Bhaurao Shankar Lokhande v. State of Maharashtra
Supreme Court of India, 1 February 1965, 3 judges, 1965 AIR 1564; 1965 SCR (2) 837
A second marriage attracts Section 494 IPC, through Section 17 of the Hindu Marriage Act, only if it was solemnized with the essential ceremonies; as these were neither performed nor shown dispensed with by custom, the convictions were set aside.
Facts
Appellant No. 1 married the complainant in about 1956 and, during her lifetime, married another woman in February 1962 in what was said to be the 'gandharva' form as modified by custom among Maharashtrians. He was convicted under Section 494 IPC, and his brother, appellant No. 2, under Section 494 read with Section 114 IPC. The appeal to the Sessions Judge and revision to the Bombay High Court failed. In the appeal by special leave, the appellants contended that the prosecution had to prove that the second marriage was performed with the essential religious rites. It was admitted that invocation before the sacred fire and saptapadi were not performed.
Questions before the Court
- Must the second marriage be a valid marriage for an offence under Section 494 IPC?
- What does 'solemnized' mean in Section 17 of the Hindu Marriage Act, 1955?
- Did the prosecution prove that the essential ceremonies had been abrogated by custom for a 'gandharva' marriage in the community?
What the Court held
- Prima facie, 'whoever marries' in Section 494 IPC means whoever marries validly. If the marriage is not valid under the law applicable to the parties, it is no marriage in the eye of law and the question of its being void because a spouse is living does not arise.
- A Hindu marriage is void under Section 17 of the Hindu Marriage Act only if it is solemnized after the Act while a spouse is living. 'Solemnize' means to celebrate the marriage with proper ceremonies and in due form; merely going through some ceremonies intending to be taken as married is not enough.
- Invocation before the sacred fire and saptapadi are essential to a valid marriage, including a gandharva marriage, unless custom has modified them. The prosecution gave no definite evidence of such a custom, and a departure followed only for five or seven years is not a custom under Section 3(a).
- The second marriage was therefore not a 'solemnized' marriage within Section 17 and not within Section 494 IPC. The convictions of both appellants were set aside and they were acquitted.
Why it matters
The judgment holds that for bigamy under Section 494 IPC read with Section 17 of the Hindu Marriage Act, the prosecution must prove that the second marriage was solemnized with the essential ceremonies required by law or by an established custom. It explains 'solemnize' and requires definite proof of any custom that dispenses with the essential ceremonies.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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.”
“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 therefore essential, for the purpose of s. 17 of the Act, that the marriage to which s. 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form.”
“Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom.”
Provisions interpreted
Case and bench
- Parties
- Bhaurao Shankar Lokhande & Anr. v. State of Maharashtra & Anr.
- Case
- Criminal Appeal No. 178 of 1963
- Decided
- 1 February 1965
- Bench
- Dayal, Raghubar, Mudholkar, J.R., Ramaswami, V.
- Opinions
- Judgment of the Court delivered by Raghubar Dayal, J.
Questions on this case
2 questions in live Law Maker papers mention this case. A few from free papers:
Question 1, Hindu Law Practice Set 1
In Bhaurao Shankar Lokhande v. State of Maharashtra (1965), the Supreme Court held that for a conviction for bigamy arising from a Hindu marriage, the second marriage:
- A. is an offence even where no marriage ceremony of any kind was performed
- B. is punishable only if the first spouse has not consented to it
- C. may be proved by the accused's admission alone without more
- D. must be proved to have been solemnised with the requisite ceremonies
Show the answer
D. must be proved to have been solemnised with the requisite ceremonies
Bhaurao Shankar Lokhande v. State of Maharashtra (1965) held that 'solemnised' in Section 17 HMA means celebrated with proper ceremonies, so unless the second marriage was performed with the essential ceremonies the offence of bigamy is not made out. Section 17 applies the bigamy provisions of the IPC (Sections 494 and 495), now Section 82 BNS.