IN THE HON’BLE HIGH COURT OF BOMBAY AT MUMBAI :
MAHARASTRA STATE
Criminal Appeal No. ---- of 2024
In
CC.NO. ----- of 2024
BETWEEN
Kevin
S/o Joseph, Aged about : 37,
Occupation : Business,
Shivam Heights, Andheri East 302,
Mumbai, Maharashtra – 400059
…….Appeallant/ Accused
AND
State of Maharastra,
Rep. by its Public Prosecutor,
Andheri Police station,
Mumbai, Maharashtra
…..Respondant/ Complainant
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CRIMINAL APPEAL FILED ON BEHALF OF THE APPEALLANT/ACCUSED
UNDER SECTION 415 (2) OF BNSS
Memorial submitted on behalf of Appellant
1. Table of contents
S.NO CONTENTS Pg.No
1. LIST OF ABBREVIATION
2. INDEX OF AUTHORITY
a. Cases referred
b. Books referred
c. Statutes referred
d. Websites Referred
3. Statement of Jurisdiction
4. Statement of Facts
5. Statement of Issues
6. Arguments
7. Prayer
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2. Index of Authority
a. Cases Referred
1. Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra &
Anr on 1 February, 1965: 1965 AIR 1564
2. Surjit Kaur v. Garja Singh, AIR 1994 SC 135.
3. Shri Ram vs. State of U.P. (1975) 3 SCC 495
4. State of Kerala v. M.M. Manoharan, (2001) SCC (Cri) 1307
5. State Of Madhya Pradesh vs Dharkole @ Govind Singh & Ors,
2004, AIR 2005 SUPREME COURT 44
b. Books referred
1. ParasDiwan: ModernHinduLaw,AllahabadAgency, Delhi.
2. Mayne:HinduLaw-CustomsandUsages,BharatLawHouse,New
Delhi.
3. BNS, 2023 Bare Act
4. Avatar Singh: Principles of the Law of Evidence, Central Law
Publications
5. Mulla,TheCodeofCivilProcedure,LexisNexis,Butteworths,Wadh
wa
6. Tiwari:Drafting,PleadingandConveyancing,CentralLawAgenc
y
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c. Statutes referred
1. BNS, 2024
2. Hindu Marriage Act, 1955
d. Websites Referred
1. WWW. IndianKhannon.com
2. WWW. Casemine.com
3. WWW. Livelaw.com
List of Abbreveations
1. AIR – All India Reporter
2. SCC – Supreme Court Cases
3. BNS - Bharatiya Nyaya Sanhita
4. Vs - Verses
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3.Statement of Jurisdiction
All Appellant/ Accused preferred the present appeal before the
Hon’ble High court of Telangana, Hyderabad under section 415 (2)
OF BNSS.
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4. Statement of Facts
1. Steffi and Kevin were married in 2019, the couple lived
together in Mumbai until 2023. But their relationship
deteriorated due to Kevin's extramarital affair with Mansi.
2. Despite Steffi's objections, Kevin married Mansi in October
2024 in a private ceremony while still legally married to Steffi,
an act of bigamy under Section 82 of the Bharatiya Nyaya
Sanhita (BNS) 2023.
3. Kevin’s younger brother named, Amit and several of his friends
attended the wedding.
4. One of Kevin’s friends, Abdul, actively helped to organize the
wedding and arranged it, despite of knowing about Kevin’s
existing marriage.
5. She also accused Abdul and Amit of aiding and abetting the
offence
6. A case was registered against Kevin, his brother and Abdul
under Section 82, Section 45 read with Section 3(5) of BNS
2023. All the accused were arrested by Police from their
residences.
7. Steffi filed a complaint, leading to the arrest and trial of Kevin,
Amit, and Abdul. Further investigation revealed Mansi
instigated the marriage through threats.
8. The Sessions Court convicted Kevin under Section 82 and all
three defendants under Section 49, sentencing them to 7
years imprisonment and a Rs. 50,000 fine.
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5. Statement of Issues
1. Is Kevin guilty of bigamy under Section 82 of BNS?
2. Can Abdul and Amit who were present at the second
marriage be made liable under Section 45 read with Section 3(5)
BNS?
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6. Arguments Advanced
On behalf of Appeallant/ Accused
ISSUE – ONE:
1. Is Kevin guilty of bigamy under Section 82 of BNS? As per the
Hindu Marriage Act, 1955 (section 7) speaks that the marriage
performed according to Hindu rituals and ceremonies is valid
marriage. Saptapadi is an essential ceremony which is not
performed in second marriage. Neither performed any essential
ceremony nor rituals of hindu custom. Therefore, the marriage
subsequently performed is not at all a marriage in the eyes of law.
According to section 82 of ( BNS) there should be second marriage
performed by either spouse to constitute bigamy.
2. As per Hindu Marriage Act, 1955, Section 7. Ceremonies for a
Hindu marriage.— A Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either
party thereto. Where such rites and ceremonies include the
Saptapadi (that is, the 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
3. In the case of Bhaurao Shankar Lokhande & Anr vs State Of
Maharashtra & Anr on 1 February, 1965: 1965 AIR 1564, the mere
admission by the respondant that he had contracted second
marriage is not enough. The impugned marriage must have been
solemnised that is the marriage should have been celebrated or
performed with proper ceremonies. And in due form. This case
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emphasized that the second marriage must be valid in the eyes of
the law to constitute bigamy.
4. Essential ceremonies required for bigamy - In
Surjit Kaur v. Garja Singh, AIR 1994 SC 135. If the marriage is not a
valid marriage, it is no marriage in the eyes of law. If the marriage is
not a valid one according to the law applicable to the parties, no
question of its being void by reason of its taking place during the
life of the husband or wife of the person marrying arises. Having
regard to section 17 of the Act the essential ceremonies set out
under the Act had not been conducted and merely because there
was distribution of sugar or gur it would not constitute a valid
marriage.
5. In the light of above arguments regarding issue no.1 Kevin is not
guilty of bigamy of section 82 of BNS. And the earlier conviction
passed by the lower court is not just and fair in the eyes of law in the
interest of justice.
ISSUE – TWO
6.Can Abdul and Amit who were present at the second marriage
be made liable under Section 45 read with Section 3(5) BNS? In
Amit's presence at the wedding ceremony does not automatically
equate to abetment. He simply attended the event, which is not a
criminal act in itself. There is no evidence to suggest that he actively
participated in the planning, organization, or execution of the
marriage ceremony. His presence alone does not demonstrate any
intent to facilitate the offense. Amit did not perform any actions
that directly contributed to the solemnization of the second
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marriage. He did not conduct any rituals, sign any documents, or
otherwise play an active role in the ceremony.
7. Shri Ram vs. State of U.P. (1975) 3 SCC 495. In this case clarified
that abetment requires active participation, instigation, or aid.
Mere knowledge or passive consent is insufficient. This supports the
argument that Amit's presence alone, without any active role, does
not constitute abetment.
8. Burden of Proof - State of Kerala v. M.M. Manoharan, (2001) SCC
(Cri) 1307. This case reiterates the fundamental principle that the
burden of proof lies with the prosecution to prove the accused's
guilt beyond a reasonable doubt.
9. This means that the prosecution cannot simply rely on Amit's
presence at the scene of the crime. They must present concrete
evidence that demonstrates his active participation and criminal
intent. This supports the argument that the prosecution must
provide concrete evidence of Amit's active involvement, not just
his presence. State Of Madhya Pradesh vs Dharkole @ Govind Singh
& Ors, 2004, AIR 2005 SUPREME COURT 44. In a criminal case, the
standard of proof required is truth beyond reasonable doubts yet
there is no absolute standard of ''reasonable doubt''.
A reasonable doubt is fair, based on reasons and must grow out of
evidence in the case. The concept of probability can not be
expressed with mathematical precision as it involves subjective
elements and it rests on common sense. A judicial evaluation of
totality of evidence and not isolated scrutiny is necessary. While it is
necessary that proof beyond reasonable doubt should be
adduced in all criminal cases.
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There fore in the light of a foresaid mentioned decisions laid by the
apex court and various high courts it is clear that the accusation
shall be proved beyond reasonable doubt. The presumption of
innocence in criminal case is in favour of accused. Unless and until
it is proved by prosecution beyond reasonable doubt he is
innocent. The trail court convicted Amit and Abdul in this case
without sufficient evidence. Neither they produced the
documentary nor oral evidence.
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7.Prayer
Therefore, in the light of the facts stated, issues raised, arguments
advanced and authorities cited, the Hon’ble High Court may be
pleased to:
1. To set aside the conviction passed by the trail court upon all
the accused.
2. To declare Kevin not guilty of offence of bigamy under section
82 of BNS.
3. To declare Abdul and Amit are not guilty of offence of
abetment under section 45 of BNS read with 3(5).
4. Pass such other orders or directions as this Hon’ble Court may
deem fit and proper in the interest of justice, equity, and good
conscience.
Sd/-
COUNSEL FOR APPEALANT
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