If the marriage is not a valid marriage, it is no marriage in the eye of law: Supreme Court 1965

PETITIONER:
BHAURAO SHANKAR LOKHANDE & ANR.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ANR.
DATE OF JUDGMENT:
01/02/1965
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
RAMASWAMI, V.
CITATION:
1965 AIR 1564 1965 SCR (2) 837
CITATOR INFO :
R 1966 SC 614 (6,8)
R 1971 SC1153 (14)
R 1979 SC 713 (5)
ACT:
Indian Penal Code, 1860 (45 of 1860), s. 494-Whether second
marriage required to be ’valid’ for offence to be committedTherefore
whether essential ceremonies must be performedHindu
Marriage Act, 1955, s. 17-Marriage ’solemnised’-
Meaning of-Hindu.
Hindu Law-’Gandharva’ marriage-Whether usual essential ceremonies
necessary-Modification by custom considered.
HEADNOTE:
Appellant No. 1 was convicted of an offence under s. 494
I.P.C. (and appellant No. 2 of abetting him) for going
through a marriage which was, void by reason of its taking
place during the life-time of a previous wife.
It was contended on behalf of the appellants that in law it
was necessary for the prosecution to establish that the
alleged marriage had been duly performed in accordance with
the essential religious rites applicable to the form of
marriage gone through. On the other hand it was urged by
the State that for the commission of an offence under s.
494, it was not necessary that the second marriage should be
a valid one and a person going through any form of marriage
during the life-time of the first wife would commit the
offence; and that in any event, in the present case the
rites necessary for a ’Gandharva’ form of marriage, as
modified by custom prevailing among Maharashtrians, had been
duly observed.
HELD: (i) Prima facie, the expression ’whoever-marries’
in s. 494 must mean ’whoever-marries validly’ or ’whoevermarries
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, [839 C-D]
(ii) For a marriage between two Hindus to be void by virtue
of s. 17 of the Hindu Marriage Act, 1955, two conditions
are required to be satisfied, i.e. (a) the marriage is
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solemnised after the Act; and (b) at the date of such
marriage, either party has a spouse living. Unless the marriage
is celebrated or performed with proper ceremonies and
due form, it cannot be said to be ’solemnised’ within the
meaning of s. 17. Merely going through certain ceremonies,
with the intention that the parties be taken to be married,
will not make them ceremonies prescribed by law or approved
by any established custom. [839 G-H; 840 A-C]
(iii) The two ceremonies essential to the validity of a
Hindu marriage, i.e. invocation before the sacred fire and
sapatapadi, are also a requisite part of a ’Gandharva’
marriage unless it is shown that some modification of these
ceremonies has been introduced by custom in any particular
community or caste. It was not disputed that in the present
case these two ceremonies were not performed when the
appellant No. 1 married a second time and the evidence on
record did not establish that these essential ceremonies had
been abrogated by custom. The prosecution had therefore
failed to establish that the second marriage was performed
in accordance with the customary rites applicable. [840 H:
84 A-C; 843 E-G]
838
Mullas Hindu Law, 12th Edn. pp. 605 and 615, relied upon.
(iv) The facts that the two essential ceremonies may not
have been performed for a period of five or seven years
could not be said to have established a custom as
contemplated by s. 3(a) of the Hindu Marriage Act, 1955.
[843 C-E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 178 of
1963.
Appeal by special leave from the judgment and order dated
August 19, 1963, of the Bombay High Court in Criminal
Revision Application No. 388 of 1963.
S. G. Patwardhan and M. S. Gupta, for the appellants.
W. S. Barlingay, B. R. G. K. Achar for R. H. Dhebar, for
respondent No. 1.
The Judgement of the Court was delivered by
Raghubar Dayal, J. Bhaurao Shankar Lokhande, appellant No.
1, was married to the complainant Indubai in about 1956. He
married Kamlabai in February 1962, during the lifetime of
Indubai. Deorao Shankar Lokhande, appellant No. 2, is the
brother of the first appellant. These two appellants,
together with Kamlabai and her father and accused No. 5, a
barber, were tried for an offence under S. 494 I.P.C. The
latter three were acquitted by the Magistrate. Appellant
No. 1 was convicted under S. 494 I.P.C. and appellant No. 2
for an offence under S. 494 read with S. 114 I.P.C. Their
appeal to the Sessions Judge was dismissed. Their revision
to the High Court also failed. They have preferred this
appeal by special leave.
The only contention raised for the appellants is that in law
it was necessary for the prosecution to establish that the
alleged second marriage of the appellant No. 1 with Kamlabai
in 1962 had been duly performed in accordance with the
religious rites applicable to the form of marriage gone
through. It is urged for the appellants that the essential
ceremonies for a valid marriage were not performed during
the proceedings which took place when appellant No. 1 and
Kamlabai married each other. On behalf of the ’State it is
urged that the proceedings of that marriage were in
accordance with the custom prevalent in the community of the
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appellant for gandharva form of marriage and that therefore
the second marriage of appellant No. 1 with Kamlabai was a
valid marriage. It is also urged for the State that it is
not necessary for the commission of the offence under S. 494
I.P.C. that the second
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marriage be a valid one and that a person going through any
form of marriage during the life-time of the first wife
would commit the offence under s. 494 I.P.C. even if the
later marriage be void according to the law applicable to
that person.
Section 494 I.P.C. reads :
“Whoever, having a husband or wife living,
marries in any case in which such marriage is
void by reason of its taking place during the
life of such husband or wife, shall be
punished with imprisonment of either descrip
tion for a term which may extend to seven
years, and shall also be liable to fine.”
Prima facie, the expression ’whoever…. marries’ must mean
’whoever marries-validly’ or ’whoever…. marries and whose
marriage is a valid one’. 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. If the marriage is not a valid marriage,
it is no marriage in the eye of law. The bare fact of a man
and a woman living as husband and wife does not, at any
rate, normally give them the status of husband and wife even
though they may hold themselves out before society as
husband and wife and the society treats them as husband and
wife.
Apart from these considerations, there is nothing in the
Hindu law, as applicable to marriages till the enactment of
the Hindu Marriage Act of 1955, which made a second marriage
of a male Hindu, during the life-time of his previous wife,
void. Section 5 of the Hindu Marriage Act provides that a
marriage may be solemnized between any two Hindus if the
conditions mentioned in that section are fulfilled and one
of those conditions is that neither party has a spouse
living at the time of the marriage. Section 17 provides
that any marriage between two Hindus solemnized after the
commencement of the Act is void if at the date of such
marriage either party had a husband or wife living, and that
the provisions of ss. 494 and 495 I.P.C. shall apply
accordingly. The marriage between two Hindus is void in
view of s. 17 if two conditions are satisfied : (i) the
marriage is solemnized after the commencement of the Act;
(ii) at the date of such marriage, either party had a spouse
living. If the marriage which took place between the appellant
and Kamlabai in February 1962 cannot be said to be
’solemnized’, that marriage will not be void by virtue of s.
17 of the Act and s. 494 I.P.C. will not apply to such
parties to the marriage as had a spouse living.
L4Sup./65-7
840
The word ’solemnize’ means, in connection with a marriage,
’to celebrate the marriage with proper ceremonies and in due
form’, according to the Shorter Oxford Dictionary. It
follows, therefore, that unless the marriage is ’celebrated
or performed with proper ceremonies and due form’ it cannot
be said to be ’solemnized’. It is therefore essential, for
the purpose of s. 17 of the Act, that the marriage to which
s. 494 I.P.C. applies on account of the provisions of the
Act, should have been celebrated with proper ceremonies and
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in due form. Merely going through certain ceremonies with
the intention that the parties be taken to be married, will
not make them ceremonies Prescribed by law or approved by
any established custom.
We are of opinion that unless the marriage which took place
between appellant no. 1 and Kamlabai in February 1962 was
performed in accordance with the requirements of the law
applicable to a marriage between the parties, the marriage
cannot be said to have been ’solemnized’ and therefore
appellant no. 1 cannot be held to have committed the offence
under s. 494 I.P.C.
We may now determine what the essential ceremonies for a
valid marriage between the parties are. It is alleged for
the respondent that the marriage between appellant no. 1 and
Kamlabai was in ’gandharva’ form, as modified by the custom
prevailing among the Maharashtrians. It is noted in Mullas
Hindu Law, 12th Edition, at p. 605 :
“The Gandharva marriage is the voluntary union
of a youth and a damsel which springs from
desire and sensual inclination. It has at
times been erroneously described as an
euphemism for concubinage. This view is based
on a total misconception of the leading texts
of the Smritis. It may be noted that the
essential marriage ceremonies are as much a
requisite part of this form of marriage as of
any other unless it is shown that some
modification of those ceremonies has been
introduced by custom in any particular
community or caste.”
At p. 615 is stated :
“(1) There are two ceremonies essential to the
validity of a marriage, whether the marriage
be in the Brahma form or the Asura form,
namely
(1) invocation before the sacred fire, and
841
(2) saptapadi, that is, the taking of seven
steps by the bridegroom and the bride jointly
before the sacred fire.
(2) A marriage may be completed by the
performance of ceremonies other than those
referred to in subsection (1), where it is
allowed by the custom of the caste to which
the parties belong.”
It is not disputed that these two essential ceremonies were
not performed when appellant no. 1 married Kamlabai in
February 1962. There is no evidence on record to establish
that the performance of these two essential ceremonies has
been abrogated by the custom prevalent in their community.
In fact, the prosecution led no evidence as to what the
custom was. It led evidence of what was performed at the
time of the alleged marriage. It was the counsel for the
accused in the case who questioned certain witnesses about
the performance of certain ceremonies and to such questions
the witnesses replied that they were not necessary for the
’gandharva’ form of marriage in their community. Such a
statement does not mean that the custom of the community
deemed what took place at the ’marriage’ of the appellant
no. 1 and Kamlabai, sufficient for a valid marriage and that
the performance of the two essential ceremonies had been
abrogated. There ought to have been definite evidence to
establish that the custom prevalent in the community had
abrogated these ceremonies for such form of marriage.
What took place that night when appellant no. 1 married
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Kamlabai, has been stated thus, by P.W. 1 :
“The marriage took place at 10 p.m. Pat-wooden
sheets-were brought. A carpet was spread.
Accused no. 1 then sat on the wooden sheet.
On the other sheet accused no. 3 sat. She was
sitting nearby accused no. 1. Accused no. 4
then performed some Puja by bringing a Tambya
pitcher. Betel leaves and coconut was kept on
the Tambya. Two garlands were brought.
Accused no. 2 was having one-and accused no. 4
having one in his hand. Accused no. 4 gave
the garland to accused no. 3 and accused no. 2
gave the garland to accused no. 1. Accused
nos. 1 and 3 then garlanded each other. Then
they each struck each other’s forehead.”
842
In cross-examination this witness stated:
“It is not that Gandharva according to our
custom is performed necessarily in a temple.
It is also not that a Brahmin Priest is
required to perform the Gandharva marriage.
No ’Mangala Ashtakas’ are required to be
chanted at the time of Gandharva marriage. At
the time of marriage in question, no Brahmin
was called and Mangala Ashtakas were chanted.
There is no custom to blow a pipe called
’Sher’ in vernacular.”
Sitaram, witness no. 2 for the complainant,
made a similar statement about what happened
at the marriage ceremony and further stated,
in the examination-in-chief :
“Surpan is the village of accused no. 3’s
maternal uncle and as the custom is not to
perform the ceremony at the house of maternal
uncle, so it was performed at another place.
There is no custom requiring a Brahmin Priest
at the time of Gandharva.”
He stated in cross-examination :
“A barber is not required and accused no. 5
was not present at the time of marriage.
There is a custom that the father of girl
should make to touch the foreheads of the girl
and boy to each other and the Gandharva is
completed by the act.”
It is urged for the respondent that as the touching of the
forehead by the bridegroom and the bride is stated to
complete the act of Gandharva marriage, it must be concluded
that the ceremonies which, according to this witness, had
been performed, were all the ceremonies which, by custom,
were necessary for the validity of the marriage. In the
absence of a statement by the witness himself that according
to custom these ceremonies were the only necessary
ceremonies for a valid marriage, we cannot construe the
statement that the touching of the foreheads completed the
gandharva form of marriage and that the ceremonies gone
through were all the ceremonies required for the validity of
the marriage.
Bhagwan, witness no. 3 for the complainant, made no statement
about the custom, but stated in cross-examination that
it was not necessary for the valid performance of gandharva
marriage in their community that a Brahmin priest was
required and mangala ashtakas were to be chanted. The
statement of Jeebhau, witness no. 4 for the complainant,
does not show how the custom has
843
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modified the essential forms of marriage. He stated in
cross-examination :
“I had witnessed two Gandharvas before this.
For the last 5 or 7 years a Brahmin Priest, a
Barber and a Thakur is not required to perform
the Gandharva but formerly it was essential.
Formerly the Brahmin used to chant Mantras and
Mangala ashtakas. It was necessary to have a
maternal uncle or any other person to make
touch the foreheads of the sponsors together.
A Brahmin from Kasara and Dhandana comes to
our village for doing rituals but I do not
know their names.”
This statement too, does not establish that the two
essential ceremonies are no more necessary to be performed,
for a Gandharva marriage. The mere fact that they were
probably not performed in the two Gandharva marriages
Jeebhau had attended, does not establish that their
performance is no more necessary according to the custom in
that community. Further, Jeebhau has stated that about five
or seven years earlier the performance of certain ceremonies
which, till then, were essential for the marriage, were
given up. If so, the departure from the essentials cannot
be said to have become a custom, as contemplated by the
Hindu Marriage Act.
Clause (a) of s. 3 of the Act provides that the expressions
’custom’ and ’usage’ signify any rule which, having been
continuously and uniformly observed for a long time, has
obtained the force of law among Hindus in any local area,
tribe, community, group or family.
We are therefore of opinion that the prosecution has failed
to establish that the marriage between appellant no. 1 and
Kamlabai in February 1962 was performed in accordance with
the customary rites as required by s. 7 of the Act. It was
certainly not performed in accordance with the essential
requirements for a valid marriage under Hindu law.
It follows therefore that the marriage between appellant no.
1 and Kamlabai does not come within the expression
’solemnized marriage’ occurring in S. 17 of the Act and
consequently does not come within the mischief of S. 494
I.P.C. even though the first wife of appellant no.1 was
living when he married Kamlabai in 1 February 1962.
We have not referred to and discussed the cases referred to
in support of the contention that the ’subsequent marriage’
referred
844
to in s. 494 I.P.C. need not be a valid marriage, as it is
unnecessary to consider whether they have been correctly
decided, in view of the fact that the marriage of appellant
no. 1 with Kamlabai could be a void marriage only if it came
within the purview of s. 17 of
the Act.
The result is that the conviction of appellant no. 1 under
s. 494 I.P.C. and of appellant no. 2 under s. 494 read with
s. 114 I.P.C. cannot be sustained. We therefore allow their
appeal, set aside their convictions and acquit them. The
bail bonds of appellant no. 1 will stand discharged. Fines,
if paid, will be refunded.
Appeal allowed.
845