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SC: If a matrimony is not a current marriage, it is no matrimony in a eye of law

Supreme Court of India

PETITIONER:BHAURAO SHANKAR LOKHANDE & ANR.

Vs.

RESPONDENT:STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT:
01/02/1965

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 compulsory to be ‘valid’ for corruption to be committed-
Therefore possibly essential ceremonies contingency be performed-
Hindu Marriage Act, 1955, s. 17-Marriage ‘solemnised’-
Meaning of-Hindu.
Hindu Law-‘Gandharva’ marriage-Whether common essential cere-
monies necessary-Modification by tradition considered.

HEADNOTE:
Appellant No. 1 was convicted of an corruption underneath s. 494
I.P.C. (and appellant No. 2 of aiding him) for going
through a matrimony that was, blank by reason of a taking
place during a life-time of a prior wife.
It was contended on interest of a appellants that in law it
was compulsory for a charge to settle that the
alleged matrimony had been duly achieved in suitability with
the essential eremite rites germane to a form of
marriage left through. On a other palm it was urged by
the State that for a elect of an corruption underneath s.
494, it was not compulsory that a second matrimony should be
a current one and a chairman going by any form of marriage
during a life-time of a initial mother would dedicate the
offence; and that in any event, in a benefaction box the
rites compulsory for a ‘Gandharva’ form of marriage, as
modified by tradition prevalent among Maharashtrians, had been
duly observed.

HELD: (i) Prima facie, a countenance ‘whoever-marries’
in s. 494 contingency meant ‘whoever-marries validly’ or ‘whoever-
marries and whose matrimony is a current one. If a matrimony is
not a current one according to a law germane to the
parties, no doubt arises of a being blank by reason of
its holding place during a life of a father or mother of
the chairman marrying, [839 C-D]
(ii) For a matrimony between dual Hindus to be blank by virtue
of s. 17 of a Hindu Marriage Act, 1955, dual conditions
are compulsory to be satisfied, i.e. (a) a matrimony is
solemnised after a Act; and (b) during a date of such
marriage, possibly celebration has a associate living. Unless a mar-
riage is distinguished or achieved with correct ceremonies and
due form, it can't be pronounced to be ‘solemnised’ within the
meaning of s. 17. Merely going by certain ceremonies,
with a goal that a parties be taken to be married,
will not make them ceremonies prescribed by law or approved
by any determined custom. [839 G-H; 840 A-C]
(iii) The dual ceremonies essential to a effect of a
Hindu marriage, i.e. bid before a dedicated glow and
sapatapadi, are also a claim partial of a ‘Gandharva’
marriage unless it is shown that some alteration of these
ceremonies has been introduced by tradition in any particular
community or caste. It was not doubtful that in a present
case these dual ceremonies were not achieved when the
appellant No. 1 married a second time and a justification on
record did not settle that these essential ceremonies had
been abrogated by custom. The charge had therefore
failed to settle that a second matrimony was performed
in suitability with a prevalent rites applicable. [840 H:84 A-C; 843 E-G]
Mullas Hindu Law, 12th Edn. pp. 605 and 615, relied upon.
(iv) The contribution that a dual essential ceremonies might not
have been achieved for a duration of 5 or 7 years
could not be pronounced to have determined a tradition as
contemplated by s. 3(a) of a Hindu Marriage Act, 1955.[843 C-E]

JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 178 of 1963.

Appeal by special leave from a visualisation and sequence antiquated Aug 19, 1963, of a Bombay High Court in Criminal Revision Application No. 388 of 1963.

S. G. Patwardhan and M. S. Gupta, for a appellants. W. S. Barlingay, B. R. G. K. Achar for R. H. Dhebar, for respondent No. 1.

The Judgement of a Court was delivered by Raghubar Dayal, J. Bhaurao Shankar Lokhande, appellant No. 1, was married to a complainant Indubai in about 1956. He married Kamlabai in Feb 1962, during a lifetime of Indubai. Deorao Shankar Lokhande, appellant No. 2, is a hermit of a initial appellant. These dual appellants, together with Kamlabai and her father and indicted No. 5, a barber, were attempted for an corruption underneath S. 494 I.P.C. The latter 3 were clear by a Magistrate. Appellant No. 1 was convicted underneath S. 494 I.P.C. and appellant No. 2 for an corruption underneath S. 494 review with S. 114 I.P.C. Their interest to a Sessions Judge was dismissed. Their rider to a High Court also failed. They have elite this interest by special leave.

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The usually row lifted for a appellants is that in law it was compulsory for a charge to settle that a purported second matrimony of a appellant No. 1 with Kamlabai in 1962 had been duly achieved in suitability with a eremite rites germane to a form of matrimony left through. It is urged for a appellants that a essential ceremonies for a current matrimony were not achieved during a record that took place when appellant No. 1 and Kamlabai married any other. On interest of a ‘State it is urged that a record of that matrimony were in suitability with a tradition prevalent in a encampment of a appellant for gandharva form of matrimony and that therefore a second matrimony of appellant No. 1 with Kamlabai was a current marriage. It is also urged for a State that it is not compulsory for a elect of a corruption underneath S. 494 I.P.C. that a second 8 39 matrimony be a current one and that a chairman going by any form of matrimony during a life-time of a initial mother would dedicate a corruption underneath s. 494 I.P.C. even if a after matrimony be blank according to a law germane to that person.

Section 494 I.P.C. reads :

“Whoever, carrying a father or mother living, marries in any box in that such matrimony is blank by reason of a holding place during a life of such father or wife, shall be punished with seizure of possibly descrip- tion for a tenure that might extend to 7 years, and shall also be probable to fine.”

Prima facie, a countenance ‘whoever…. marries’ contingency meant ‘whoever marries-validly’ or ‘whoever…. marries and whose matrimony is a current one’. If a matrimony is not a current one, according to a law germane to a parties, no doubt of a being blank by reason of a holding place during a life of a father or mother of a chairman marrying arises. If a matrimony is not a current marriage, it is no matrimony in a eye of law. The unclothed fact of a masculine and a lady vital as father and mother does not, during any rate, routinely give them a standing of father and mother even yet they might reason themselves out before multitude as father and mother and a multitude treats them as father and wife.

Apart from these considerations, there is zero in a Hindu law, as germane to marriages compartment a dramatization of a Hindu Marriage Act of 1955, that done a second matrimony of a masculine Hindu, during a life-time of his prior wife, void. Section 5 of a Hindu Marriage Act provides that a matrimony might be solemnized between any dual Hindus if a conditions mentioned in that territory are over and one of those conditions is that conjunction celebration has a associate vital during a time of a marriage. Section 17 provides that any matrimony between dual Hindus solemnized after a derivation of a Act is blank if during a date of such matrimony possibly celebration had a father or mother living, and that a supplies of ss. 494 and 495 I.P.C. shall request accordingly. The matrimony between dual Hindus is blank in perspective of s. 17 if dual conditions are confident : (i) a matrimony is solemnized after a derivation of a Act;

(ii) during a date of such marriage, possibly celebration had a associate living. If a matrimony that took place between a appel- lant and Kamlabai in Feb 1962 can't be pronounced to be ‘solemnized’, that matrimony will not be blank by trait of s. 17 of a Act and s. 494 I.P.C. will not request to such parties to a matrimony as had a associate living. L4Sup./65-7 The word ‘solemnize’ means, in tie with a marriage, ‘to applaud a matrimony with correct ceremonies and in due form’, according to a Shorter Oxford Dictionary. It follows, therefore, that unless a matrimony is ‘celebrated or achieved with correct ceremonies and due form’ it can't be pronounced to be ‘solemnized’. It is therefore essential, for a purpose of s. 17 of a Act, that a matrimony to that s. 494 I.P.C. relates on comment of a supplies of a Act, should have been distinguished with correct ceremonies and in due form. Merely going by certain ceremonies with a goal that a parties be taken to be married, will not make them ceremonies Prescribed by law or authorized by any determined custom.

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We are of opinion that unless a matrimony that took place between appellant no. 1 and Kamlabai in Feb 1962 was achieved in suitability with a mandate of a law germane to a matrimony between a parties, a matrimony can't be pronounced to have been ‘solemnized’ and therefore appellant no. 1 can't be hold to have committed a corruption underneath s. 494 I.P.C.

We might now settle what a essential ceremonies for a current matrimony between a parties are. It is purported for a respondent that a matrimony between appellant no. 1 and Kamlabai was in ‘gandharva’ form, as mutated by a tradition prevalent among a Maharashtrians. It is remarkable in Mullas Hindu Law, 12th Edition, during p. 605 :

“The Gandharva matrimony is a intentional kinship of a lady and a lady that springs from enterprise and erotic inclination. It has during times been erroneously described as an substitution for concubinage. This perspective is formed on a sum myth of a heading texts of a Smritis. It might be remarkable that a essential matrimony ceremonies are as most a claim partial of this form of matrimony as of any other unless it is shown that some alteration of those ceremonies has been introduced by tradition in any sold encampment or caste.”
At p. 615 is settled :
“(1) There are dual ceremonies essential to a effect of a marriage, possibly a matrimony be in a Brahma form or a Asura form, namely-
(1) bid before a dedicated fire, and (2) saptapadi, that is, a holding of 7 stairs by a groom and a bride jointly before a dedicated fire.
(2) A matrimony might be finished by a opening of ceremonies other than those referred to in subsection (1), where it is authorised by a tradition of a standing to that a parties belong.”
It is not doubtful that these dual essential ceremonies were not achieved when appellant no. 1 married Kamlabai in Feb 1962. There is no justification on record to settle that a opening of these dual essential ceremonies has been abrogated by a tradition prevalent in their community. In fact, a charge led no justification as to what a tradition was. It led justification of what was achieved during a time of a purported marriage. It was a warn for a indicted in a box who questioned certain witnesses about a opening of certain ceremonies and to such questions a witnesses replied that they were not compulsory for a ‘gandharva’ form of matrimony in their community. Such a matter does not meant that a tradition of a encampment deemed what took place during a ‘marriage’ of a appellant no. 1 and Kamlabai, sufficient for a current matrimony and that a opening of a dual essential ceremonies had been abrogated. There ought to have been clear justification to settle that a tradition prevalent in a encampment had abrogated these ceremonies for such form of marriage. What took place that night when appellant no. 1 married Kamlabai, has been settled thus, by P.W. 1 :

“The matrimony took place during 10 p.m. Pat-wooden sheets-were brought. A runner was spread. Accused no. 1 afterwards sat on a wooden sheet. On a other piece indicted no. 3 sat. She was sitting circuitously indicted no. 1. Accused no. 4 afterwards achieved some Puja by bringing a Tambya- pitcher. Betel leaves and coconut was kept on a Tambya. Two garlands were brought. Accused no. 2 was carrying one-and indicted no. 4 carrying one in his hand. Accused no. 4 gave a wreath to indicted no. 3 and indicted no. 2 gave a wreath to indicted no. 1. Accused nos. 1 and 3 afterwards garlanded any other. Then they any struck any other’s forehead.”
In interrogate this declare stated: “It is not that Gandharva according to a tradition is achieved indispensably in a temple. It is also not that a Brahmin Priest is compulsory to perform a Gandharva marriage. No ‘Mangala Ashtakas’ are compulsory to be chanted during a time of Gandharva marriage. At a time of matrimony in question, no Brahmin was called and Mangala Ashtakas were chanted. There is no tradition to blow a siren called ‘Sher’ in vernacular.”
Sitaram, declare no. 2 for a complainant, done a identical matter about what happened during a matrimony rite and serve stated, in a examination-in-chief :
“Surpan is a encampment of indicted no. 3’s maternal uncle and as a tradition is not to perform a rite during a residence of maternal uncle, so it was achieved during another place. There is no tradition requiring a Brahmin Priest during a time of Gandharva.”
He settled in interrogate : “A coiffeur is not compulsory and indicted no. 5 was not benefaction during a time of marriage. There is a tradition that a father of lady should make to hold a foreheads of a lady and child to any other and a Gandharva is finished by a act.”
It is urged for a respondent that as a touching of a front by a groom and a bride is settled to finish a act of Gandharva marriage, it contingency be resolved that a ceremonies which, according to this witness, had been performed, were all a ceremonies which, by custom, were compulsory for a effect of a marriage. In a deficiency of a matter by a declare himself that according to tradition these ceremonies were a usually compulsory ceremonies for a current marriage, we can't interpret a matter that a touching of a foreheads finished a gandharva form of matrimony and that a ceremonies left by were all a ceremonies compulsory for a effect of a marriage.

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Bhagwan, declare no. 3 for a complainant, done no state- ment about a custom, yet settled in interrogate that it was not compulsory for a current opening of gandharva matrimony in their encampment that a Brahmin clergyman was compulsory and mangala ashtakas were to be chanted. The matter of Jeebhau, declare no. 4 for a complainant, does not uncover how a tradition has mutated a essential forms of marriage. He settled in interrogate :

“I had witnessed dual Gandharvas before this. For a final 5 or 7 years a Brahmin Priest, a Barber and a Thakur is not compulsory to perform a Gandharva yet before it was essential. Formerly a Brahmin used to intone Mantras and Mangala ashtakas. It was compulsory to have a maternal uncle or any other chairman to make hold a foreheads of a sponsors together. A Brahmin from Kasara and Dhandana comes to a encampment for doing rituals yet we do not know their names.”
This matter too, does not settle that a dual essential ceremonies are no some-more compulsory to be performed, for a Gandharva marriage. The small fact that they were substantially not achieved in a dual Gandharva marriages Jeebhau had attended, does not settle that their opening is no some-more compulsory according to a tradition in that community. Further, Jeebhau has settled that about 5 or 7 years progressing a opening of certain ceremonies which, compartment then, were essential for a marriage, were given up. If so, a depart from a essentials can't be pronounced to have turn a custom, as contemplated by a Hindu Marriage Act.

Clause (a) of s. 3 of a Act provides that a expressions ‘custom’ and ‘usage’ weigh any order which, carrying been invariably and regularly distinguished for a prolonged time, has achieved a force of law among Hindus in any internal area, tribe, community, organisation or family.

We are therefore of opinion that a charge has unsuccessful to settle that a matrimony between appellant no. 1 and Kamlabai in Feb 1962 was achieved in suitability with a prevalent rites as compulsory by s. 7 of a Act. It was positively not achieved in suitability with a essential mandate for a current matrimony underneath Hindu law. It follows therefore that a matrimony between appellant no. 1 and Kamlabai does not come within a countenance ‘solemnized marriage’ occurring in S. 17 of a Act and hence does not come within a effect of S. 494 I.P.C. even yet a initial mother of appellant no.1 was vital when he married Kamlabai in 1 Feb 1962. We have not referred to and discussed a cases referred to in support of a row that a ‘subsequent marriage’ referred to in s. 494 I.P.C. need not be a current marriage, as it is nonessential to cruise possibly they have been rightly decided, in perspective of a fact that a matrimony of appellant no. 1 with Kamlabai could be a blank matrimony usually if it came within a reach of s. 17 of a Act.

The outcome is that a self-assurance of appellant no. 1 underneath s. 494 I.P.C. and of appellant no. 2 underneath s. 494 review with s. 114 I.P.C. can't be sustained. We therefore concede their appeal, set aside their philosophy and justify them. The bail holds of appellant no. 1 will mount discharged. Fines, if paid, will be refunded.

Appeal allowed.

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