Bhauram Shankar Lokhande v. State of Maharashtra – 1965 SC

The Question that arose for consideration was 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 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]

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]