her as his wife.

4. According to the prosecutrix she was possessed of considerable amount of cash and precious
jewelleries which she had received from her parents and the accused by various false pretences
of love cheated her of her money and jewelleries.

5. He used to look after her household affairs inasmuch as he arranged for her residence and
conveyance, looked after her bank accounts, deposited and withdrew money from the banks on
her behalf and cashed her cheques. As the complainant reposed implicit confidence in the
 P a g e | 16

accused whom she took as her husband she deposited a large amount of money on his advice
with the Calcutta Commercial Bank Ltd., and with M/s. H. Datta & Sons Ltd., who were the
managing agents of the aforesaid Bank. The accused had assured her when the money was given
to H. Datta & Sons Ltd. for deposit, that he was responsible for the safety of the money.

6. With the failure of Calcutta Commercial Bank Ltd., in September, 1948, and the collapse of its
managing agents H. Datta & Sons Ltd. soon thereafter, the complainant lost a sum of about Rs.
7,00,000/- which she had kept with them. Even after that, the accused kept on promising the
complainant that he would get back her money. On various occasions, the accused, on one
pretext or the other, took away the jewelleries of the complainant and returned only a part of it
after several demands and reminders.

7. Having deprived the complainant of her riches the accused began to show indifference to her
since 1950. Between 1950 and 1955 the accused treated the complainant with cruelty and
occasionally tortured her. But whenever she went out of Calcutta to Mussoorie and other stations
he entreated her to return. But on her return, she was subjected to the same cycle of ill-treatment
and then cajolery.

8. They contended about the charges under section 493 of IPC, that on the second fortnight of
February, 1940, on a full moon day the accused by deceit caused Smt. Harbans Kaur, who was
not lawfully married to you, to believe that she was lawfully married to accused, in that belief,
she cohabited or had sexual intercourse with him; and that he thereby committed an offence
punishable under section 493 IPC and within the cognizance of the court.

9. all the prosecution witnesses gave their witness which matches the story of the complainant
and them living together since 1940 and also regarding their marriage.

10. he prosecutrix has stated that whenever she heard that the accused was fraternising with some
other women she used to write to him raising a protest and the accused after repudiating the
allegation tried to explain his conduct and asked her forgiveness. The accused has admitted that
the prosecutrix used to make wild, imaginary and untrue allegations with regard to his
association with other women.
 P a g e | 17

11. During these years the accused has addressed legions of letters to the prosecutrix although
they were living mostly In the same city. he accused used to address and refer the complainant ki
his letters as "My dear one", "May it please your Highness," " Hello My dear Harbans",
"Darling", "Maharani Cooch Parwahni", and "Pagli" and used to close them sometimes with the
words "with every love, good wishes and hopes", "Ever Yours", "Always Yours" and "Your
always". No one addresses a young wife of the friend as "My Darling", "A-1" and subscribes
himself to be always 'hers'. Such terms of endearments are not used while addressing letters to
the wife of a friend. Such expressions generally find place in letters addressed by lovers to their
beloved.

12. he evidence on the record discloses that the accused made arrangements for the residence of
the prosecutrix, sent letters, issued and obtained receipts, collected mails, paid electric bills and
rent on her behalf, employed servants and Darbans for her and engaged lawyers to fight out her
cases. Sometimes he even collected her clothes from washer men, purchased hair oil and toilet
for her and arranged for the safety of her house. In addition, he managed all other household
affairs of the prosecutrix.

13. In the suit filed by Sujan Singh for the dissolution of his marriage, the accused was a co-
respondent with the prosecutrix, but did not enter appearance to repudiate the allegation of
adultery made against him. All this evidence direct and circumstantial can lead to no other
conclusion but that the story of the prosecutrix that the accused had sexual connections with her
for such a long period is absolutely true.

14. she gave him various amounts to him at different occasions and a jewelleries. Of which he
misused them and she never bothered to ask about the returns.

15. On the 5th of August, 1957, Smt. Harbans Kaur had instituted against Dr. A. N. Mukerji for
recovery of a sum of Rs. 7,59,469/- and another suit on the 12th day of September, 1957, for the
recovery of a sum of Rs. 2,00,000/- as damages by reason of the wrongful breach of his promise
to marry her. Km. Sureila Mukerji alias Neena, daughter of the prosecutrix, had also instituted
suit No. 1163 of 1957 of July, 1957, through her mother against Dr. Mukerji claiming a sum of
Rs. 18,000/- as arrears of maintenance and future maintenance @ Rs. 600/- per month. In May,
 P a g e | 18

1958. Dr. Mukerji had also instituted suit for the recovery of Rs. 48,988.37 P. from the
prosecutrix on account of loan advanced to her from time to time.

CASES REFERRED:

The case referred in this case is Deivan Achi v. Chidambara Chettiar1, AIR 1954 Mad 657.

A Hindu marriage can be solemnized only with ceremonies prescribed by Shastras or by custom,
when recourse is not had to the procedure under the Special Marriage Act, 1954. If the parties do
not observe any ceremonies whatever, there is no valid marriage.( Mahila Gumani v. Ram
Dayal2, 1953 MB 159.)

In Deivain Achi v. Chidambara Chettiar, AIR 1954 Mad. 657, this question has been
considered at length by two learned judges of the Madras High Court, Satyanarayanarao and
Rajagopalan, JJ. The marriage ceremony consisted of an exchange of garlands between the bride
and the bridegroom. The parties belonged to an Anti-Purohit Association of Self Respecters. The
association was opposed to having priests officiating at marriages. The parties, therefore,
according to the practice of that Association in the presence of their friends and invitees
exchanged garlands. It was contended that this was sufficient for a valid marriage.

The contention was rejected and it was held that the customary ceremonies cannot be altered
except by legislation such as the Special Marriage Act. The alteration cannot be made by a
society or association of recent date. So it was held that the marriage was void.

In Ram Saran v. Mahabir Seivak3, AIR 1934 PC 74, there was a Katar Marriage (i.e. Marriage
to a sword). The bridegroom who was Kshatriya sent his sword and the marriage was performed
with the sword. It was held that such a marriage was not valid. Lord Thankerton rejected the
claims of the issues of the marriage to succession to their father’s Zamindari on the ground that
they were illegitimate issue. This decision of the Privy Council emphasises the need for strictly

1
AIR 1954 Mad 657.
2
1953 MB 159.
3
AIR 1934 PC 74
 P a g e | 19

observing the religious ceremonies to create the marital tie. There may of course be a custom
which dispenses with the need for observing the traditional religious ceremonies.

Thus, In re Ponuswami4, AIR 1950 Mad. 777, Chandra Reddy, J., held that the tying of a tali
in the presence of an idol in the temple was a form of customary marriage and that even without
any priests to officiate at the ceremony. There was thereby a complete marriage. The learned
judge accordingly upheld a conviction for bigamy when the second marriage was thus
celebrated.

JUDGEMENT OF LOWER COURT:

1. On 11th of August 1958, Smt. Harbans Kaur filed her petition of complaint against Dr.
Mukerji in the court of a Magistrate First Class at Calcutta praying that he be tried for offences
under Sections 493, 496 and 417 of the Indian Penal Code. After undergoing many vicissitudes
her complaint resulted in the commitment of Dr. Mukerji to the court of sessions at Calcutta to
stand his trial under Section 493 I. P. C.

2. On an application by the prosecutrix the case was, however, transferred from West Bengal to
the Court of the Sessions Judge, Varanasi, for trial. The learned Sessions Judge, Varanasi,
amended the charge under Section 493 I. P. C. and added charges under Sections 376 and 417
I. P. C. and the trial proceeded against the accused in respect of those charges, He was acquitted
on the first two counts but was convicted under Section 417 I. P. C. The trial Judge has ordered
"that out of the fine realized two-third (Rs. 50,000/-) shall be paid" to the complainant as
compensation.

3. the aggrieved party applied for an appeal in the High Court of Allahabad challenging the order
of trail judge that the trail court is not competent to issue such orders under section 419 of IPC
considering the issues based on other two contentions.

4
AIR 1950 Mad. 777
 P a g e | 20

JUDGEMENT OF HIGH COURT:

1. The judges of High Court bench were not impressed, however, by the assertion of the
prosecutrix that the accused had performed mock marriages with her on three occasions and had
thereby induced her to believe that she was his legally wedded wife and duty bound to cohabit
with him.

2. They are of the opinion that the prosecutrix was about 30 years of age in 1940 and a mother of
four children. Her husband was an officer in the Railway and she had been living with him since
the last several years. She had mixed in society of Railway Officers and was able to come alone
to Calcutta and make arrangements for her stay. She is educated and had stayed In first class
hotels at Calcutta and other places. She along with her husband attended dancing and drinking
parties in hotels frequented by the aristocratic sections of Calcutta society before she alleges to
have come under the evil influence at the accused. She was not an illiterate, rustic,
unsophisticated village damsel ignorant of the ways of the world. It is, therefore, incredible that
she could have been persuaded by the accused to believe that she could be the wife of another
person during the subsistence of her marriage with Sujan Singh even if some mock performances
were held with her.

3. The story of the prosecutrix that the accused had first married her before moon in February.
1940, and then again In June, 1948, in the Kali temple according to Hindu rites and before Guru
Granth Sahib according to Sikh faith has not been corroborated by any reliable evidence on the
record. Surjit Singh who has corroborated her about the moon marriage and Genda Singh who
has spoken about the marriage before Guru Granth Sahib have not been relied upon by the
learned trial Judge for good reasons. The trial Judge has also held the testimony of Munshi Hari
Chand about the alleged performance at Kali temple as unreliable.

4. The judges said that, We are not called upon to determine the genuine or fictitious nature of
these transactions nor it is within our province to determine the inter se liabilities of the parties.
We must, however, observe that the evidence indicates that there have been numerous monetary
transactions between the parties during these long years and they have received from and paid to
one another various amounts from time to time. The dispute if any, between them in respect of
 P a g e | 21

those transactions is of a civil nature which is being agitated in the High Court at Calcutta. The
evidence, however, falls short of bringing out any case of cheating against the accused.

5. They observed that whatever may have been the peculiar circumstances, the trial Judge was
not justified in bringing on record such irrelevant and inadmissible evidence as it was his duty to
have kept the proceedings within the bounds of law.

6. They declared that the conviction and sentences of appellant Dr. Amar Nath Mukerji as
recorded by the trial Judge are set aside. His bail bonds are discharged and fine if paid, shall be
refunded to him.