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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 committed- Therefore  whether essential ceremonies must  be  performed- Hindu  Marriage  Act,  1955,  s.  17-Marriage  ’solemnised’- Meaning of-Hindu. Hindu Law-’Gandharva’ marriage-Whether usual essential cere- monies 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  ’whoever- marries 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 mar- riage 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 8 39 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 appel- lant  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  state- ment 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