Narumal vs State of Bombay
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Appeal (crl.) 143 of 1955
Decision Date: 25 November 1959
Coram: B.P. Sinha, P.B. Gajendragadkar, K. Subbarao, K.C. Das Gupta, J.C. Shah
In this case the Supreme Court considered an appeal that had been filed under a certificate granted by the Bombay High Court in accordance with Article 134(1)(c) of the Constitution. The appeal challenged both the validity and the correctness of the order of the High Court that had convicted the appellant, Narumal Holaram Sindhi, under Section 5 of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 (Act XXV of 1946), and had sentenced him to a term of six months’ rigorous imprisonment. The prosecution alleged that on 9 September 1953 the appellant had contracted a second marriage at Khandwa in Madhya Pradesh with a woman named Vishna Devi while his first wife was still alive and had not been divorced, thereby rendering him liable for punishment under Section 5 of the Act. The prosecution also charged the second wife, Vishna Devi, with an offence under Section 6 of the same Act.
The trial was conducted before a Judicial Magistrate, First-Class, Second Court, Nasik. The magistrate held that the appellant had indeed contracted a bigamous marriage which was void under Section 4(b) of the Act and that the second wife had abetted the solemnisation of that marriage; consequently, the magistrate found that the appellant and his second wife had committed the offences prescribed in Sections 5 and 6 respectively. However, the magistrate also concluded that he lacked jurisdiction to try the offence. On that basis he acquitted both the appellant and the second wife under Section 258(1) of the Code of Criminal Procedure.
The State of Bombay appealed the magistrate’s order before the Bombay High Court. The High Court, relying on its earlier decision in Radhabai Mohandas v. State of Bombay, 1955 ILR (Bom) 1039 :(S) 1955 AIR (Bom) 439, held that the trial magistrate was competent to try the case and therefore reversed the finding of lack of jurisdiction. On the merits, the High Court affirmed the magistrate’s factual finding that a bigamous marriage had occurred and consequently convicted the appellant under Section 5 of the Act. After the conviction the appellant obtained a certificate of appeal from the High Court and brought the matter before this Court.
On behalf of the appellant, counsel raised two questions for consideration. The first question asserted that both Section 4(b) and Section 5 of the Act were beyond the legislative competence of the Provincial Legislature and therefore ultra vires. The second question, alternatively, submitted that even if those sections were valid, the High Court erred in holding that the trial magistrate possessed jurisdiction to try the offence. These arguments formed the core issues that the Supreme Court was asked to resolve.
In this appeal, counsel for the appellant argued that even if Sections 4(b) and 5 of the statute were constitutionally valid, the High Court had erred in concluding that the trial magistrate possessed jurisdiction to try the case. The appellant pointed out that both of these questions had already been examined by the High Court in the earlier decision of Radhabai Mohandas (1955 ILR (Bom) 1039 : (S) 1955 AIR (Bom) 439). In that case the Court held that the Provincial Legislature was competent to enact Sections 4(b) and 5 of the Act and that, under Section 8 of the same Act, the trial magistrate was consequently given jurisdiction to try the offence. Subsequently, the issue concerning the constitutional validity of Sections 4(b) and 5, which had been decided in Radhabai Mohandas, was referred to a Full Bench of the High Court in The State v. Narayandas Mangilal Dayame (1957 ILR (Bom) 880 : 1958 AIR (Bom) 68). That Full Bench reversed the earlier decision, holding that Section 4(b) was ultra-vires and, as a result, the penal provision of Section 5 could not apply to marriages contracted outside the State. Counsel for the appellant relied on this Full Bench ruling to support his first contention.
The second contention raised by the appellant concerned the constitutional validity of the relevant provisions of the Act, which raised an important question about whether the State Legislature had the power to enact provisions that the appellant described as extra-territorial and therefore beyond its competence. The Court, however, concluded that it was unnecessary to decide this issue in the present appeal because, after the enactment of the Hindu Marriage Act, the statute in question had been repealed, rendering any decision on the validity of its two provisions merely academic. The Court noted that it would have addressed the validity question if it were essential to resolve the appeal, but for reasons to be explained later, it found the High Court’s view on the trial magistrate’s jurisdiction to be erroneous even assuming the provisions were intra-vires. Consequently, the Court decided not to consider the first contention further. Counsel for the respondent, having observed that the State no longer wished to obtain a decision on the validity of the impugned sections in view of the repeal, indicated that the matter was no longer of practical importance. Accordingly, the Court proceeded to examine the magistrate’s jurisdiction to try the case, operating on the assumption that both Sections 4(b) and 5 of the repealed Act were intra-vires.
In this part of the judgment the Court began by analysing the structure of the legislation that had been enacted to prevent bigamous marriages among Hindus throughout the Province of Bombay. The Act was enacted for that purpose and its territorial extent covered the entire Province. Section 3, subsection (1) defined a “bigamous marriage” as a marriage that is entered into by a person while his or her spouse is still alive, provided that the earlier marriage has not been dissolved or declared void by a court having competent jurisdiction, and that the marriage is not void under the custom or usage of the community to which either party belongs. Section 4 declared that any marriage falling within that definition was void, irrespective of any contrary law, custom or usage. Section 4 distinguished two categories of void bigamous marriages. Sub-section (a) applied to a marriage that was contracted within the Province after the Act came into force. Sub-section (b) applied to a marriage that was contracted outside the limits of the Province after the Act came into force, where one or both of the parties were domiciled in the Province. The present dispute concerned the application of sub-section (b). The High Court had held that the marriage between the appellant and his wife fell within the ambit of that clause and therefore was void.
Section 5 prescribed the penalty for a bigamous marriage that was void under Section 4. It provided that, notwithstanding any law, custom or usage to the contrary, any person who was not a minor and who contracted such a void bigamous marriage would be deemed to have committed an offence under Section 494 of the Indian Penal Code. Section 6 fixed a penalty for the person who solemnised a bigamous marriage within the Province of Bombay. Section 7 dealt with the liability of a person who had charge of a minor who entered into a void bigamous marriage. Sub-section (1) of Section 7 stated that when a minor contracted a void bigamous marriage, any person who had charge of the minor—whether as a parent, guardian or in any other capacity, lawfully or unlawfully—who either promoted the marriage, allowed it to be solemnised, or who negligently failed to prevent it, would be punished in the manner prescribed. Sub-section (2) created a statutory presumption, the details of which need not be repeated here. It was clear that Section 7 covered an offence that could be committed either inside or outside the Province of Bombay.
Section 8 dealt with jurisdiction. In its original form, Section 8 provided that, notwithstanding anything in Section 190 of the Code of Criminal Procedure, no court other than the Presidency Magistrate’s Court or a First-Class Magistrate’s Court could take cognizance of or try any offence punishable under Sections 6 or 7 of the Act. Section 9 made the offences under the Act cognizable. Consequently, the original Section 8 conferred jurisdiction on the specified magistrates to try offences under Sections 6 and 7, but it did not contain a provision for trying offences under Section 5. Those offences were treated as analogous to offences under Section 494 of the Indian Penal Code and were apparently left to be tried under the provisions of the Code of Criminal Procedure.
In the original statute, the provision for trying offences under sections six and seven was limited to magistrates of the Presidency or magistrates of the First Class, but there was no similar provision for offences under section five. Those offences were treated as comparable to offences under section four hundred ninety-four of the Indian Penal Code and were apparently left to be tried under the general provisions of the Code of Criminal Procedure. Subsequently, the Bombay Legislature enacted amendment Act thirty-eight of 1948, which received the Governor General’s assent and came into force on April twentieth, 1948. That amendment altered several sections of the principal Act, and the present discussion concerns the amendments to sections five and eight. Section five was amended to prescribe a specific punishment for offences falling within its scope: a conviction would now be punishable by imprisonment for a term that could extend to seven years and also by a fine. In effect, the earlier reference in the original section to the punishment prescribed in section four hundred ninety-eight of the Indian Penal Code was removed, and the statute itself now expressly provided the punishment.
The amendment also addressed the trial of offences under section five by inserting a new section eight, while the original section eight was redesignated as section eight-A. The newly inserted section eight states that, notwithstanding anything contained in the Code of Criminal Procedure, an offence under section five may be tried by any court of a Presidency Magistrate or a magistrate of the First Class. This is the provision that must be interpreted in the present appeal. Section eight-A, which did not replace the original section eight but was added alongside it, declares that, notwithstanding anything contained in the Code of Criminal Procedure, no court inferior to that of a Presidency Magistrate or a magistrate of the First Class shall try any offence punishable under sections six or seven. It is notable that the non-obstante clause in section eight-A differs from that in the original section eight because it removes the specific reference to section one hundred ninety of the Code of Criminal Procedure and instead refers generally to the Code of Criminal Procedure. Moreover, the substantive language changes from “no court other than that of the Presidency Magistrate” to “no court inferior to that of the Presidency Magistrate.” These amendments embodied in section eight-A are therefore relevant, material, and must be taken into account when construing section eight.
The High Court held that, as the amended section eight now reads, any magistrate of the First Class possesses jurisdiction to try an offence under section five, and that the defence that the offence was committed outside the territorial jurisdiction of the magistrate cannot be successfully raised. According to that view, the non-obstante clause effectively renders the provisions of section one hundred seventy-seven of the Code of Criminal Procedure inapplicable, thereby granting any magistrate specified in the section jurisdiction to try the offence under section five.
In the appeal, the Court observed that the High Court had concluded that the non-obstante clause in the amended section rendered section 177 of the Code of Criminal Procedure inapplicable, thereby giving any magistrate named in the provision jurisdiction to try an offence punishable under section 5. The High Court had been strongly influenced by the reasoning that, unless section 8 were interpreted in that manner, offences created by section 5 would remain unpunished, and it would be unreasonable to assume that the legislature, having created an offence through sections 5 read with 4(b), had failed to provide a mechanism for its punishment. The High Court further argued that without a trial mechanism for offences under section 5, both that section and section 4(b) would become pointless, a point that appeared persuasive at first glance.
Nevertheless, the appellant contended that, in weighing the importance of this consideration, the Court must examine the overall scheme of the Act and ascertain the legislative intent behind the enactment of sections 8 and 8A by the amending Act. Relying on the principle of harmonious construction, the appellant urged that sections 8 and 8A should be read together to determine the effect of the non-obstante clause appearing in both provisions. The appellant further submitted that, because the provision under construction was penal in nature, the Court should adopt the interpretation that was more favorable to the accused when faced with two plausible readings, one accepted by the High Court and another proposed by the appellant.
The Court then referred to the relevant provisions of the Code of Criminal Procedure. Section 5(2) stipulated that all offences created by any other law were to be investigated, inquired into, tried and otherwise dealt with in accordance with the Code, except where a specific enactment regulated the manner or place of such proceedings. Section 28(c) provided that, subject to other Code provisions, any offence under the Indian Penal Code could be tried by any court listed in the eighth column of Schedule II, which meant that an offence punishable under section 5 with a maximum of seven years’ rigorous imprisonment was triable by a Court of Session. Section 29(1) mandated that, subject to other Code provisions, an offence under any other law should be tried by the court expressly mentioned in that law. Finally, the Court noted section 177, which required that every offence ordinarily be investigated and tried by a court within the local limits of the jurisdiction where the offence was committed, a general rule applied to all criminal trials unless the special statute explicitly indicated a departure from this principle.
The provision is of general application and governs every criminal trial that is conducted under the provisions of the Code of Criminal Procedure. It is true that the section employs the word “ordinarily”, but it is not contested that this word is to be understood as meaning “except where provided otherwise in the Code” (see Ram Narayan Baburao Kapur v. Emperor, 1937 ILR (Bom) 244 at p. 253; 1937 AIR (Bom) 186 at p. 190). There is no doubt that the State Legislature possesses the competence to prescribe a mode of trial for offences created by its own statutes that differs from that laid down in section 177 of the Code; however, such a departure must be unmistakably expressed in the relevant provision of the special statute. The question therefore arises whether section 8 of the Act is intended to make such a departure, and whether it is intended to empower the Presidency Magistrate or a First-Class Magistrate in the State of Bombay, as specified by the Act, to try offences that were committed outside the ordinary territorial jurisdiction of those courts. The construction of section 8A presents no difficulty. Although the non-obstante clause in this section refers to the Code of Criminal Procedure in general, its effect is not to alter the provisions of section 177 of the Code. The sole purpose of the said section is to exclude the jurisdiction of the Second and the Third Class Magistrate to try offences punishable under sections 6 and 7. Had the jurisdiction to try those offences been left to be determined by reference to the Code of Criminal Procedure, even the specially empowered Second and Third Class Magistrates would have been competent to try them under section 190 of the Code. The Legislature evidently desired that such offences not be tried by a court inferior to a Presidency Magistrate or a First-Class Magistrate. In the case of Radhabai Mohandas, 1955 ILR (Bom) 1039; 1955 AIR (Bom) 439, the Bombay High Court did not interpret section 8A as conferring power on the courts mentioned therein to try offences punishable under section 7 when those offences had been committed outside the territorial jurisdiction of those courts. Moreover, counsel for the State conceded that the effect of the non-obstante clause used in this section is not to depart from or override the normal territorial limitation prescribed by section 177 of the Code. To adopt a contrary view would be manifestly unreasonable. Consequently, the construction of section 8A leads inevitably to the conclusion that certain offences punishable under section 7, if committed outside the State of Bombay, cannot be tried or punished under section 8A. The Legislature must have been aware that section 7 includes offences that may be committed outside the State of Bombay, yet when it enacted the amending Act of 1948 it did not deem it necessary to provide for the trial and punishment of such offences. This position
The Court observed that the point under consideration has a material bearing on the construction of Section 8. It noted that if it is clear, and even admitted, that the amended Act does not provide for the trial and punishment of some offences that fall within Section 7, then the argument advanced by the appellant—that the construction of Section 8 would leave the offences listed in Section 5 without punishment—loses its decisive significance. The Court further pointed out that this very consideration was the one that weighed with the High Court when it decided the case of Radhabai Mohandas, reported in 1955 ILR (Bombay) 1039 and 1955 AIR (Bombay) 439. Turning to the construction of Section 8, the Court explained that the non-obstante clause contained in Section 8 is identical to the clause found in Section 8A and, therefore, under the rule of harmonious construction, it should ordinarily bear the same meaning. The Court held that if the non-obstante clause in Section 8A does not have the effect of overriding the provisions of Section 177 of the Code, there is no reason why the same result should necessarily follow from the identical clause in Section 8. In the Court’s opinion, both non-obstante clauses were intended to serve a similar purpose. The Court recalled that it had already shown that the non-obstante clause of Section 8A was meant to exclude the jurisdiction of the Second and Third Class Magistrates to try offences under Sections 6 and 7; a similar object was intended to be achieved by the non-obstante clause in Section 8. The Court observed that as soon as the offence under Section 5 was made punishable by the amending Act with seven years’ rigorous imprisonment and a fine, it became triable by a Court of Session under Schedule II of the Code. By enacting Section 8, the Legislature therefore intended that the same offence could also be tried by any Presidency Magistrate or a First-Class Magistrate. Consequently, the Court was disposed to hold that the Legislature’s purpose in enacting Section 8 by the amending Act was not to depart from the provisions of Section 177 of the Code but to modify the effect of Schedule II, under which offences under Section 5 were triable by a Court of Session, and to provide that they may also be tried by the courts specified in Section 8. The Court acknowledged that, on this construction, the Act does not appear to provide for the trial and punishment of offences under Section 5; however, the same situation applies to some offences punishable under Section 7, and therefore this consideration cannot override the ordinary rule of harmonious construction. The Court added that while it may be possible to speculate on why the Legislature left this lacuna in the Act, such speculation was unnecessary. Accordingly, the Court held that the High Court erred in reversing the trial magistrate’s finding that he lacked jurisdiction to try the case, and, in view of this conclusion, it was unnecessary to proceed further.
Having considered the foregoing discussion, the Court found that it was unnecessary to determine whether the challenged provisions of the Act were within the legislative power. Consequently, the appeal was allowed, the conviction and sentence imposed on the appellant were set aside, the appellant was ordered to be acquitted, and the bail bond that had been executed was cancelled. The judgment was delivered by Justice Subba Rao, who noted that he had carefully read the opinion authored by his colleague, Justice Gajendragadkar, and expressed regret that he could not concur with that judgment.
The factual background, as already detailed in the earlier judgment, can be summarized as follows: the appellant was an evacuee from Pakistan who, about fifteen years earlier, married a woman named Sitabai near Sukkar in Pakistan. Both spouses later migrated to Nasik, a town situated within the State of Bombay, where they continued to live together as a married couple and their marriage remained undissolved. On 9 September 1953, the appellant entered into a second marriage with a woman named Vishnadevi; this ceremony was conducted at Khandwa, a location outside the territorial limits of the State of Bombay. Both the appellant and Vishnadevi were employed as teachers in a Sindhi primary school that was administered by the Nasik Municipality, both before and after the second marriage. The appellant was subsequently charged with the offence of bigamous marriage before the Court of the Fourth Joint Civil Judge and Judicial Magistrate, First Class, at Nasik. The magistrate found the appellant guilty of the offence but held that, because the marriage had taken place beyond the State of Bombay, the court lacked jurisdiction to try him, and therefore he was acquitted. On appeal before the High Court, the respondents contended that neither the appellant nor his second wife were domiciled in the State of Bombay and therefore could not be liable under the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, and further asserted that, since Khandwa lay outside the State, no court within Bombay could exercise jurisdiction over the matter. The High Court rejected both arguments, set aside the magistrate’s order of acquittal, convicted the appellant under Section 5 of the Act, and sentenced him to six months of rigorous imprisonment. After obtaining a certificate under Article 134(1)(c) of the Constitution, the appellant challenged the correctness of the High Court’s decision. For the purposes of this appeal, the Court assumed that Sections 4 and 5 of the Act were constitutionally valid. Section 4 provides: “Notwithstanding any law, custom or usage to the contrary, a bigamous marriage shall be void—(a) if it is contracted in this Province after the coming into force of this Act; (b) if it is contracted beyond the limits of this Province after the coming into force of this Act and either or both the contracting parties to such marriage are …”
Section 4 of the Act declares that a bigamous marriage is void when it is contracted by a person who is domiciled in this Province, even if the marriage is performed outside the limits of the Province after the Act has come into force. Section 5 adds that any person who is not a minor and who contracts a bigamous marriage that is void under Section 4 shall, upon conviction, be punished with imprisonment for a term that may extend to seven years and shall also be liable to pay a fine. Section 3(1) defines a “bigamous marriage” as a marriage entered into by a person during the lifetime of his or her spouse, where that earlier marriage has neither been dissolved nor declared void by a court of competent jurisdiction, and where the marriage is not considered void by the custom or usage of the community to which either party belongs. Applying these provisions to the present case, the law is clear that if a person who is domiciled in the State of Bombay contracts a bigamous marriage outside the territorial limits of the State, such marriage is void under Section 4 and the same person commits an offence punishable under Section 5. The Act therefore creates a distinct offence, specifying the elements that constitute the crime. The factual findings on record demonstrate that the appellant entered into a marriage that satisfies the statutory description of a bigamous marriage as defined above. Consequently, the appellant’s conduct falls squarely within the offence described in Section 5, making him liable to conviction and to the punishment prescribed therein.
The subsequent issue for determination was the proper forum for trying the appellant for the offence under Section 5. Section 8 of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence punishable under Section 5 may be tried by any Court of a Presidency Magistrate or by a Magistrate of the First Class. The language of this provision is straightforward and leaves no doubt: it authorises any Presidency Magistrate or any First-Class Magistrate to adjudicate a case arising from a breach of Section 5. Within the State of Bombay such magistrates exist, and therefore the statute expressly confers jurisdiction on them to try persons charged with the offence under discussion. When read together, Section 4 defines the offence, Section 5 sets the penalty, and Section 8 designates the competent courts, leaving no room for uncertainty about either the nature of the crime or the appropriate forum for its trial. Nevertheless, counsel for the appellant attempted to introduce a subtle argument aimed at creating a presumed ambiguity in Section 8, alleging that a comparison with other sections of the Act reveals a lacuna that must be resolved by a harmonious construction. To address this contention, the Court examined the relevant provisions, including Section 6, which states: “Whoever performs, conduces or abets any bigamous marriage in this Province shall,” thereby reaffirming the clear legislative intent and confirming that no interpretative gap exists.
The Court reproduced the language of Section 6, which provides that upon conviction a person shall be liable either to imprisonment of either description for a term that may extend to six months, or to a fine, or to both, unless the person can show that he had reason to believe the marriage was not bigamous. Section 7 was then set out. Sub-section (1) of Section 7 states that when a minor contracts a bigamous marriage that is void under Section 4, any person who has charge of the minor—whether as a parent, guardian, or in any other capacity, lawful or otherwise—who either promotes the marriage, permits it to be solemnised, or negligently fails to prevent its solemnisation shall, on conviction, be punishable with imprisonment of either description for a term that may extend to six months, or with a fine, or with both. Sub-section 2 of the same section provides that, for the purposes of the provision, it shall be presumed, unless and until the contrary is proved, that whenever a minor has entered into a bigamous marriage void under Section 4, the person who has charge of the minor, in any capacity, has negligently failed to prevent the marriage from being solemnised. The Court then read Section 8, which declares that notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), an offence under Section 5 may be tried by any Court of a Presidency Magistrate or a Magistrate of the First Class. Section 8A follows with a similar non-obstante clause, providing that notwithstanding anything in the Code of Criminal Procedure, 1898, no Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence punishable under Sections 6 or 7. The Court noted that Sections 8 and 8A had replaced the earlier Section 8 of the Bombay Act XXV of 1946 by virtue of Bombay Act XXXVIII of 1948. The argument presented by counsel was advanced in two respects: first, that the non-obstante clauses in both sections should be interpreted in the same manner; and second, that if the wording of Section 8 were read to grant jurisdiction to a Bombay Court over a bigamous marriage contracted outside the State of Bombay, then Section 8A would likewise have to be read to give the same effect, thereby potentially exposing persons not domiciled in Bombay to liability under the two sections. Regarding the first point, the Court observed that the original Section 8 did not create a special jurisdiction for a Magistrate to try the offence under Section 5, because, in its original form, Section 5 treated a person contracting a bigamous marriage as having committed an offence under Section 494 of the Indian Penal Code, and consequently the jurisdictional rules of that Code applied. However, the amendment enacted in 1948 introduced a new Section 8 that expressly conferred a special jurisdiction on any Court of a Presidency Magistrate or a Magistrate of the First Class to try the offence under Section 5.
Section 5 of the Act had been amended so that any reference to section 494 of the Indian Penal Code was removed. It was argued that the purpose of inserting section 8 was not to give any special jurisdiction but merely to give jurisdiction to a Presidency Magistrate or a First-Class Magistrate, who under the Code of Criminal Procedure, 1898, would not be competent to try the offence under the amended section 5 because only a Sessions Court could try an offence punishable with imprisonment of up to seven years. That may indeed have been one of the objects sought to be achieved by section 8, but the argument does not diminish the wide scope of jurisdiction that section 8 confers on the magistrates named therein. Section 8A begins with a non-obstante clause that excludes the jurisdiction of courts inferior to a Presidency Magistrate or a First-Class Magistrate to try any offence under sections 6 or 7 of the Act. It has been submitted that the object of section 8A was only to exclude the jurisdiction of second- and third-Class Magistrates and nothing more, and that in all other respects the jurisdiction of the court is governed by section 177 of the Code of Criminal Procedure, 1898. Accordingly, it was proposed that the object of section 8 should also be limited to the legislature’s attempt to confer jurisdiction on a Presidency Magistrate or a First-Class Magistrate, while in all other respects the jurisdiction would be governed by section 177 of the Code of Criminal Procedure, 1898. The Court found no justification for that method of construction and expressed no reason why section 8 should be controlled by section 8A. Section 6 imposes a penalty on any person who solemnises a bigamous marriage within the State, and section 7 imposes a penalty on any person who has charge of a minor—whether as a parent, guardian or in any other capacity, lawful or otherwise—who either promotes such a marriage, permits it to be solemnised, or negligently fails to prevent it. Both sections therefore create the offence of abetting a bigamous marriage. These provisions presuppose that the person abetting the marriage is domiciled in the State of Bombay; otherwise an essential condition for the validity of the sections—the domicile of the person providing the territorial nexus—would be missing, and the provisions would amount to extra-territorial legislation. Sections 4 and 5 deal with the actual participants in the offence of bigamous marriage, while sections 6 and 7 address the offence of abetment. Applying the principle of territorial nexus, which is assumed to govern these sections, the Court held that despite their wide phrasing, the provisions must be confined to persons who are domiciled in the State of Bombay and who abet the offence.
In this case the Court observed that the statutory provisions dealing with the contracting of a bigamous marriage that is solemnised outside the State of Bombay, or that involves persons who are not domiciled in the State of Bombay, are intended to apply only to individuals who actually enter the State of Bombay and then commit the offence. The provisions clearly do not extend to persons who are not domiciled in Bombay when the offence is committed wholly outside that State. Accordingly the Court held that the second objection raised by the appellant, which relied on the applicability of the provisions to such non-resident persons, could not be sustained because there was no legal basis for it. The Court then turned to a discussion of the rule of harmonious construction, a principle on which the appellant’s counsel had placed considerable reliance. Referring to the authoritative text “Craies on Statute Law”, Fifth Edition, page ninety-three, the Court quoted the passage that describes the rule: “It is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers … and this exposition is ex visceribus actus.” The Court explained that this rule of construction must never be used to alter the meaning of a provision that is clear and explicit on its face. The Court further cited the observation from Palmer’s Case (1784) 1 Leach C. C. (4th edit) 355, which states that the rule may be invoked only when a portion of an Act is obscure and other passages can shed light on that obscurity. Similarly, the House of Lords in Warburton v. Loveland (1831) 2 D. and Cl. 480 (500) held that no rule of construction can compel the introduction of another part of the statute simply to diminish the effect of a clear provision. The Court also referenced the remark of Selwyn, L.J., in In re London Marine Insurance Association, Smith’s Case (1869) 4 Ch. A. 611 (614), that it is not the duty of a court to devise ways to defeat the purpose of the legislature. From these authorities the Court reiterated the well-settled principle that where one part of a statute conveys a clear meaning, it may not be interpreted by reference to another part in order to curtail its operation. Applying this principle to the present matter, the Court noted that the case did not raise any question about the validity of sections six, seven or eight A of the Act. The Court further observed that sections four, five and eight could be read together in a harmonious manner without violating the language of the statute or implying any inconsistency on the part of the legislature. Conversely, accepting the appellant’s argument would introduce a discordant note into the latter group of sections—namely sections four, five and eight—thereby rendering the substantive provision incoherent.
In the matter before it, the Court observed that attempting to find a unifying thread of interpretation that would link the two separate groups of statutory provisions would be a futile exercise. The Court explained that each group of sections could be interpreted on its own terms without creating any inconsistency or disharmony between them. By allowing the provisions to be read independently, the Court affirmed that no conflict arose in the legislative scheme and that the statute did not contain any hidden void or gap that required filling.
The Court further held that this method of interpretation avoided the implication that the Legislature had acted incongruously in drafting the law. It also prevented the artificial creation of a lacuna where, in reality, the statute was complete and operative. Having reached this conclusion, the Court expressed agreement with the findings of the High Court, which had reached the same interpretive result, and accordingly ordered the dismissal of the appeal.
Following the view of the majority of the Court, the order of conviction and the sentence that had been imposed on the appellant were set aside. The appellate decision therefore resulted in the appellant being acquitted of the charges, and the earlier judgment of guilt was nullified.