In Bhaurao Shankar Lokhande v State of Maharashtra Case, an appeal by special leave was directed against the judgment and order dated August 19, 1963 of the Bombay High Court in Criminal Revision Application No. 388 of 1963.The impugned judgment of the court considering the appellant guilty of the offence under Section 494 was overruled and hence, the order of acquittal was passed.
CITATION: 1965 AIR 1564, 1965 SCR(2) 837
BENCH: DAYAL, RAGHUBAR; MUDHOLKAR, J.R; RAMASWAMI, V.
FACTS OF BHAURAO SHANKAR LOKHANDE CASE:
That the appellant and the respondent were married in about 1956 in accordance with the religious rites applicable to the form of marriage. The appellant contracted a second marriage with a woman named Kamlabai in February 1962, during the subsistence of his first marriage.
Further, the respondent filed a complaint against the appellant, his brother and his second alleged wife, and her father, for the commission of offence under Section 494 of IPC. The appellant was convicted under Section 494 and his brother was convicted under Section 114 of IPC, while the rest were acquitted by the Magistrate. Their appeal to the Sessions Judge was dismissed and their revision to the High Court also failed. Hence, this appeal by special leave was preferred.
LEGAL ISSUES:
1. Whether it was necessary for the prosecution to establish that the alleged second marriage had been duly performed as per the religious rites and custom?
2. Whether it was necessary for the commission of the offence under Section 494 IPC that the second marriage be a valid one?
3. Whether the appellant is to be held guilty of the offence of bigamy?
RATIO DECIDENDI:
It was alleged for the respondent that the marriage between the appellant and the alleged second wife was in ‘Gandharva’ form, as modified by the custom prevailing among the Maharashtrian.
There are two ceremonies essential for the validity of a marriage, namely-
- Invocation before the sacred fire, and
- Saptapadi
In the instant case, it was established that these two essential ceremonies were not performed at the time of second marriage, and neither there was any evidence on record to establish that performing these ceremonies has been abrogated by the custom prevalent in their community. Hence, in regard to question (1), it follows that the marriage between the appellant and the alleged second wife was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu Law.
Section 494 of the Indian Penal Code provides:
“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 valid’. In short, if the marriage is not a valid one, it is no marriage in the eye of law.
As per section 17 of the Hindu Marriage Act 1955, the marriage between two parties is considered being void only in case the marriage is contracted after the commencement of the Act and at the date of such marriage, either party had a spouse living. Accordingly, the provisions of Section 494 and 495 are to be applied.
Thus, in view of questions (2) and (3): it was contended that since the marriage between the appellant and the alleged second wife was not performed with proper ceremonies and in due form, the marriage cannot be said to have been ‘solemnized’ and therefore the appellant cannot be held to have committed the offence under Section 494 I.P.C.
JUDGMENT:
In light of the above discussions, the judgment of the High Court was overruled by the Supreme Court stating that the marriage between the appellant and Kamlabai does not fall within the expression ‘solemnized marriage’ occurring in Section 17 of the Act and consequently does not come within the mischief of Section 494 of I.P.C even though the second marriage was contracted during the subsistence of his first marriage with the respondent. Accordingly, the appellant and his brother were found not guilty and the order of acquittal was passed by the concerned court.
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