Bhaurao Shankar Lokhande & ANR Vs.
State of Maharashtra & ANR  INSC 16 (1 February 1965)
01/02/1965 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
CITATION: 1965 AIR 1564 1965 SCR (2) 837
R 1966 SC 614 (6,8) R 1971 SC1153 (14) R 1979
SC 713 (5)
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 ceremonies necessary-Modification by custom considered.
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 'who evermarries
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 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.
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
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 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 description 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 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
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.
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 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 Tambyapitcher. 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 modified the essential forms of marriage. He stated
in cross-examination :
"I had witnessed two Gandharvas before
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
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.