Clauses (a), (b) and (c) of sub-section (1) of Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj and to a person who is a Buddhist, Jain or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion. The applicability of the Act is, therefore, comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by religion. . The term “Hindu” has not been defined either under the Act or the Indian Succession Act or any other enactment of the legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J. C. Bose [ILR (1902) 31 Cal 11, 15] observed: We shall not attempt here to lay down a general definition of what is meant by the term ‘Hindu’. To make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship.
Its social code is much more stringent, but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamars who profess Hinduism, but who eat beef and the flesh of dead animals, are however low in the scale included within its pale. It is easier to say who are not Hindus, and practically the separation of Hindus from non-Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not. 5.
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The Act, is, therefore, applicable to: (1) All Hindus including a Virashaiva, a Lingayat, a Brahmo, Prarthana Samajist and an Arya Samajist, (2) Buddhists; (3) Jains; (4) Sikhs. 6. In this appeal the parties are admittedly tribals, the appellant being an Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution, the Act can be applied to Scheduled Tribes as well by a further notification in terms of sub-section (2) of Section 2 of the Act.
It is not disputed before us that in the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990, both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that “the parties to the petition are two tribals, who otherwise profess Hinduism, but their marriage being out of the purview of the Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santhal customs and usage”.
Surajmani 2 Stella Kujur v. Durga Charan Hansdah 7. The appellant has, however, relied upon an alleged custom in the tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. 8.
No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status, the establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the General Clauses Act, would mean an act or omission punishable by any law by way of fine or imprisonment.
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Article 20 of the Constitution, guaranteeing protection in respect of conviction of offence, provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause (3) of the Constitution means the law made by the legislature including intra vires statutory orders and orders made in exercise of powers conferred by the statutory rules. 9. The expression “custom and usage” has been defined under Section 3(a) of the Act as: 3. a) the expression ‘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: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family; 10. For custom to have the colour of a rule or law, it is necessary for the party claiming it, to plead and thereafter prove that such custom is ancient, certain and reasonable.
Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar [(1871-72) 14 Moo IA 570, 585-86] it was held: It is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence.
It is only by means of such evidence that the courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends. 12. The importance of the custom in relation to the applicability of the Act has been acknowledged by the legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act.
The Essay on Marriage Customs In Imperial Russia
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Nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. Surajmani Stella Kujur v. Durga Charan Hansdah 3 13. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate, New Delhi stating therein that her marriage was solemnised with the respondent in Delhi “according to Hindu rites and customs”.
Alleging that the respondent has solemnised another marriage with Accused 2, the complainant pleaded: That Accused 1 has not obtained any divorce through the court of law up to this date and hence the action of Accused 1 is illegal and contravenes the provision of law as laid down under Section 494 IPC. 14. Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof.
It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non est.
The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which are normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24-10-1992 she has stated that “I am a Hindu by religion”.
The complaint was dismissed by the trial court holding, “there is no mention of any such custom in the complaint nor is there evidence of such custom. In the absence of pleadings and evidence reference to book alone is not sufficient”. The High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub-section (2) of Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. 5. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution as notified by the Constitution (Scheduled Tribes) Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990 passed in terms of Article 342 and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent.
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The trial Magistrate and the High Court have rightly dismissed the complaint of the appellant. 17. There is no merit in this appeal which is accordingly dismissed. * * * * * S. Nagalingam v. Sivagami (2001) 7 SCC 487 K. G. BALAKRISHNAN, J. – 3. The appellant S. Nagalingam married respondent complainant Sivagami on 6-9-1970. Three children were born from that wedlock. The respondent alleged that the appellant started ill-treating her and on many occasions she was physically tortured.
As a result of ill-treatment and severe torture inflicted by the appellant as well as his mother, she left her marital home and started staying with her parents. While so, the respondent came to know that the appellant had entered into a marriage with another woman on 18-6-1984, by the name of Kasturi, and that the marriage was performed in a marriage hall at Thiruthani. The respondent then filed a criminal complaint before the Metropolitan Magistrate against the appellant and six others All the accused were acquitted by the trial court. Aggrieved thereby, the respondent filed Criminal Appeal No. 7 of 1992 before the High Court of Madras. The learned Single Judge, by his judgment dated 1-11-1996 upheld the acquittal of Accused 2-7, but as regards the acquittal of the appellant, the matter was remitted to the trial court permitting the complainant to adduce evidence regarding the manner in which the marriage was solemnized. Upon remand, the priest (PW 3), who is alleged to have performed the marriage of the appellant with the second accused, Kasturi, on 18-6-1984, was further examined and the appellant was allowed further cross-examination. The learned Metropolitan Magistrate by his udgment dated 4-3-1999 acquitted the accused.
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Aggrieved by the said judgment, the respondent preferred a criminal appeal before the High Court of Madras. By the impugned judgment, the learned Single Judge held that the appellant had committed the offence punishable under Section 494 IPC. This is challenged before us. 5. The short question that arises for our consideration is whether the second marriage entered into by the appellant with the second accused, Kasturi, on 18-6-1984 was a valid marriage under Hindu law so as to constitute an offence under Section 494 IPC. . The essential ingredients of the offence under Section 494 IPC are: (i) the accused must have contracted the first marriage; (ii) whilst the first marriage was subsisting, the accused must have contracted a second marriage; and (iii) both the marriages must be valid in the sense that necessary ceremonies governing the parties must have been performed. 7. Admittedly, the marriage of the appellant with the respondent, entered into by them on 6-9-1970, was subsisting at the time of the alleged second marriage.
The Metropolitan Magistrate held that an important ceremony, namely, “saptapadi” had not been performed and therefore, the second marriage was not a valid marriage and no offence was committed by the appellant. The learned Single Judge reversing this decision in appeal held that the parties are governed by Section 7-A of the Hindu Marriage Act as the parties are Hindus residing within the State of Tamil Nadu. It was held that there was a valid second marriage and the appellant was guilty of the offence of bigamy. 8.
In the complaint filed by the respondent, it was alleged that the appellant had contracted the second marriage and this marriage was solemnised in accordance with Hindu rites on 18-6-1984 at RCC Mandapam, Thiruthani Devasthanam. To support this contention, PWs 2 and 3 were examined. PW 3 gave detailed evidence regarding the manner in which the marriage on 18-6-1984 was performed. S. Nagalingam v. Sivagami 5 9. Learned counsel for the appellant contended that as per the evidence of PW 3, it is clear that “saptapadi”, an important ritual which forms part of the marriage ceremony, was not performed and therefore, there was no valid arriage in accordance with Hindu rites. 10. It is undoubtedly true that the second marriage should be proved to be a valid marriage according to the personal law of the parties, though such second marriage is void under Section 17 of the Hindu Marriage Act having been performed when the earlier marriage is subsisting. The validity of the second marriage is to be proved by the prosecution by satisfactory evidence. 11. In Kanwal Ram v. H. P. Admn [AIR 1966 SC 614] this Court held that in a bigamy case, the second marriage is to be proved and the essential ceremony required for a valid marriage should have been performed.
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The ritual of marriage is significant in the Hindu and Catholic religions. Hinduism is based on achieving liberation from rebirth as an ongoing struggle by fulfilling one’s dharma according to the class in the caste system which one belongs to. In contrast, Catholicism is based on the interpretation of the Word of God in the form of tradition. Through shared elements in weddings such as the ...
It was held that mere admission on the part of the accused may not be sufficient. 12. The question as to whether “saptapadi” is an essential ritual to be performed, came up for consideration of this Court in some cases. One of the earliest decisions of this Court is Priya Bala Ghosh v. Suresh Chandra Ghosh [(1971) 1 SCC 864] wherein it was held that the second marriage should be a valid one according to the law applicable to the parties. In that case, there was no evidence regarding the performance of the essential ceremonies, namely, “datta homa” and “saptapadi”.
In para 25 of the judgment, it was held that the learned Sessions Judge and the High Court have categorically found that “homa” and “saptapadi” are the essential rites for a marriage according to the law governing the parties and there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. It is pertinent to note that in para 9 of the judgment it is stated that both sides agreed that according to the law prevalent amongst the parties, “homa” and “saptapadi” were essential rites to be performed to constitute a valid marriage.
Before this Court also, the parties on either side agreed that according to the law prevalent among them, “homa” and “saptapadi” were essential rites to be performed for solemnization of the marriage and there was no specific evidence regarding the performance of these two essential ceremonies. 13. Lingari Obulamma v. L. Venkata Reddy [(1979) 3 SCC 80] was a case where the High Court held that two essential ceremonies of a valid marriage, namely, “datta homa” and “saptapadi” (taking seven steps around the sacred ire) were not performed and, therefore, the marriage was void in the eye of the law. This finding was upheld by this Court. The appellant therein contended that among the “Reddy” community in Andhra Pradesh, there was no such custom of performing “datta homa” and “saptapadi”, but the High Court held that under the Hindu law, these two ceremonies were essential to constitute a valid marriage and rejected the plea of the appellant on the ground that there was no evidence to prove that any of these two ceremonies had been performed.
The finding of the High Court was upheld by this Court that there was no evidence to prove a second valid marriage. 14. In Santi Deb Berma v. Kanchan Prava Devi [1991 Supp (2) SCC 616] also, the appellant was acquitted by this Court as there was no proof of a valid marriage as the ceremonial “saptapadi” was not performed. This Court noticed in this case also that the High Court proceeded on the footing that according to the parties, performance of “saptapadi” is one of the essential ceremonies to constitute a valid marriage. 6 S. Nagalingam v. Sivagami 15.
Another decision on this point is Laxmi Devi v. Satya Narayan [(1994) 5 SCC 545] wherein this Court, relying on an earlier decision in Priya Bala held that there was no proof that “saptapadi” was performed and therefore, there was no valid second marriage and that no offence of bigamy was committed. 16. In the aforesaid decisions rendered by this Court, it has been held that if the parties to the second marriage perform traditional Hindu form of marriage, “saptapadi” and “datta homa” are essential ceremonies and without there being these two ceremonies, there would not be a valid marriage. 7. In the instant case, the parties to the second marriage, namely, the appellant Nagalingam, and his alleged second wife, Kasturi, are residents of the State of Tamil Nadu and their marriage was performed at Thiruthani Temple within the State of Tamil Nadu. In the Hindu Marriage Act, 1955, there is a State amendment by the State of Tamil Nadu, which has been inserted as Section 7-A. The relevant portion thereof is as follows: 7-A. Special provision regarding suyamariyathai and seerthiruththa marriages. (1) This section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnised in the presence of relatives, friends or other persons – (a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or (b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or c) by the tying of the thali. (2) (a) Notwithstanding anything contained in Section 7, but subject to the other provisions of this Act, all marriages to which this section applies solemnised after the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, shall be good and valid in law. b) Notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to subsection (3), all marriages to which this section applies solemnised at any time before such commencement, shall be deemed to have been, with effect on and from the date of the solemnization of each such marriage, respectively, good and valid in law. 8. Section 7-A applies to any marriage between two Hindus solemnised in the presence of relatives, friends or other persons. The main thrust of this provision is that the presence of a priest is not necessary for the performance of a valid marriage.
Parties can enter into a marriage in the presence of relatives or friends or other persons and each party to the marriage should declare in the language understood by the parties that each takes the other to be his wife or, as the case may be, her husband, and the marriage would be completed by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon any finger of the other or tie a thali.
Any of these ceremonies, namely, garlanding each other or putting a ring upon any finger of the other or tying a S. Nagalingam v. Sivagami 7 thali would be sufficient to complete a valid marriage. Sub-section (2)(a) of Section 7-A specifically says that notwithstanding anything contained in Section 7, all marriages to which this provision applies and solemnised after the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, shall be good and valid in law.
Subsection (2)(b) further says that notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, all marriages to which this section applies solemnised at any time before such commencement, shall be deemed to have been valid.
The only inhibition provided is that this marriage shall be subject to sub-section (3) of Section 7-A. We need not elaborately consider the scope of Section 7- A(3) as that is not relevant for our purpose. 19. The evidence in this case as given by PW 3 clearly shows that there was a valid marriage in accordance with the provisions of Section 7-A of the Hindu Marriage Act.
PW 3 deposed that the bridegroom brought the “thirumangalam” and tied it around the neck of the bride and thereafter the bride and the bridegroom exchanged garlands three times and the father of the bride stated that he was giving his daughter to “kanniyathan” on behalf of and in the witness of “agnidevi” and the father of the bridegroom received and accepted the “kanniyathan”. PW 3 also deposed that he performed the marriage in accordance with the customs applicable to the parties. 20.
Under such circumstances, the provisions of Section 7-A, namely, the State amendment inserted in the statute are applicable and there was a valid marriage between the appellant and Kasturi. Moreover, neither the complainant nor the appellant had any case that for a valid marriage among the members of the community to which they belong, this ceremony of “saptapadi” was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the saptapadi i. . the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. 21. “Saptapadi” was held to be an essential ceremony for a valid marriage only in cases where it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had no such case that “saptapadi” was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section 7-A are applicable to the parties.
In any view of the matter, there was a valid marriage on 18-6-1984 between the appellant and the second accused Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6-9-1970. The learned Single Judge was right in holding that the appellant committed the offence of bigamy and the matter was correctly remanded to the trial court for awarding appropriate sentence. We see no merit in this appeal and the same is dismissed accordingly. * * * * Bhaurao Shankar Lokhande v. State of Maharashtra AIR 1965 SC 1564 : (1965) 2 SCR 837 RAGHUBAR DAYAL, J. – Bhaurao Shankar Lokhande, Appellant 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 2, is the brother of the first appellant. These two appellants, together with Kamlabai and her father and Accused 5, a barber, were tried for an offence under Section 494 IPC. The latter three were acquitted by the Magistrate.
Appellant 1 was convicted under Section 494 IPC and Appellant 2 for an offence under Section 494 read with Section 114 IPC. Their appeal to the Sessions Judge was dismissed. Their revision to the High Court also failed. They have preferred this appeal by special leave. 2. The only contention raised for the appellants is that in law it was necessary for the prosecution to establish that the alleged second marriage of the Appellant 1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through.
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 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 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 Section 494 IPC that the second marriage be a valid one. 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. 4. Apart from these considerations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the Hindu Marriage Act of 1955, which made a second marriage of a male Hindu, during the lifetime of his previous wife, void.
Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of Sections 494 and 495 IPC shall apply accordingly.
The marriage between two Hindus is void in view of Section 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 appellant and Kamlabai in February 1962 cannot be said to be “solemnized”, that marriage will not be void by virtue of Section 17 of the Act and Section 494 IPC will not apply to such parties to the marriage as had a spouse living. The word “solemnize” means, in Bhaurao Shankar Lokhande v.
State of Maharashtra 9 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 therefore essential, for the purpose of Section 17 of the Act, that the marriage to which Section 494 IPC 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. 5. We are of opinion that unless the marriage which took place between Appellant 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been “solemnized” and therefore Appellant 1 cannot be held to have committed the offence under Section 494 IPC. 6.
We may now determine what the essential ceremonies for a valid marriage between the parties are. It is alleged for the respondent that the marriage between Appellant 1 and Kamlabai was in “gandharva” form, as modified by the custom prevailing among the Maharashtrians. It is noted in Mulla’s Hindu Law, 12th Edn. , 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 sub-section (1), where it is allowed by the custom of the caste to which the parties belong. 7. It is not disputed that these two essential ceremonies were not performed when Appellant 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 led evidence of what was performed at the time of the alleged marriage.
It was the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the “gandharva” form of marriage in their community. Such a statement does not mean that the custom of the community deemed what took place at the “marriage” of the Appellant 1 and Bhaurao Shankar Lokhande v. State of Maharashtra 10 Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated.
There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage. 8. What took place that night when Appellant 1 married Kamlabai, has been stated thus, by PW 1: The marriage took place at 10 p. m. Pat – wooden sheets – were brought. A carpet was spread. Accused 1 then sat on the wooden sheet. On the other sheet Accused 3 sat. She was sitting nearby Accused 1. Accused 4 then performed some Puja by bringing a Tambya – pitcher. Betel leaves and coconut was kept on the Tambya.
Two garlands were brought. Accused 2 was having one-and Accused 4 having one in his hand. Accused 4 gave the garland to Accused 3 and Accused 2 gave the garland to Accused 1. Accused nos. 1 and 3 then garlanded each other. Then they each struck each other’s forehead. In cross-examination this witness stated: It is not that Gandharva according to our custom is performed necessarily in a temple. It is also not that a Brahmin Priest is required to perform the Gandharva marriage. No ‘Mangala Ashtakas’ are required to be chanted at the time of Gandharva marriage.
At the time of marriage in question, no Brahmin was called and Mangala Ashtakas were chanted. There is no custom to blow a pipe called ‘Sher’ in vernacular. Sitaram, Witness 2 for the complainant, made a similar statement about what happened at the marriage ceremony and further stated, in the examination-in-chief: Surpan is the village of Accused 3’s maternal uncle and as the custom is not to perform the ceremony at the house of maternal uncle, so it was performed at another place. There is no custom requiring a Brahmin Priest at the time of Gandharva. He stated in cross-examination:
A barber is not required and Accused 5 was not present at the time of marriage. There is a custom that the father of girl should make to touch the foreheads of the girl and boy to each other and the Gandharva is completed by the act. 9. 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. 10. Bhagwan, Witness 3 for the complainant, made no statement about the custom, but stated in cross-examination that it was not necessary for the valid performance of gandharva marriage in their community that a Brahmin priest was required and mangala ashtakas were to be chanted.
The statement of Jeebhau, Witness 4 for the complainant, does not show how the custom has modified the essential forms of marriage. He stated in cross-examination: Bhaurao Shankar Lokhande v. State of Maharashtra 11 I had witnessed two Gandharvas before this. For the last 5 or 7 years a Brahmin Priest, a Barber and a Thakur is not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangala ashtakas. It was necessary to have a maternal uncle or any other person to make touch the foreheads of the sponsors together.
A Brahmin from Kasara and Dhandana comes to our village for doing rituals but I do not know their names. This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage. The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more necessary according to the custom in that community. Further, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies which, till then, were essential for the marriage, were given up.
If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the Hindu Marriage Act. 11. Clause (a) of Section 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. 12. We are therefore of opinion that the prosecution has failed to establish that the marriage between Appellant 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by Section 7 of the Act.
It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law. 13. It follows therefore that the marriage between Appellant 1 and Kamlabai does not come within the expression “solemnized marriage” occurring in Section 17 of the Act and consequently does not come within the mischief of Section 494 IPC even though the first wife of Appellant1 was living when he married Kamlabai in February 1962. 14.
We have not referred to and discussed the cases referred to in support of the contention that the “subsequent marriage” referred to in Section 494 IPC need not be a valid marriage, as it is unnecessary to consider whether they have been correctly decided, in view of the fact that the marriage of Appellant 1 with Kamlabai could be a void marriage only if it came within the purview of Section 17 of the Act. 15. The result is that the conviction of Appellant 1 under Section 494 IPC and of Appellant 2 under Section 494 read with Section 114 IPC cannot be sustained.
We therefore allow their appeal, set aside their convictions and acquit them. The bail bonds of Appellant 1 will stand discharged. Fines, if paid, will be refunded. * * * * * Lily Thomas v. Union of India AIR 2000 SC 1650 : (2000) 6 SCC 224 S. SAGHIR AHMAD, J. – I respectfully agree with the views expressed by my esteemed brother, Sethi, J. , in the erudite judgment prepared by him, by which the writ petitions and the review petition are being disposed of finally. I, however, wish to add a few words of my own. 2. Smt Sushmita Ghosh, who is the wife of Shri G. C. Ghosh (Mohd. Karim Ghazi) filed a writ petition [Writ Petition (C) No. 09 of 1992] in this Court stating that she was married to Shri G. C. Ghosh in accordance with Hindu rites on 10-5-1984 and since then both of them were happily living at Delhi. The following paragraphs of the writ petition, which are relevant for this case, are quoted below: 15. That around 1-4-1992, Respondent 3 told the petitioner that she should in her own interest agree to a divorce by mutual consent as he had anyway taken to Islam so that he may remarry and in fact he had already fixed to marry one Miss Vanita Gupta, resident of D-152, Preet Vihar, Delhi, a divorcee with two children in the second week of July 1992.
Respondent 3 also showed a certificate issued by the office of the Maulana Qari Mohammad Idris, Shahi Qazi dated 17-6-1992 certifying that Respondent 3 had embraced Islam. True copy of the certificate is annexed to the present petition and marked as Annexure II. 16. That the petitioner contacted her father and aunt and told them about her husband’s conversion and intention to remarry. They all tried to convince Respondent 3 and talk him out of the marriage but to no avail and he insisted that Sushmita must agree to a divorce otherwise she will have to put up with the second wife. 17.
That it may be stated that Respondent 3 has converted to Islam solely for the purpose of remarrying and has no real faith in Islam. He does not practise the Muslim rites as prescribed nor has he changed his name or religion and other official documents. 18. That the petitioner asserts her fundamental rights guaranteed by Article 15(1) not to be discriminated against on the ground of religion and sex alone. She avers that she has been discriminated against by that part of the Muslim personal law which is enforced by the State action by virtue of the Muslim Personal Law (Shariat) Act, 1937.
It is submitted that such action is contrary to Article 15(1) and is unconstitutional. 19. That the truth of the matter is that Respondent 3 has adopted the Muslim religion and become a convert to that religion for the sole purpose of having a second wife which is forbidden strictly under the Hindu law. It need hardly be said that the said conversion was not a matter of Respondent 3 having faith in the Muslim religion. 20. The petitioner is undergoing great mental trauma. She is 34 years of age and is not employed anywhere. 1. That in the past several years, it has become very common amongst the Hindu males who cannot get a divorce from their first wife, they convert to Muslim religion Lily Thomas v. Union of India 13 solely for the purpose of marriage. This practice is invariably adopted by those erring husbands who embrace Islam for the purpose of second marriage but again become reconverts so as to retain their rights in the properties etc. and continue their service and all other business in their old name and religion. 22.
That a woman’s organisation ‘Kalyani’ terribly perturbed over this growing menace and increase in a number of desertions of the lawfully married wives under the Hindu law and splitting up and ruining of the families even where there are children and when no grounds of obtaining a divorce successfully on any of the grounds enumerated in Section 13 of the Hindu Marriage Act are available, to resort to conversion as a method to get rid of such lawful marriages, has filed a petition in this Hon’ble Court being Civil Writ Petition No. 079 of 1989 in which this Hon’ble Court has been pleased to admit the same. True copy of the order dated 23-4-1990 and the order admitting the petition is annexed to the present petition and marked as Annexure III (collectively).
” 3. She ultimately prayed for the following reliefs: (a) by an appropriate writ, order or direction, declare polygamous marriages by Hindus and non-Hindus after conversion to Islam religion as illegal and void; (b) issue appropriate directions to Respondents 1 and 2 to carry out suitable amendments in the Hindu Marriage Act so as to curtail and forbid the practice of polygamy; c) issue appropriate direction to declare that where a non-Muslim male gets converted to the ‘Muslim’ faith without any real change of belief and merely with a view to avoid an earlier marriage or enter into a second marriage, any marriage entered into by him after conversion would be void; (d) issue appropriate direction to Respondent 3 restraining him from entering into any marriage with Miss Vanita Gupta or any other woman during the subsistence of his marriage with the petitioner; and (e) pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. . This petition was filed during the summer vacation in 1992. Mr Justice M. N. Venkatachaliah (as he then was), sitting as Vacation Judge, passed the following order on 9- 7-1992: The writ petition is taken on board. Heard Mr Mahajan, learned Senior Counsel for the petitioner. Issue notice. Learned counsel says that the respondent who was a Hindu by religion and who has been duly and legally married to the petitioner purports to have changed his religion and embraced Islam and that he has done only with a view to take another wife, which would otherwise be an illegal bigamy.
Petitioner prays that there should be interdiction of the proposed second marriage which is scheduled to take place tomorrow, i. e. 10th July, 1992. It is urged that the respondent, whose marriage with the petitioner is legal and subsisting cannot take advantage of the feigned conversion so as to be able to take a second wife. Lily Thomas v. Union of India 14 All that needs to be said at this stage is that if during the pendency of this writ petition, the respondent proceeds to contract a second marriage and if it is ultimately held that respondent did not have the legal capacity for the second marriage, the purported marriage would be void. . Thus, in view of the pleadings in Sushmita Ghosh case and in view of the order passed by this Court in the writ petitions filed separately by Smt Sarla Mudgal and Ms Lily Thomas, the principal question which was required to be answered by this Court was that where a non- Muslim gets converted to the “Muslim” faith without any real change of belief and merely with a view to avoid an earlier marriage or to enter into a second marriage, whether the marriage entered into by him after conversion would be void. 9.
Smt Sushmita Ghosh, in her writ petition, had clearly spelt out that her husband, Shri G. C. Ghosh, had not really converted to the “Muslim” faith, but had only feigned conversion to solemnise a second marriage. She also stated that though freedom of religion is a matter of faith, the said freedom cannot be used as a garb for evading other laws where the spouse becomes a convert to “Islam” for the purpose of avoiding the first marriage. She pleaded in clear terms that it may be stated that respondent 3 has converted to islam solely for the purpose of remarrying and has no real faith in islam. e does not practise the muslim rites as prescribed nor has he changed his name or religion and other official documents. 10. She further stated that the truth of the matter is that Respondent 3 has adopted the “Muslim” religion and become a convert to that religion for the sole purpose of having a second wife, which is forbidden strictly under the Hindu law. It need hardly be said that the said conversion was not a matter of Respondent 3 having faith in the Muslim religion. 11. This statement of fact was supported by the further statement made by her in para 15 of the writ petition in which she stated that her husband, Shri G.
C. Ghosh, told her that he had taken to “Islam” “so that he may remarry and in fact he had already fixed to marry one Miss Vanita Gupta, resident of D-152, Preet Vihar, Delhi, a divorcee with two children in the second week of July 1992”. 12. At the time of hearing of these petitions, counsel appearing for Smt Sushmita Ghosh filed certain additional documents, namely, the birth certificate issued by the Government of the Union Territory of Delhi in respect of a son born to Shri G. C. Ghosh from the second wife on 27-5-1993.
In the birth certificate, the name of the child’s father is mentioned as “G. C. Ghosh” and his religion is indicated as “Hindu”. The mother’s name is described as “Vanita Ghosh” and her religion is also described as “Hindu”. In 1994, Smt Sushmita Ghosh obtained the copies of the relevant entries in the electoral list of Polling Station 71 of Assembly Constituency 44 (Shahdara), in which the name of Shri G. C. Ghosh appeared at Sl. No. 182 while the names of his father and mother appeared at Sl. Nos. 183 and 184 respectively and the name of his wife at Sl. No. 185. 13. In 1995, Shri G.
C. Ghosh had also applied for Bangladeshi visa. A photostat copy of that application has also been filed in this Court. It indicates that in the year 1995 Shri G. C. Ghosh described himself as “Gyan Chand Ghosh” and the religion which he professed to follow was described as “Hindu”. The marriage of Shri G. C. Ghosh with Vanita Gupta had taken place on 3-9-1992. The certificate issued by Mufti Mohd. Tayyeb Qasmi described the Lily Thomas v. Union of India 15 husband as “Mohd. Karim Ghazi”, s/o Biswanath Ghosh, 7 Bank Enclave, Delhi. But, in spite of his having become “Mohd.
Karim Ghazi”, he signed the certificate as “G. C. Ghosh”. The bride is described as “Henna Begum”, D-152, Preet Vihar, Delhi. Her brother, Kapil Gupta, is the witness mentioned in the certificate and Kapil Gupta has signed the certificate in English. 14. From the additional documents referred to above, it would be seen that though the marriage took place on 3-9-1992, Shri G. C. Ghosh continued to profess “Hindu” religion as described in the birth certificate of his child born out of the second wedlock and also in the application for Bangladeshi visa.
In the birth certificate as also in the application for Bangladeshi visa, he described himself as “G. C. Ghosh” and his wife as “Vanita Ghosh” and both were said to profess “Hindu” religion. In the electoral roll also, he has been described as “Gyan Chand Ghosh” and the wife has been described as “Vanita Ghosh”. 15. It, therefore, appears that conversion to “Islam” was not the result of exercise of the right to freedom of conscience, but was feigned, subject to what is ultimately held by the trial court where G. C.
Ghosh is facing criminal trial, to get rid of his first wife, Smt Sushmita Ghosh and to marry a second time. In order to avoid the clutches of Section 17 of the Act, if a person renounces his “Hindu” religion and converts to another religion and marries a second time, what would be the effect on his criminal liability is the question which may now be considered. 23. We have already seen above that under the Hindu Marriage Act, one of the essential ingredients of a valid Hindu marriage is that neither party should have a spouse living at the time of marriage.
If the marriage takes place in spite of the fact that a party to that marriage had a spouse living, such marriage would be void under Section 11 of the Hindu Marriage Act. Such a marriage is also described as void under Section 17 of the Hindu Marriage Act under which an offence of bigamy has been created. This offence has been created by reference. By providing in Section 17 that provisions of Sections 494 and 495 would be applicable to such a marriage, the legislature has bodily lifted the provisions of Sections 494 and 495 IPC and placed them in Section 17 of the Hindu Marriage Act.
This is a well-known legislative device. The important words used in Section 494 are “marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife”. These words indicate that before an offence under Section 494 can be said to have been constituted, the second marriage should be shown to be void in a case where such a marriage would be void by reason of its taking place in the lifetime of such husband or wife. The words husband or wife” are also important in the sense that they indicate the personal law applicable to them which would continue to be applicable to them so long as the marriage subsists and they remain “husband and wife”. 24. Chapter XX of the Indian Penal Code deals with offences relating to marriage. Section 494 which deals with the offence of bigamy is a part of Chapter XX of the Code. Relevant portion of Section 198 of the Code of Criminal Procedure which deals with the prosecution for offences against marriage provides as under: 198. Prosecution for offences against marriage. (1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Lily Thomas v. Union of India 16 Provided that— (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf; b) where such person is the husband and he is serving in any of the armed forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf; (c) where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister, or, with the leave of the court, by any other person related to her by blood, marriage or adoption. (2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf. 25. It would thus be seen that the court would take cognizance of an offence punishable under Chapter XX of the Code only upon a complaint made by any of the persons specified in this section. According to clause (c) of the proviso to sub-section (1), a complaint for the offence under Section 494 or 495 can be made by the wife or on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister. Such complaint may also be filed, with the leave of the court, by any other person related to the wife by blood, marriage or adoption.
If a Hindu wife files a complaint for the offence under Section 494 on the ground that during the subsistence of the marriage, her husband had married a second wife under some other religion after converting to that religion, the offence of bigamy pleaded by her would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. It is under this Act that it has to be seen whether the husband, who has married a second time, has committed the offence of bigamy or not. Since under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnised by the husband during the subsistence of that marriage, in spite of his conversion to another religion, would be an offence triable under Section 17 of the Hindu Marriage Act read with Section 494 IPC.
Since taking of cognizance of the offence under Section 494 is limited to the complaints made by the persons specified in Section 198 of the Code of Criminal Procedure, it is obvious that the person making the complaint would have to be decided in terms of the personal law applicable to the complainant and the respondent (accused) as mere conversion does not dissolve the marriage automatically and they continue to be “husband and wife”. Lily Thomas v. Union of India 17 26. It may be pointed out that Section 17 of the Hindu Marriage Act corresponds to Sections 43 and 44 of the Special Marriage Act. It also corresponds to Sections 4 and 5 of the PaRsi Marriage & Divorce Act, Section 61 of the Indian Divorce Act and Section 12 of the Matrimonial Causes Act which is an English Act. 28. In Gopal Lal v.
State of Rajasthan [AIR 1979 SC 713] Murtaza Fazal Ali, J. , speaking for the Court, observed as under: Where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under Section 17 of the Hindu Marriage Act is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of the Hindu Marriage Act. 29.
In view of the above, if a person marries a second time during the lifetime of his wife, such marriage apart from being void under Sections 11 and 17 of the Hindu Marriage Act, would also constitute an offence and that person would be liable to be prosecuted under Section 494 IPC. While Section 17 speaks of marriage between two “Hindus”, Section 494 does not refer to any religious denomination. 30. Now, conversion or apostasy does not automatically dissolve a marriage already solemnised under the Hindu Marriage Act. It only provides a ground for divorce under Section 13. 31. Under Section 10 which provides for judicial separation, conversion to another religion is now a ground for a decree for judicial separation after the Act was amended by the Marriage Laws (Amendment) Act, 1976. The first marriage, therefore, is not affected and it continues to subsist.
If the “marital” status is not affected on account of the marriage still subsisting, his second marriage qua the existing marriage would be void and in spite of conversion he would be liable to be prosecuted for the offence of bigamy under Section 494. 32. Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second marriage, during the lifetime of the spouse, would be void under Sections 11 and 17, besides being an offence. 33. In Govt. of Bombay v. Ganga [ILR (1880) 4 Bom. 30] which obviously is a case decided prior to the coming into force of the Hindu Marriage Act, it was held by the Bombay High Court that where a Hindu married woman having a Hindu husband living marries a Mohammedan after conversion to “Islam”, she commits the offence of polyandry as, by mere conversion, the previous marriage does not come to an end. In Sayeda Khatoon v. M. Obadiah [(1944-45) 49 CWN 745] it was held that a marriage solemnised in India according to one personal law cannot be dissolved according to another personal law simply because one of the parties has changed his or her religion. In Amar Nath v. Amar Nath [AIR 1948 Lily Thomas v. Union of India 18 Lah. 29] it was held that the nature and incidence of a Vedic marriage bond, between the parties are not in any way affected by the conversion to Christianity of one of them and the bond will retain all the characteristics of a Hindu marriage notwithstanding such conversion unless there shall follow upon the conversion of one party, repudiation or desertion by the other, and unless consequential legal proceedings are taken and a decree is made as provided by the Native Converts Marriage Dissolution Act. 34. In the case of Gul Mohd. v. Emperor [AIR 1947 Nag. 121] the High Court held that the conversion of a Hindu wife to Mohammedanism does not, ipso facto, dissolve the marriage with her Hindu husband. It was further held that she cannot, during his lifetime, enter into a valid contract of marriage with another person.
Such person having sexual relations with a Hindu wife converted to Islam, would be guilty of adultery under Section 497 IPC as the woman before her conversion was already married and her husband was alive. 35. From the above, it would be seen that mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.
It also follows that if the first marriage was solemnised under the Hindu Marriage Act, the “husband” or the “wife”, by mere conversion to another religion, cannot bring to an end the marital ties already established on account of a valid marriage having been performed between them. So long as that marriage subsists, another marriage cannot be performed, not even under any other personal law, and on such marriage being performed, the person would be liable to be prosecuted for the offence under Section 494 IPC. 36. The position under the Mohammedan law would be different as, in spite of the first marriage, a second marriage can be contracted by the husband, subject to such religious restrictions as have been spelled out by brother Sethi, J. n his separate judgment, with which I concur on this point also. This is the vital difference between Mohammedan law and other personal laws. Prosecution under Section 494 in respect of a second marriage under Mohammedan law can be avoided only if the first marriage was also under the Mohammedan law and not if the first marriage was under any other personal law where there was a prohibition on contracting a second marriage in the lifetime of the spouse. 37. In any case, as pointed out earlier in the instant case, the conversion is only feigned, subject to what may be found out at the trial. 38. Religion is a matter of faith stemming from the depth of the heart and mind.
Religion is a belief which binds the spiritual nature of man to a supernatural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and denotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion are not easily interchangeable. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce Lily Thomas v.
Union of India 19 the previous marriage and desert the wife, cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution. Under Hindu law, marriage is a sacrament. Both have to be preserved. 39. I also respectfully agree with brother Sethi, J. that in the present case, we are not concerned with the status of the second wife or the children born out of that wedlock as in the instant case we are considering the effect of the second marriage qua the first subsisting marriage in spite of the husband having converted to “Islam”. 40.
I have already reproduced the order of this Court passed in Sarla Mudgal case on 23- 4-1990 in which it was clearly set out that the learned counsel appearing in that case had, after taking instructions, stated that the prayers were limited to a single relief, namely, a declaration that where a non-Muslim male gets converted to the Muslim faith without any real change of belief and merely with a view to avoid any earlier marriage or to enter into a second marriage, any marriage entered into by him after conversion would be void. 42. It may also be pointed out that in the counter-affidavit filed on 30-8-1996 and in the supplementary affidavit filed on 5-12-1996 on behalf of the Government of India in the case of Sarla Mudgal it has been stated that the Government would take steps to make a uniform code only if the communities which desire such a code approach the Government and take the initiative themselves in the matter. R. P. SETHI, J. – IA No. 2 of 1995 in Writ Petition (C) No. 588 of 1995 is allowed. 47. Interpreting the scope and extent of Section 494 of the Indian Penal Code this Court in Sarla Mudgal, President, Kalyani v.
Union of India [AIR 1995 SC 1531] held: [T]hat the second marriage of a Hindu husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate husband would be guilty of the offence under Section 494 IPC. The findings were returned answering the questions formulated by the Court in para 2 of its judgment. 48. The judgment in Sarla Mudgal case is sought to be reviewed, set aside, modified and quashed by way of the present review and writ petitions filed by various persons and Jamat-e- Ulema Hind and another. It is contended that the aforesaid judgment is contrary to the fundamental rights as enshrined in Articles 20, 21, 25 and 26 of the Constitution of India. 59.
We are not impressed by the arguments to accept the contention that the law declared in Sarla Mudgal case cannot be applied to persons who have solemnised marriages in violation of the mandate of law prior to the date of judgment. This Court had not laid down any new law but only interpreted the existing law which was in force. It is a settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because concededly the court does not legislate but only gives an interpretation to an existing law. We do not agree with the arguments that the second marriage by a convert male Muslim has been made an offence only Lily Thomas v. Union of India 20 by judicial pronouncement.
The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone. 60. Even otherwise we do not find any substance in the submissions made on behalf of the petitioners regarding the judgment being violative of any of the fundamental rights guaranteed to the citizens of this country. The mere possibility of taking a different view has not persuaded us to accept any of the petitions as we do not find the violation of any of the fundamental rights to be real or prima facie substantiated. 61. The alleged violation of Article 21 is misconceived.
What is guaranteed under Article 21 is that no person shall be deprived of his life and personal liberty except according to the procedure established by law. It is conceded before us that actually and factually none of the petitioners has been deprived of any right of his life and personal liberty so far. The aggrieved persons are apprehended to be prosecuted for the commission of offence punishable under Section 494 IPC. It is premature, at this stage, to canvass that they would be deprived of their life and liberty without following the procedure established by law. The procedure established by law, as mentioned in Article 21 of the Constitution, means the law prescribed by the legislature.
The judgment in Sarla Mudgal has neither changed the procedure nor created any law for the prosecution of the persons sought to be proceeded against for the alleged commission of the offence under Section 494 IPC. 62. The grievance that the judgment of the Court amounts to violation of the freedom of conscience and free profession, practice and propagation of religion is also far-fetched and apparently artificially carved out by such persons who are alleged to have violated the law by attempting to cloak themselves under the protective fundamental right guaranteed under Article 25 of the Constitution. No person, by the judgment impugned, has been denied the freedom of conscience and propagation of religion.
The rule of monogamous marriage amongst Hindus was introduced with the proclamation of the Hindu Marriage Act. Section 17 of the said Act provided that any marriage between two Hindus solemnised after the commencement of the Act shall be void if at the date of such marriage either party had a husband or wife living and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly. The second marriage solemnised by a Hindu during the subsistence of a first marriage is an offence punishable under the penal law. Freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon a similar freedom of other persons.
Under the constitutional scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit this belief and ideas in a manner which does not infringe the religious right and personal freedom of others It was contended in Sarla Mudgal that making a convert Hindu liable for prosecution under the Penal Code would be against Islam, the religion adopted by such person upon conversion. Such a plea raised demonstrates the ignorance of the petitioners about the tenets of Islam and its teachings. The word “Islam” means “peace and submission”. In its religious connotation it is understood as “submission to the will of God”; according to Fyzee (Outlines of Mohammedan Law, 2nd Edn. ), in its secular sense, the establishment of peace. The word “Muslim” in Arabic is the active principle of Islam, which means Lily Thomas v. Union of India 21 acceptance of faith, the noun of which is Islam.
Muslim law is admitted to be based upon a well-recognised system of jurisprudence providing many rational and revolutionary concepts, which could not be conceived of by the other systems of law in force at the time of its inception. Sir Ameer Ali in his book Mohammedan Law, Tagore Law Lectures, 4th Edn. , Vol. 1 has observed that the Islamic system, from a historical point of view was the most interesting phenomenon of growth. The small beginnings from which it grew up and the comparatively short space of time within which it attained its wonderful development marked its position as one of the most important judicial systems of the civilised world. The concept of Muslim law is based upon the edifice of the Shariat.
Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co-wives in law is a condition precedent. Even under the Muslim law plurality of marriages is not unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic law to urge that the convert is entitled to practise bigamy notwithstanding the continuance of his marriage under the law to which he belonged before conversion. The violators of law who have contracted a second marriage cannot be permitted to urge that such marriage should not be made the subject-matter of prosecution under the general penal law prevalent in the country.
The progressive outlook and wider approach of Islamic law cannot be permitted to be squeezed and narrowed by unscrupulous litigants, apparently indulging in sensual lust sought to be quenched by illegal means, who apparently are found to be guilty of the commission of the offence under the law to which they belonged before their alleged conversion. It is nobody’s case that any such convertee has been deprived of practising any other religious right for the attainment of spiritual goals. Islam which is a pious, progressive and respected religion with a rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violatoRs of law. 63.
Learned counsel appearing for the petitioners have alleged that in view of the judgment in Sarla Mudgal their clients are liable to be convicted without any further proof. Such an apprehension is without any substance inasmuch as the person seeking conviction of the accused for a commission of offence under Section 494 is under a legal obligation to prove all the ingredients of the offence charged and conviction cannot be based upon mere admission made outside the court. To attract the provisions of Section 494 IPC the second marriage has to be proved besides proving the previous marriage. Such marriage is further required to be proved to have been performed or celebrated with proper ceremonies.
This Court in Kanwal Ram v. H. P. Admn. [AIR 1966 SC 614] held that in a bigamy case the second marriage as a fact, that is to say the essential ceremonies constituting it, must be proved. Admission of marriage by the accused by itself was not sufficient for the purpose of holding him guilty even for adultery or for bigamy. In Bhaurao Shankar Lokhande v. State of Maharashtra [AIR 1965 SC 1564] this Court held that a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed. 65. Besides deciding the question of law regarding the interpretation of Section 494 IPC, one of the Hon’ble Judges (Kuldip Singh, J. after referring to the observations made by this Court in Mohd. Ahmed Khan v. Shah Bano Begum [AIR 1985 SC 945] requested the Government of India through the Prime Minister of the country to have a fresh look at Article Lily Thomas v. Union of India 22 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throughout the territory of India”. In that behalf direction was issued to the Government of India, Secretary, Ministry of Law & Justice to file an affidavit of a responsible officer indicating therein the steps taken and efforts made towards securing a uniform civil code for the citizens of India. On the question of a uniform civil code R. M. Sahai, J. he other Hon’ble Judge constituting the Bench suggested some measures which could be undertaken by the Government to check the abuse of religion by unscrupulous persons, who under the cloak of conversion were found to be otherwise guilty of polygamy. It was observed that: Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. It was further remarked that: The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about a comprehensive legislation in keeping with modern-day concept of human rights for women. 66. In Maharshi Avadhesh v.
Union of India [1994 Supp (1) SCC 713] this Court had specifically declined to issue a writ directing the respondents to consider the question of enacting a common civil code for all citizens of India holding that the issue raised being a matter of policy, it was for the legislature to take effective steps as the Court cannot legislate. 70. In the circumstances the review petition as also the writ petitions having no substance are hereby disposed of finally with a clarification regarding the applicability of Article 44 of the Constitution. All interim orders passed in these proceedings including the stay of criminal cases in subordinate courts, shall stand vacated. No costs. ORDER OF THE COURT 71.
In view of the concurring, but separate judgments the review petition and the writ petitions are disposed of finally with the clarifications and interpretation set out therein. All interim orders passed in these petitions shall stand vacated. * * * * * NOTE: The Supreme Court in John Vallamattom v. Union of India [ (2003) 6 SCC 611] has observed: “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies. ” * * * * * Pinninti Venkataramana v. State AIR 1977 AP 43 B. J. DIVAN, C. J. Since both these matters raise a common point of law, both of them have been placed before the Full Bench for deciding the following question: Whether a Hindu marriage governed by the provisions of the Hindu Marriage Act, 1955 where the parties to the marriage or either of them are below their respective ages as set out in Clause (iii) of Section 5 of the Hindu Marriage Act, is void ab initio and is no marriage in the eye of law? In Crl. R. C. 190 of 1975, the facts are that the petitioner No. 1 was convicted by the Judicial First Class Magistrate, Rajam, for an offence punishable under Section 494 I. P. C. and petitioner No. 2 was convicted for an offence punishable under Section 494 read with Section 109, I. P. C.
Both of them were sentenced to rigorous imprisonment for six months. Both of them filed appeals and the appellate Court confirmed the convictions of both the petitioners, but modified their sentences to that of payment of Rs 200/- and in default of payment of fine, each of the petitioners was sentenced to undergo rigorous imprisonment for one month. Against their convictions and sentences, the petitioners came by way of revision to this High Court. 2. When the revision application came up before one of us (Muktadar J. ), on behalf of the petitioners, reliance was placed on the judgment of the Division Bench of this Court in P. A. Saramma v. G. Ganapatulu [AIR 1975 AP 193].
In that case, the Division Bench has held that a marriage, which is in contravention of Clause (iii) of Section 5 of the Hindu Marriage Act is void ab initio and is no marriage in the eye of law. Since it was felt that the view taken by the Division Bench was not in accordance with the provisions of the Hindu Marriage Act, the matter was referred to a larger Bench. Thereafter, the matter came up before Chinnappa Reddy and Punnayya, JJ. and, by their order dated March 22, 1976, they referred the matter to a Full Bench and thereafter the matter has come before us. 3. In Criminal Miscellaneous Petition No. 809 of 1976, the Ist petitioner is the husband and others are co-accused with him in a complaint filed by the Ist respondent wife in the Court of the Judicial First Class Magistrate, Siddipet, Medak District.
The Ist respondent in this Criminal Miscellaneous Petition filed a criminal complaint, C. C. No. 323 of 1976, in the Court of the Judicial First Class Magistrate, Siddipet, against her husband (Ist petitioner) and ten others alleging that her husband had committed an offence punishable under Section 494 of the Indian Panel Code and that the other accused had committed an offence punishable under Section 494 read with Section 109 I. P. C. According to the petitioner in this petition, at the time of the marriage i. e. in the year 1959 he was 13 years of age and the Ist respondent was 9 years of age. The husband contends that in view of the decision of the Division Bench of this Court in P. A. Saramma v. G.
Ganapatulu, the marriage between him and the Ist respondent was void ab initio and no marriage in the eye of law and hence the action of the Ist petitioner in marrying a girl did not amount to an offence punishable under Section 494. Under these circumstances, in this criminal miscellaneous petition, the petitioners have prayed that the prosecution in C. C. No. 323 of 1976 on the file of the Judicial First Class Pinninti Venkataramana v. State 24 Magistrate, Siddipet, be quashed. Since the question involved in this criminal miscellaneous petition is the same as the one raised in Criminal Revision Application No. 190/75, which stood referred to a Full Bench, this criminal miscellaneous petition was also directed to be posted along with the criminal revision application. It is under these circumstances that both these matters have been heard together by this Full Bench. 4.
In order to appreciate the rival contentions in these cases, it is necessary to refer to some of the provisions of the Hindu Marriage Act, 1955. The preamble of the Act shows that it is an Act to amend and codify the law relating to marriage among Hindus. Section 4 provides: Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
It is well settled law that the old Hindu law, as it prevailed prior to the enactment of the Hindu Marriage Act is to continue in force except to the extent to which that law was altered by the provisions of the Hindu law, as it prevailed prior to the enactment of the Hindu Marriage Act, 1955. It is in the light of this well settled principle that we have to approach the question that arises for our consideration. 5. Section 5 lays down the conditions for a Hindu marriage and it is in these terms: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely; (i) neither party has a spouse living at the time of the marriage; (ii) neither party is an idiot or a lunatic at the time of the marriage; (iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage; iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; (vi) where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any, has been obtained for the marriage. Section 11 lays down as to when marriages governed by the Act are to be considered void marriages. It is in these terms: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any of the conditions specified in clauses (i), (iv) and (v) of Section 5. Pinninti Venkataramana v. State 25
It is thus clear that, by virtue of Section 11, any marriage which is solemnized in contravention of any of the conditions specified in clauses (i) (iv) and (v) of Section 5 is null and void and if a Court of competent jurisdiction is called upon to make a pronouncement, the court may, on an application presented by either party to the marriage, declare such a marriage to be null and void. Thus, out of the six clauses of Section 5, it is only in connection with clauses (i), (iv) and (v) of Section 5 that the Legislature has declared that the contravention of any one of the conditions mentioned in those three clauses will render the marriage null and void.
These, three situations are: (1) that neither party to the marriage has a spouse living at the time of the marriage ; (2) that the parties are not within the degrees of prohibited relationship, unless, the custom or usage governing each of them permits of a marriage between the two; (3) that the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. It is only if the marriage solemnized after the commencement of the Hindu Marriage Act, 1955 contravenes any one of those categories of clauses (i) (iv) and (v) of Section 5 that under Section 11, it is to be treated as null and void. 6. Section 12 of the Hindu Marriage Act deals with voidable marriages. Sub-section (1) provides that any marriage whether solemnized before or after the commencement of the Act, shall be voidable and may be annulled by a decree of nullity on any one grounds specified in clauses (a) to (d).
Clause (b) of sub-section (1) provides that, if the marriage is in contravention of the condition specified in clause (ii) of Section 5, the marriage shall be voidable and may be annulled by a decree of nullity. Clause (c) provides that, if the consent of the petitioner or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud, the marriage may be annulled by a decree of nullity. Clause (ii) of Section 5 requires that neither party is an idiot or a lunatic at the time of the marriage and clause (vi) provides that, where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any, has to be obtained. 7.
Now the following points of distinction between Sections 11 and 12 have to be noted: (1) Section 11 applies only to marriages solemnized after the commencement of the Hindu Marriage Act; whereas Section 12 (1) applies to any marriage whether solemnized before or after the commencement of the Act and (2) whereas violation of the provisions of Clauses (i) (iv) and (v) of Section 5 renders the marriage null and void, violation of the different clauses of Section 5 mentioned in Section 12 (1) renders the marriage voidable and if the requirement of one or the other clauses of Section 12 are satisfied, the marriage may be annulled by a decree of nullity of a Court having competent jurisdiction. Now, it is worth noting that violation of clause (ii) of Section 5 renders the marriage viodable and not null and void. Though, under clause (vi) of Section 5, in case the bride has not completed the age of eighteen years, the consent of her guardian is obtained it is not the absence of the consent of the guardian that renders the marriage voidable, but it is only when the consent of the guardian in marriage, which is required under Section 5, is vitiated by force or fraud that the marriage is liable to be annulled by a decree of nullity on the ground that it is voidable. Even though none of the clauses of S. refers to the requirement of consent of the petitioner, it is only if the consent of the petitioner before the court is vitiated by force or fraud that the Pinninti Venkataramana v. State 26 marriage becomes voidable and liable to be annulled by a court of competent jurisdiction. It is thus clear that neither is Section 11 nor in Section 12 is there any provision for what is to happen if the condition regarding the ages of the parties to the marriage, by clause (iii) of Section 5, is voilated in any particular case. When the provisions of Sections 11 and 12 are read together, it becomes clear that, out of the six clauses of Section 5, violation of Clauses (i) (iv) and (v) renders the marriage null and void, whereas violation of clause (ii), renders the marriage voidable.
Voilation of clause (vi) in the sense that the consent of the guardian in marriage has been obtained by force or fraud, again renders the marriage voidable. But neither in Section 11 nor in Section 12 is there any provision for what is to happen if a marriage is soleminzed in violation of the provisions of cl. (iii) of Section 5. 8. It is true that the opening words of Section 5 would indicate that each one of the six clauses can be construed as laying down a condition precedent for solemnization of marriage. However, the legislature has given an indication in Section 11 that it is only contravention of clauses (i) (iv) and (v) of S. 5 that renders the marriage void ab initio i. e. ull and void and the court may subsequently declare the marriage null and void by a decree of nullity if either party chooses to present a petition in that behalf. The Legislature has also indicated that a marriage solemnized in contravention of clause (ii) of Section 5 does not render the marriage null and void, but renders it voidable and liable to be annulled by a decree of nullity; whereas, if the bride has not completed the age of eighteen years, it is not the absence of the consent of the guardian in marriage that renders the marriage voidable and liable to be annulled, but it is only if the consent of the guardian was obtained by (force) or fraud, in a case governed by clause (vi) of Section 5 that the marriage becomes voidable and liable to be annulled by a decree of nullity.
Thus the scheme of the Act is that it is not the violation of any one of the six conditions in Section 5 that renders the marriage null and void or voidable but it is only the violation of clauses (i), (iv) and (v) which renders the marriage null and void. Violation of clause (ii) renders the marriage voidable and violation of clause (vi) ipso facto does not render the marriage voidable, but it is only when the consent of the guardian, is obtained by force or fraud, that the marriage becomes voidable. In view of the scheme of the Act, we have to examine as to what are the consequences of violation of clause (iii) since the legislature in terms, has not provided for what is to happen in case of violation of clause (iii) of Section 5. The only indication that is to be found in the Hindu Marriage Act is in Section 18, which provides punishment for contravention of certain conditions.
But violation of clause (i) of Section 5, which requires that neither party has a spouse living at the time of the marriage is punishable not under Section 18, but under Section 17, which provides that any marriage between two Hindus solemnized after the commencement of the Act is void if, at the date of such marriage, either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly. It is noticeable that, in case of contravention of clause (i), both Section 17 and Section 11 provide that the marriage is void, but Section 17 further provides for punishment for such contravention. Thus, the Legislature has not thought fit to provide for punishment for any contravention of clause (ii) of Section 5. 9. This analysis of the different provisions of the Hindu Marriage Act clearly brings out the fact that the Legislature itself has made a distinction between contravention of tone or the Pinninti Venkataramana v. State 27 other clauses of Section 5 and such contravention is to be visited with different consequences.
In case of contravention of some clauses, the marriage is null and void and in case of contravention of some other clauses, it becomes voidable and in case of contravention of another clause, it is voidable if the consent of guardian is vitiated by force or fraud; but the Legislature, in terms, has not provided except by way of punishment in Section 18 for violation of Clause (iii) of Section 5. Therefore, it is not possible to read the different clauses of Sec. 5 as laying down conditions precedent. 10. It may be pointed out that, under the Child Marriage Restraint Act, 1929 which was in force prior to the enactment of the Hindu Marriage Act 1955, the legal position was that though the persons connected with the solemnization of a marriage in contravention of the provisions of the Child Marriage Restraint Act were liable for punishment, the marriage itself was not rendered void or null and void. 11. This position was clarified by the decision of Jagadisan, J. sitting singly, in Sivanandy v. Bhagavathyamma [AIR 1962 Mad. 400].
There, it was pointed out that a child marriage, though prohibited by Child Marriage Restraint Act is not rendered invalid by any provision therein and that the contravention of the provisions of that Act does not render the marriage invalid as the validity of the marriage is a subject beyond the scope of the Act. It was also laid down in that decision: A marriage under the Hindu law by a minor male is valid even though the marriage was not brought about on his behalf by his natural or lawful guardian. The marriage under the Hindu Law is a sacrament and not a contract. The minority of an individual may operate as a bar to his or her incurring contractual obligations. But it cannot be impediment in the matter of performing a necessary ‘samskars’.
A minor’s marriage without the consent of the guardian can be held to be valid also on the application of the doctrine of factum valet. Consequently the marriage of a Hindu minor cannot be held to be invalid for want of proof that his guardian consented to it. In this connection, Jagadisan, J. , relied upon the earlier decision of the Madras High Court in Venkatachayulu v. Rangacharyulu [(1891) ILR 14 Mad 316]. In that case, the facts before the Division Bench of the Madras High Court were that a Vaishnava Brahmin girl was given to the plaintiff in marriage by her mother without the consent of her father who subsequently repudiated the marriage. It appeared that the mother falsely informed the Brahman, who solemnized the marriage, that the father had consented to it.
It was held that the plaintiff was entitled to a declaration that the marriage was valid and to an injunction restraining the parents from marrying the bride to any one else. At page 318 of the report, the Division Bench observed: There can be no doubt that a Hindu marriage is a religious ceremony. According to all the texts it is a samskaram or sacrament, the only one prescribed for a woman and one of the principal religious rites prescribed for purification of the soul. It is binding for life because the marriage rite completed by saptapadi or the walking of seven steps before the consecreted fire creates a religious tie when once created, cannot be untied. It is not a mere contract in which a consenting mind is indispensable. The Pinninti Venkataramana v. State 28 erson married may be minor or even of unsound mind, and yet if the marriage rite is duly solemnized, there is a valid marriage. We respectfully agree with this statement of law as it prevailed prior to the enactment of the Hindu Marriage Act, 1955. As Jagadisan, J. pointed out in Sivanandy v. Bhagavathyamma, the doctrine of factum valet was applicable to a case of this kind. The doctrine of factum valet was quite well known to Hindu Law text-writers and the relevant Sanskrit quotation is: (I. )e. a fact cannot be altered by a hundred texts. The doctrine in the case of the marriage of a minor was that the factum of marriage, which was solemnized, could not be undone by reason of a large number of legal prohibitions to the contrary.
Under section 4 of the Hindu Marriage Act, it is only when there is a clear provision in the Hindu marriage Act that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage Act shall cease to have effect in so far as it is inconsistent with any of the provisions of the Act. 12. In P. A. Saramma v. G. Ganapatulu, a Division Bench of this High Court consisting of Obul Reddi, C. J. and Madhusudan Rao, J. held that a Marriage between the bridegroom and the bride, if their ages do not satisfy the requirements of clause (iii) of Section 5, cannot be solemnized as it is prohibited under clause (iii) of Section 5, and that it is not necessary that, in the event of contravention of clause (iii) of Section 5, either party to the marriage should rush to the Court for declaring that marriage as null and void and that such a marriage is void ab initio and is no marriage in the eye of law.
The Division Bench proceeded to hold that violation of clause (iii) of Section 5 would render the marriage null and void ab initio, though no specific provision is made for the consequence of contravention of clause (iii) of Section 5 either in Section 11 or in Section 12. The learned Judges of the Division Bench read the different clauses of Section 5 as laying down conditions precedent. With respect, we are unable to agree with this conclusion of the learned Judges of the Division Bench in P. A. Saramma v. Ganapatulu. We find that the consequences of accepting the view of the Division Bench would be very serious. It is well settled principle in the law relating to marriages that the Court should lean against the interpretation of any provision of law which is liable to render innocent children of the marriages bastards. It seems that his aspect of bastardized children, who were otherwise innocent and who would be treated as illegitimate children of the couple was not present to the minds of the learned Judges who decided the case in P. A. Saramma v. G. Ganapatulu. At this juncture, it may be pointed out that, under Section 16 of the Hindu Marriage Act, where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12 any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity.
It is obvious that this provision regarding legitimacy of children would not apply to children begotten by a couple that was married in contravention of the provisions of clause (iii) of Section 5, because neither Section 11 nor Section 12 provides for any consequence that might result from contravention of clause (iii) of Section 5 and the children would be bastards taking the view Pinninti Venkataramana v. State 29 that appealed to the Division Bench in P. A. Saramma v. G. Ganapatulu. 13. If each of the clauses in Section 5 is to be treated as a condition precedent, the violation of which would render the marriage void ab initio, the Legislature itself would not have given out its mind by providing for contravention of the different clauses of Section 5 differently. This is a further ground on which we respectfully disagree with the view taken by the learned Judges in P. A. Saramma v. G. Ganapatulu. 15. In Panchadi Chitti Venkanna v. Panchadi Mahalakshmi, Transferred Appeal No. 578 of 1973 and T. A. No. 46 of 1972 decided by Kondiah, and Lakshmaiah, JJ. on December 23, 1975 (1976 2 AWR 45), which arose out of matrimonial litigation, the husband sought to rely upon the decision in P. A. Saramma v. G. Ganapatulu. But the Division Bench consisting of Kondaiah and Lakshmaiah, JJ. distinguished that earlier decision on the ground that, in the case before them, the marriage was solemnized in 1953 prior to the enactment of the Hindu Marriage Act, 1955, and, therefore, the provisions of the Hindu Marriage Act would not apply and it could not be said that there was violation of clause (iii) of Section 5 of the Hindu Marriage Act, when the marriage was performed. 6. We find that barring the view taken by a single Judge of the Punjab and Haryana High Court in Krishni Devi v. Tulsan Devi [ AIR 1972 P & H 305] there is no other reported case taking the same view as the view which appealed to Obul Reddi, C. J. and Madhusudan Rao, J. P. A. Saramma v. G. Ganapatulu. On the other hand, we find that there are several decisions of the other High Courts including the decision of a Division Bench of the Punjab and Haryana High Court which have taken a contrary view. In Mohinder Kaur v. Major Singh [AIR 1972 P & H 184] the Division Bench of the Punjab and Haryana High Court consisting of Pandit and Gopal Singh, JJ. eld that the marriage in contravention of the clause is not a nullity and hence such contravention cannot be pleaded as a ground in answer to a petition for restitution of conjugal rights. The Division Bench further held: The question for decision is whether a contravention of Section 5 (iii) of the Act is a ground for judicial separation or for nullity of marriage or for divorce. If it is not so, then it cannot be pleaded in defence by the appellant to a petition for restitution of conjugal rights made by the respondent in this case. The grounds for judicial separation, nullity of marriage and divorce are given in Sections 10, 11 and 13 of the Act respectively.
The contravention of Section 5 (iii) of the Act does not admittedly find any mention in any of these three sections. It was also observed that the infringement of clause (iii) of Section 5 did not affect the tie of marriage itself and render the marriage either void or voidable. The view of a learned single Judge was confirmed by the Division Bench. But it must be pointed out that there is no elaborate discussion beyond what has been pointed out above in the decision of this Division Bench of the Punjab and Haryana High Court. 17. In Kalawati v. Devi Ram [AIR 1961 HP 1] the Judicial Commissioner of Himachal Pradesh held that the minority of the wife or of her guardian in marriage is by itself, not a ground for getting it declared null and void under Sec. 1 or for its annulment under Section 12 and there it could not be said that the Legislature was oblivious and had inadvertently omitted to provide for the avoidance of marriage on that ground of minority of the bride and Pinninti Venkataramana v. State 30 her guardian in marriage: that the omission was deliberate and that it is not for the Courts to scan the wisdom of the legislature and speculate on the reasons which led the legislature to make or not to make certain provisions. We find that the learned Judicial Commissioner has carefully gone into the different provisions of the Hindu Marriage Act and come to his own conclusions on these lines. 18. In Premi v.
Daya Ram [AIR 1965 HP 15] which was also decided by the then Judicial Commissioner of Himachal Pradesh, it was held: It was not the intention of the legislature that contravention of every and any condition, specified in Section 5 would render a Hindu Marriage void. The contravention of only any of the three conditions specified in clauses (i), (iv) and (v) of Section 5 would render a Hindu Marriage null and void. Therefore the marriage of a minor wife is neither void nor voidable, though it contravened the condition, specified in clause (vi) of Section 5 of the Act inasmuch as the consent of her guardian to the marriage was not obtained. 19. In Ma Hari v. Director of Consolidation [1969 All LJ 623], Satish Chandra, J. itting singly, held that, though the conduct of solemnizing a marriage in contravention of clause (iii) of Section 5 of the Hindu Marriage Act may result in the punishment of the marrying spouses, yet the marriage would not become null and void with its far reaching and serious consequences and that the marriage would remain valid in law and enforceable and recognizable in a court of law. The same view was also taken by the Orissa High Court in Budhi Sahu v. Lohurani Sahuni [ILR (1970) Cut 1215]. Sa Acharya, J. sitting singly held: Clause (iii) of Section 5, providing for the age of the bridegroom and the bride is thus specifically excluded from the operation of the provisions of Section 11 of the Act.
The conditions rendering a Hindu Marriage null and void mentioned in Section 11 of the Act are exhaustive, and it is only on those grounds a court can declare by a decree of nullity that a marriage solemnised after the commencement of the Act is null and void. Therefore, a marriage between a bridegroom, who has not completed the age of eighteen years and a bride who has not completed the age of fifteen years at the time of the marriage, coming within the provisions of clause (iii) of Section 5, and/or a marriage in which the permission as required under clause (vi) of the said section is not obtained, is not ipso jure, void under the provisions of Section 11 of the Act. 20. In Gindan v.
Barelal [AIR 1976 MP 83], a Division Bench of the Madhya Pradesh High Court held that a marriage solemnized in contravention of age mentioned in Section 5 (iii) is neither void ab initio nor even voidable; that such violation of Section 5 (iii) does not find place either in section 11 or in Section 12 of the Act; that it is only punishable as an offence under Section 18; and that the marriage selemnized would remain valid, enforceable, and recognizable in Courts of law. 21. This review of the case law discloses that barring a single Judge of the Punjab and Haryana High Court in Krishni Devi v. Tulsan Devi and the Division Bench of this Court in P. A. Saramma v. G. Ganapatulu in all other reported cases, different High Courts have held that the contravention of clause (iii) of Section 5 does not render the marriage void ab initio or voidable. In our opinion, the view taken by these different High Courts is correct and we Pinninti Venkataramana v. State 31 got confirmation of the view, which we are adopting on the basis of the reasoning set out hereinabove, from the decisions of the different High Courts. 22.
It may be pointed out that when the provisions of the Hindu Marriage Act were extensively amended in 1976, by the Marriage Laws (Amendment) Act, 1976 (Act No. 68 of 1976) the provisions of clause (iii) of Section 5 have not been interfered with. Section 13 of the Hindu Marriage Act, which provides for different grounds on which decree for dissolution of marriage can be granted, has been amended and under sub-section (2) of Section 13, a new clause (iv) has been inserted so that after the amendment, a wife may present a petition for dissolution of her marriage by a decree of divorce on the ground that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the ge of eighteen years and the Explanation to clause (iv) provides: This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, “This clause (iv) inserted in sub-section (2) of Section 13 clearly indicates the mind of the Legislature that the violation of Clause (iii) of Section 5 is not to render the marriage either void or voidable; but in case the bride was below the age of fifteen years at the time of solemnization of the marriage and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years, a decree for divorce can be obtained, whether the marriage was consummated or not. If the marriage performed in contravention of clause (iii) of Section 5 was void ab initio, there was no necessity to insert clause (iv) in sub-section (2) of Section 13.
It may be pointed out that, by insertion of this clause (iv), the Legislature has given to Hindu besides an option of what is known in Mohammadan Law as Khyar-ul-bulugh (Option of Puberty).
But the Legislature has not proceeded on the footing that the marriage between the spouses, when it is performed in violation of clause (iii) of Section 5, is void ab initio. This amendment reinforces and confirms the view that we are taking on a pure interpretation of the different provisions of the Hindu Marriage Act, 1955 even as it stood prior to its amendment by the Marriage Laws (Amendment) Act 1976. 23. For these reasons we hold that the decision of the Division Bench of this High Court in P. A. Saramma v. G.
Ganapatulu does not lay down the correct law and it must be held that any marriage solemnized in contravention of clause (iii) of Section 5 is neither void nor voidable, the only consequence being that the persons concerned are liable for punishment under Section 18 and further if the requirements of clause (iv) of sub-section (2) of Section13, as inserted by the Marriage Laws (Amendment) Act 1976 are satisfied, at the instance of the bride, a decree for divorce can be granted. Barring these two consequences, one arising under Section 18 and the other arising under clause (iv) of sub-section (2) of Section 13, after the enactment of the Marriage Laws (Amendment) Act, 1976, there is no other consequence whatsoever resulting from the contravention of the provisions of clause (iii) of Section 5. Under these circumstances so far as Criminal Revision Case No. 190/75 is concerned, the matter will now go before a single Judge for decision according to law as explained by us. So far as Criminal Miscellaneous Petition No. 09/76 is concerned, the only ground on which the order of the Judicial First Class Magistrate, Siddipet, is sought to be quashed is that the Pinninti Venkataramana v. State 32 marriage between the parties was void, since the marriage was solemnized in 1959 when the bridegroom was 13 years of age and the bride was 9 years of age and relying upon the decision in P. A. Saramma v. G. Ganapatulu it was sought to be argued that the complaint filed by the wife alleging that the husband had committed an offence punishable under Section 494 I. P. C. and that the other accused had committed an offence punishable under Section 494 read with Section 109, I. P. C. must be quashed.
This relief cannot be granted in the view we have taken. Criminal Miscellaneous petition No. 809/76 is therefore, dismissed. Ordered accordingly. * * * * * Asha Qureshi v. Afaq Qureshi AIR 2002 MP 263 V. K. AGARWAL, J. – This appeal is under S. 29 of the Special Marriage Act, 1954 (“Act”), is directed against the judgment and decree dated 14. 10. 1996, in Civil Suit No. 59- A/90, by Fourth Additional District judge, Jabalpur, declaring the marriage between the parties as null and void, by a decree of nullity. 2. Facts not in dispute are that the parties were married on 23. 1. 1990 at Jabalpur, in accordance with the ‘Act. ’ They lived as husband and wife for a period of about one year.
Subsequently, the relations between the parties became strained and they started living separately. The respondent filed a petition under Ss. 34 and 25 of the ‘Act,’ seeking a decree of nullity and of declaration of their marriage as null and void. It was averred by the respondent/husband that after the marriage between the parties on 23. 1. 1990, the respondent/husband came to know that the appellant/wife was already married to one Motilal Vishwakarma. Motilal Vishwakarma had died prior to marriage of the parties. It was further averred by the respondent/husband that the fact of her marriage with Motilal Vishwakarma was suppressed by the appellant/wife, and that the respondent/husband agreed to marry her believing that she was a virgin.
It was averred by the respondent/husband that the appellant/wife by suppressing from him the aforesaid fact has exercised fraud on him. 3. The appellant/wife denied the allegations as above. It was denied by her that she suppressed any material fact or exercised fraud. According to her, at the time of marriage of parties the respondent/husband was fully aware that the appellant/wife is a widow. 4. The learned Trial Court framed several issues in the case including as to whether the appellant/wife suppressed the fact that she was a widow and married the respondent/husband by practicing fraud? Some other issues were also framed which are not relevant for the disposal of this appeal. 5.
The learned Trial Court held that the appellant/wife suppressed the fact of her earlier marriage with Motilal Vishwakarma, and thus the consent of the respondent/ husband for the marriage was obtained by fraud. 6. The learned counsel for the appellant/wife assailed the finding as above. It was submitted that the appellant and the respondent were known to each other for a long time prior to the marriage and the respondent/husband was fully aware that the appellant/wife was married earlier and her first husband had died. It was, therefore, submitted that there was no suppression of any material fact so as to constitute exercise of fraud by the appellant/wife. 7. The learned counsel for the respondent/husband however, supported the impugned judgment.
It was submitted by the learned counsel for the respondent/husband that material facts, viz. her earlier marriage were never intimated by her to the respondent/husband. It was submitted that had the respondent/husband known about the earlier marriage of the appellant, he would not have entered into marital ties with her. It was, therefore, submitted that the trial Court was justified in holding that consent of the respondent/husband for marriage was obtained by the appellant/wife by exercising fraud. It would be useful to reproduce S. 25 of Asha Qureshi v. Afaq Qureshi 34 the Act which lays down the conditions in which the marriage solemnized under the ‘Act’ be avoided 8.
The respondent/husband appears to have prayed for the decree of nullity of marriage under S. 25(iii) of the ‘Act. ’ It has, therefore, to be considered as to whether consent of the respondent was obtained by fraud as defined in the Indian Contract Act, 1872? 9. Section 17 of the Indian Contract Act defines ‘fraud’ as below: 17. ‘Fraud’ – ‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract – (1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true, 2) The active concealment of a fact by one having knowledge or belief of the fact, (3) A promise made without any intention of performing it, (4) Any other act fitted to deceive; (5) Any such act or omission as the law specially declares to be fraudulent. Explanation – Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech. ” 10. Therefore, the question that arises for consideration is: as to whether the appellant/wife suppressed the material fact, i. e. her earlier marriage with Motilal Vishwakarma and whether the suppression as above would amount to fraud? 11. It may be noticed that the respondent/husband Mohd. Afaq Qureshi (AW/1) stated that he married the appellant/wife on 23. 1. 1990 under the ‘Act. ’ They resided together for about 7 or 8 months. A dispute thereafter arose between them as the appellant/wife had suppressed that she was already married with Motilal Vishwakarma. He states that thereafter a document captioned as ‘Iqrarnama’ (Ex. P/1) was executed by the appellant/wife. The said document bears signature of the appellant/wife as well as of Jugal Kishore – the brother of the appellant/wife as well as one Mohd. Salim. During cross-examination, the