Bhaurao Shankar Lokhande v. State of Maharashtra

A man married a second time while his first wife was alive and was charged with bigamy (marrying again while a previous valid marriage still subsists). His defence: the second marriage never involved the ceremonies Hindu law treats as essential, so it was never a valid marriage in the first place. The Supreme Court agreed and acquitted him, holding that a bigamy charge under Section 494 IPC fails unless the second marriage was properly solemnised (celebrated with proper ceremonies and due form).

Quick Revision

Parties

Bhaurao Shankar Lokhande — appellant No. 1; married Indubai in about 1956, then married Kamlabai in February 1962 while Indubai was still alive. He was convicted under Section 494 IPC and appealed to the Supreme Court by special leave (permission the Supreme Court gives to hear an appeal that would not otherwise reach it).

Deorao Shankar Lokhande — appellant No. 2; Bhaurao's brother. He was convicted under Section 494 read with Section 114 IPC for abetment of the bigamous marriage.

State of Maharashtra — respondent No. 1; the prosecuting State.

Indubai — the complainant; Bhaurao's first wife, alive at the time of his second marriage.

Kamlabai, her father, and accused No. 5 (a barber) — also tried along with the two appellants for the same offence, but acquitted by the Magistrate. They are not parties to this appeal.

Procedural History

The judgment is not numbered into paragraphs. Steps are given in the order the judgment records them.

1. Appellant No. 1, appellant No. 2, Kamlabai, her father and accused No. 5 were tried together for an offence under Section 494 IPC. The Magistrate acquitted Kamlabai, her father and accused No. 5. He convicted appellant No. 1 under Section 494 IPC and appellant No. 2 under Section 494 read with Section 114 IPC.
2. The two appellants' appeal to the Sessions Judge was dismissed.
3. Their revision application (Criminal Revision Application No. 388 of 1963) to the Bombay High Court was dismissed by judgment and order dated 19 August 1963.
4. The appellants came to the Supreme Court by special leave (Criminal Appeal No. 178 of 1963).
5. The Supreme Court delivered judgment on 1 February 1965. Raghubar Dayal, J. wrote the judgment of the Court, for himself, Mudholkar and Ramaswami, JJ.

Facts

1. Appellant No. 1, Bhaurao Shankar Lokhande, married the complainant Indubai in about 1956.
2. He married Kamlabai in February 1962, while Indubai was still alive.
3. Appellant No. 2, Deorao Shankar Lokhande, is Bhaurao's brother. He, Kamlabai, her father and accused No. 5, a barber, were tried along with Bhaurao for the offence.
4. The prosecution's own witnesses described what took place at the February 1962 ceremony. Wooden seats (pat) were brought and a carpet spread. Bhaurao sat on one seat and Kamlabai on another. A person performed a puja with a Tambya (pitcher), betel leaves and a coconut. Two garlands were brought. Bhaurao and Kamlabai garlanded each other and then struck each other's foreheads.
5. It was not disputed that no invocation before the sacred fire and no saptapadi took place at this ceremony.
6. Witnesses for the complainant said in cross-examination that their community's custom for a Gandharva marriage did not require a Brahmin priest, Mangala Ashtakas or a Sher pipe.
7. One witness, Jeebhau, said that for the last five or seven years a Brahmin priest, a barber and a Thakur had not been required for a Gandharva marriage in their community. He added that these had formerly been essential.
8. No witness stated, in terms, that the custom of the community treated the ceremonies actually performed as the only ceremonies necessary for a valid marriage.

Issues Raised

1. Must the prosecution prove, for a conviction under Section 494 IPC, that the second marriage was performed with the essential ceremonies required by law or by an established custom?
2. Was the marriage between appellant No. 1 and Kamlabai in February 1962 solemnised within the meaning of Section 17 of the Hindu Marriage Act, 1955, so as to be a void marriage and to attract Section 494 IPC?
3. Had the two ceremonies essential to a Hindu marriage — invocation before the sacred fire and saptapadi — been abrogated in this community by a custom satisfying Section 3(a) of the Hindu Marriage Act, 1955?

Arguments Contended

For the appellants:

• It was necessary for the prosecution to establish that the alleged second marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through.
• The essential ceremonies for a valid marriage were not performed at the February 1962 ceremony.

For the State:

• For an offence under Section 494 IPC, it is not necessary that the second marriage be a valid one. A person going through any form of marriage during the lifetime of the first spouse commits the offence. This is so even if the later marriage is void under the law applicable to that person.
• In any event, the ceremonies necessary for a Gandharva form of marriage, as modified by custom prevailing among Maharashtrians, had been duly observed in this case.

Court's Reasoning

Raghubar Dayal, J. (for the Court)

The judgment is not numbered into paragraphs; the steps below follow the order in which the Court reasons.

1. Held: prima facie (on the face of it), the expression whoever marries in Section 494 IPC must mean whoever marries validly, or whoever marries and whose marriage is a valid one. If a marriage is not valid under the law applicable to the parties, no question of it being void by reason of a living spouse can arise. It is no marriage in the eye of law.
2. Noted: two people merely living together as husband and wife, even if society treats them as such, does not normally give them the status of husband and wife.
3. Noted: apart from these considerations, nothing in Hindu law before the Hindu Marriage Act, 1955 made a second marriage of a male Hindu, during his previous wife's lifetime, void.
4. Held: Section 5 of the Hindu Marriage Act, 1955 lets two Hindus marry only if neither has a spouse living at the time. Section 17 makes a marriage between two Hindus, solemnised after the Act commenced, void if either party had a spouse living at that date. It applies Sections 494 and 495 IPC to such a marriage.
5. Held: for a marriage between two Hindus to be void under Section 17, two conditions must be satisfied. First, the marriage must be solemnised after the Act commenced. Second, at the date of the marriage, either party must have had a spouse living. If the marriage cannot be said to be solemnised, it is not void under Section 17, so Section 494 IPC does not apply.
6. Held: the word solemnise means, per the Shorter Oxford Dictionary, to celebrate a marriage with proper ceremonies and in due form. Unless the marriage is "celebrated or performed with proper ceremonies and due form" it cannot be said to be solemnised. Merely going through ceremonies, meant to make the parties count as married, does not satisfy this test unless those ceremonies are prescribed by law or approved by an established custom.
7. Held: unless the February 1962 marriage was performed in accordance with the law applicable to the parties, it cannot be said to have been solemnised. Appellant No. 1 cannot then be held to have committed the offence under Section 494 IPC.
8. Noted: Mulla's Hindu Law, 12th Edition, p. 605, describes the Gandharva marriage as the voluntary union of a youth and a damsel arising from desire and inclination. It states that "the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other," unless custom has modified them for a particular community or caste.
9. Noted: Mulla's Hindu Law, p. 615, states that two ceremonies are essential to the validity of a marriage in either the Brahma or the Asura form: invocation before the sacred fire, and saptapadi. A marriage may be completed by other ceremonies only where the caste's custom allows it.
10. Held: it was not disputed that these two essential ceremonies were not performed at the February 1962 marriage. There was no evidence that their performance had been abrogated by a custom in this community. The prosecution led no evidence of what the custom actually was, only evidence of what had been performed.
11. Noted: the defence's cross-examination drew out statements from witnesses that a Brahmin priest, Mangala Ashtakas and a Sher pipe were not required by their community's custom for a Gandharva marriage. No witness stated that the ceremonies actually performed were the only ceremonies the custom required.
12. Held: a witness's statement that touching the foreheads completes the Gandharva form does not, by itself, establish that all the ceremonies gone through were all that custom required for a valid marriage.
13. Held: the witness Jeebhau's evidence, that for the last five or seven years a Brahmin priest, a barber and a Thakur had not been required though formerly essential, does not establish that the two essential ceremonies had become unnecessary. A departure from what was formerly essential, for only five or seven years, cannot amount to a custom.
14. Noted: Section 3(a) of the Hindu Marriage Act, 1955 defines custom and usage as "any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus..." in a local area, tribe, community, group or family.
15. Held: the prosecution failed to prove that the marriage between appellant No. 1 and Kamlabai was performed in accordance with the customary rites required by Section 7 of the Hindu Marriage Act, 1955. It was certainly not performed with the essential requirements for a valid marriage under Hindu law.
16. Held: the marriage does not fall within the expression "solemnized marriage" in Section 17 of the Act, and consequently does not attract Section 494 IPC, even though Bhaurao's first wife was alive when he married Kamlabai.
17. Noted: the Court did not discuss the cases cited on whether a subsequent marriage under Section 494 IPC need not be a valid marriage. This was unnecessary, given its finding that the marriage never came within Section 17 of the Act.

Authorities

• Mulla's Hindu Law, 12th Edition, p. 605 and p. 615: relied on for the meaning of a Gandharva marriage and for the two ceremonies essential to the validity of any form of Hindu marriage.
• Shorter Oxford Dictionary: relied on for the meaning of solemnize (to celebrate a marriage with proper ceremonies and due form).

The judgment refers, without naming them, to cases cited for the contention that a subsequent marriage under Section 494 IPC need not be a valid marriage, but declines to decide whether they were correctly decided.

Provisions mentioned

• Section 494, Indian Penal Code, 1860: punishes a person, having a living spouse, who marries again in a case where the second marriage is void by reason of the living spouse.
• Section 114, Indian Penal Code, 1860: makes an abettor present when an offence is committed liable as if he had committed it himself; used here to charge appellant No. 2 with abetting the bigamous marriage.
• Section 5, Hindu Marriage Act, 1955: lets a marriage be solemnised between two Hindus only if, among other conditions, neither has a spouse living at the time.
• Section 7, Hindu Marriage Act, 1955: requires a Hindu marriage to be performed in accordance with the customary rites and ceremonies of either party.
• Section 17, Hindu Marriage Act, 1955: makes a marriage between two Hindus, solemnised after the Act commenced, void if either party had a spouse living at that date, and applies Sections 494 and 495 IPC to it.
• Section 3(a), Hindu Marriage Act, 1955: defines custom and usage as a rule continuously and uniformly observed for a long time, that has obtained the force of law among Hindus in a local area, tribe, community, group or family.

Judgement

1. The appeal is allowed.
2. The conviction of appellant No. 1 under Section 494 IPC is set aside, and he is acquitted.
3. The conviction of appellant No. 2 under Section 494 read with Section 114 IPC is set aside, and he is acquitted.
4. Appellant No. 1's bail bonds stand discharged.
5. Any fines paid are to be refunded.

The judgment records no order as to costs.

Legal Principle / Ratio

A conviction under Section 494 IPC for bigamy, where the parties are Hindus, requires proof, prima facie (on the face of it), that the second marriage was solemnised. It must have been performed with the ceremonies proper to it, whether prescribed by law or by an established custom. A custom that dispenses with an otherwise essential ceremony must be proved by definite evidence of continuous and uniform observance under Section 3(a) of the Hindu Marriage Act, 1955. A recent departure of a few years does not qualify. As the Court put it, a marriage is not solemnized unless it is "celebrated or performed with proper ceremonies and due form".

Subsequent Treatment

Lily Thomas v. Union of India — (2000) 6 SCC 224; AIR 2000 SC 1650; Supreme Court of India; R.P. Sethi and S. Saghir Ahmad, JJ.; decided 5 May 2000. The judgment does not number its paragraphs, so no paragraph numbers are given.

• Use of this case: while explaining how Section 17 of the Hindu Marriage Act, 1955 interacts with Section 494 IPC, the Court reproduces this case's own holding at length. It restates that Section 17 makes a marriage between two Hindus, solemnized after the Act commenced, void if either party had a spouse living at the date of the marriage, and that Sections 494 and 495 IPC apply accordingly. It restates the two-condition test from this case. It also restates this case's own application of that test to the February 1962 marriage: the marriage would not be void under Section 17, and Section 494 IPC would not apply, if it could not be said to be solemnized.
• Later cases named as following it: the Court records that this decision was followed in Kanwal Ram v. H.P. Administration, (1966) 1 SCR 539, AIR 1966 SC 614. It records that the point was again considered in Priya Bala Ghosh v. Suresh Chandra Ghosh, (1971) 3 SCR 961. It also records Gopal Lal v. State of Rajasthan, AIR 1979 SC 713. There, Murtaza Fazal Ali, J. held that a bigamy charge under Section 494 IPC requires proof that the second marriage was valid. This meant the necessary ceremonies required by law or custom were actually performed. The voidness of the marriage under Section 17 is itself an essential ingredient of the Section 494 offence.
• Result on the point: the Court in Lily Thomas concludes that a second marriage during the subsistence of the first marriage is void under Sections 11 and 17 of the Hindu Marriage Act. It also holds that such a marriage is an offence under Section 494 IPC, applying the rule of this case.

Other later cases (not summarized): Kanwal Ram v. H.P. Administration, (1966) 1 SCR 539 = AIR 1966 SC 614; Priya Bala Ghosh v. Suresh Chandra Ghosh, (1971) 3 SCR 961 = AIR 1971 SC 1153; and Gopal Lal v. State of Rajasthan, AIR 1979 SC 713. These are named only inside the quoted extract from Lily Thomas v. Union of India and have not been independently fetched and summarised.

Critical Analysis

Analysis based on the judgment text.

The Court avoids the wider question it was asked to decide. The State argued, in the alternative, that Section 494 IPC does not require the second marriage to be valid at all. The judgment notes this argument and the cases cited for it. It expressly declines to discuss whether those cases were correctly decided, since its finding on solemnisation made the point unnecessary. The broader question, whether an invalid second marriage can ever attract Section 494 IPC on some other reading, is left open by this judgment on its own terms.

The custom exception is described but its evidentiary bar is not spelled out precisely. The Court holds that a custom modifying the essential ceremonies must be proved by definite evidence. A five-to-seven-year departure does not qualify under Section 3(a). It does not say how long an observed departure would need to last. Nor does it say what kind of evidence, beyond a direct witness statement that certain ceremonies are the only ones required, would suffice.

The judgment does not explain why the touching-of-foreheads evidence was insufficient beyond form. The Court treats the absence of an explicit witness statement that the performed ceremonies were exhaustive as decisive, without addressing whether the witnesses' descriptions of the community's actual practice could, on their own, imply such a custom.

Significance

This case is the leading authority for reading Section 494 IPC, as applied to Hindus, through Section 17 of the Hindu Marriage Act, 1955. A second marriage cannot be void under Section 17, and so cannot ground a bigamy conviction, unless it was properly solemnised with the ceremonies the law or an established custom requires. The Supreme Court itself repeated and applied this holding, in the Court's own words, in Lily Thomas v. Union of India (2000). The judgment records that it was followed and further considered in later decisions of the Court as well. The case is also a working illustration of how the Gandharva form of marriage is treated in law. It is not a ceremony-free love-marriage exception, but subject to the same two essential ceremonies as any other Hindu marriage, unless a proven community custom modifies them.

Exam-Important Points

• Facts in one line: a man married a second time while his first wife was alive; the Supreme Court acquitted him of bigamy because the second marriage was never performed with the ceremonies needed to make it a valid, solemnised marriage.
• Core holding: whoever marries in Section 494 IPC means whoever marries validly. An invalid marriage is no marriage at all, so it cannot be void for want of a living spouse.
• The two-step test for Section 17, Hindu Marriage Act: (i) the marriage must be solemnised after the Act commenced; (ii) either party must have had a spouse living at that date. Both must be shown before Section 494 IPC can apply to Hindus.
• Solemnisation means proper ceremonies in due form. Going through some ceremony with the intention of appearing married is not enough unless it is a ceremony prescribed by law or an established custom.
• Gandharva marriage is not ceremony-free. It needs the same two essential ceremonies as any other Hindu marriage form — invocation before the sacred fire and saptapadi — unless custom has modified them.
• Custom must be proved, not assumed. Under Section 3(a) of the Hindu Marriage Act, a custom needs continuous and uniform observance for a long time. A ceremony being skipped for five or seven years is not enough.
• Classic exam trap: the appellants won not because bigamy is impossible to prove, but because the prosecution failed to prove the second marriage was validly performed — a purely evidentiary gap, not a ruling that the marriage was otherwise legitimate.
• The Court deliberately left open whether Section 494 IPC could ever apply to an invalid second marriage on some other legal theory — it did not decide that broader question.

Prepared from the full text of the judgment. The judgment is not numbered into paragraphs; steps are cited to Raghubar Dayal, J.'s opinion (delivered for the Court) in the order the judgment presents them.