Facts of Bhaurao Shankar Lokhande vs State of Maharashtra
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 underS. 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.
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 marriage be a valid one.
Issue of Bhaurao Shankar Lokhande vs State of Maharashtra
- Whether the second marriage solemnized by appellant was valid or not?
- Whether the appellant is guilty for offence under S. 494 of Indian Penal Code?
Observations of Bhaurao Shankar Lokhande vs State of Maharashtra
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.
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 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 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 (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.”
Decision of Bhaurao Shankar Lokhande vs State of Maharashtra
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 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.
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.