Case Note & Summary
The Supreme Court of India considered a criminal appeal by special leave against the conviction of appellant No.1 for an offence under Section 494 of the Indian Penal Code, 1860, and appellant No.2 for abetment under Section 494 read with Section 114 IPC. The prosecution case was that appellant No.1 married Kamlabai in February 1962 during the lifetime of his first wife, Indubai, whom he had married around 1956. The alleged second marriage was claimed to be in the Gandharva form as modified by custom among Maharashtrians. The trial court convicted the appellants, while acquitting three co-accused. The Sessions Judge dismissed the appeal, and the Bombay High Court dismissed a revision application. The appellants contended that the prosecution had failed to prove that the essential ceremonies for a valid Hindu marriage had been performed. The State argued that the second marriage was in accordance with the custom of the community for Gandharva marriage and that for an offence under Section 494 IPC it was not necessary that the second marriage be valid; merely going through any form of marriage during the lifetime of the first spouse was sufficient. The Supreme Court examined the meaning of the expression 'whoever marries' in Section 494 IPC and held that prima facie it meant 'whoever marries validly' or 'whoever marries and whose marriage is a valid one'. If a marriage was not valid according to the law applicable to the parties, no question arose of its being void by reason of its taking place during the life of the husband or wife of the person marrying. The Court then considered Section 17 of the Hindu Marriage Act, 1955, which provided that any marriage between two Hindus solemnized after the commencement of the Act was void if at the date of such marriage either party had a spouse living. The Court observed that the word 'solemnize' meant to celebrate the marriage with proper ceremonies and in due form. Therefore, unless the marriage was celebrated or performed with proper ceremonies and due form, it could not be said to be 'solemnized'. Merely going through certain ceremonies with the intention that the parties be taken to be married would not make them ceremonies prescribed by law or approved by any established custom. The Court then referred to Mulla's Hindu Law, 12th Edition, which stated that the two essential ceremonies for the validity of a Hindu marriage, namely invocation before the sacred fire and saptapadi, were equally a requisite part of a Gandharva marriage unless it was shown that some modification of those ceremonies had been introduced by custom in any particular community or caste. It was not disputed that these two essential ceremonies were not performed when appellant No.1 married Kamlabai in February 1962. The evidence on record did not establish that the performance of these essential ceremonies had been abrogated by custom. The prosecution led no evidence as to what the custom was; statements by witnesses that certain ceremonies were not necessary for Gandharva marriage did not amount to proof of custom. The Court also held that the fact that the two essential ceremonies may not have been performed for a period of five or seven years could not establish a custom under Section 3(a) of the Hindu Marriage Act, 1955. Accordingly, the Supreme Court concluded that the prosecution had failed to establish that the second marriage was performed in accordance with the customary rites applicable, and therefore no valid marriage took place and no offence under Section 494 IPC was made out. The appeal was allowed, and the convictions and sentences were set aside.
Headnote
A) Criminal Law - Bigamy - Section 494 Indian Penal Code, 1860 - Valid Marriage Requirement - The expression 'whoever marries' in Section 494 IPC means 'whoever marries validly'; if the second marriage is not valid according to the law applicable to the parties, it is no marriage and cannot be void by reason of its taking place during the lifetime of the spouse - Court held that the prosecution must establish that the alleged second marriage was duly performed in accordance with the essential religious rites applicable before conviction for bigamy can stand (Paras 839 C-D). B) Hindu Law - Solemnization - Section 17 Hindu Marriage Act, 1955 - Meaning of 'solemnized' - The word 'solemnize' means to celebrate the marriage with proper ceremonies and in due form; merely going through certain ceremonies with the intention that the parties be taken to be married does not constitute solemnization - Held that the second marriage was not solemnized because the essential ceremonies were not performed, so Section 17 and Section 494 IPC did not apply (Paras 839 G-H, 840 A-C). C) Hindu Law - Marriage Ceremonies - Essential Ceremonies for Gandharva Marriage - Invocation before the sacred fire and saptapadi are essential ceremonies for a valid Hindu marriage, including the Gandharva form, unless it is shown that some modification has been introduced by custom in any particular community or caste - Evidence showed these ceremonies were not performed and no definite evidence established custom abrogating them, so prosecution failed to prove a valid marriage (Paras 840 H, 841 A-C, 843 E-G). D) Custom - Proof of Custom - Section 3(a) Hindu Marriage Act, 1955 - Custom - The fact that the two essential ceremonies may not have been performed for a period of five or seven years cannot establish a custom as contemplated by Section 3(a); custom must be proved by definite evidence - Court held no custom established to modify the essential ceremonies (Para 843 C-E).
Issue of Consideration
Whether the offence under Section 494 of the Indian Penal Code, 1860 requires the second marriage to be valid and duly performed with essential ceremonies; whether the alleged second marriage was solemnized within the meaning of Section 17 of the Hindu Marriage Act, 1955; whether the ceremonies performed constituted a valid Gandharva marriage as modified by custom prevailing among Maharashtrians; whether absence of essential ceremonies for five or seven years established custom under Section 3(a) of the Hindu Marriage Act, 1955.
Final Decision
The Supreme Court held that the prosecution failed to establish that the second marriage was performed in accordance with the customary rites applicable. The essential ceremonies of invocation before the sacred fire and saptapadi were not performed, and no custom abrogating them was proved. Therefore, no valid marriage took place, and no offence under Section 494 IPC was made out. The appeal was allowed, and the convictions and sentences of both appellants were set aside.
Law Points
- For an offence under Section 494 of the Indian Penal Code
- 1860
- the second marriage must be valid and duly solemnized
- Section 17 of the Hindu Marriage Act
- 1955 requires marriage to be solemnized with proper ceremonies and due form
- 'solemnize' means to celebrate with proper ceremonies and in due form
- Essential ceremonies for a Hindu marriage are invocation before the sacred fire and saptapadi
- Gandharva marriage also requires essential ceremonies unless custom modifies them
- Custom must be established by definite evidence
- absence of ceremonies for five or seven years does not prove custom
