BHAURAO SHANKAR LOKHANDE & ANR. versus STATE OF MAHARASHTRA & ANR.

Citation: [1965] 2 S.C.R. 837 · Decided: 01-02-1965 · Supreme Court of India · Bench: RAGHUBAR DAYAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
BHAURAO SHANKAR LOKHANDE & ANR. 
v. 
STATE OF MAHARASHTRA & ANR. 
February 1, 1965 
B 
[RAGHUBAR DAYAL, J. R. MUDHOLKAR, AND V. RAMASWAMI, JJ.) 
c 
D 
Indian Penal Code, 1860 (45 of 1860), s. 494-Whether 
second 
marriage required to be 'valid' for offence to be committed-Therefore 
whether essential ceremonies must be perfurmed-Hindu Marriage Act, 
1955, s. 17-Marriage 'solemnised'-Meaning of-Hindu. 
Hindu Law-'Gandharva' marriage-Whether usual essential cere-
monies necessary-Modification by custom considered. 
Appellant No. 1 was convicted of an offenee under s. 494 I.P.C. (and 
a~llant No. 2 of abetting him) for going through a marriage which was 
void by reason of its taking place during the life-time of a previous wife. 
It was contended on behalf of the appellants that in law it was 
necessary for the prosecution to establish that the alleged marriage had 
been duly performed in accordance with the essential religious rites ap-
plicable to the form of marriage gone through, On the other hand it was 
urged by the State that for the commission of an offence under s. 494, 
it was not necessary that the second marriage should be a valid one and 
a person going through any form of marriage during the life-time of 
the first wife would commit the .,ffettce; and that in any event, in the 
present case the rites necessary for a 'Gandharva' form of marriage, 
as modified by custom prevailing among Maharashtrians, had been duly 
J: 
observed. 
HELD : 
(i) Prima fade, 
the expression 'whoever-marries' in 
s. 494 must mean 
'whoever-marries validly' or 'whoever-marries and 
whose marriage is a valid one'. If a marriage is not a valid one acoord-
ing to the law applicable to the parties, no question arises of its being 
void by reason of its taking place during the life of the husband or wife 
of the person marrying. [839 C-D] 
(ii) For a marriage between two Hindus to be void by virtue of 
i' 1. 17 of the Hindu Marriage Act, 1955, two conditions are required to be 
satisfied, I.e. (a) the marriage is solemnised after the Act; and (b) at the 
date of such marriage, either party has a spouse living. Unless the mar-
riage is celebrated or performed with proper ceremonies and due form, 
it cannot be said to be 'solemnised' within the meaning of s. 17. 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. [839 G-H; 840 A-C] 
G 
(iii) The two ceremonies essential to the validity of a Hindu mar-
riage, I.e. invocation before the sacred fire and sapatapadi. are also a 
requi•ite part of a 'Gandharva' marriage unless it is shown that some 
modification of these ceremonies has been introduced by custom in any 
particular rommunity or caste. 
It was not disputed that in the present 
case these two ceremonies were not performed when the appellant No. I 
H 
married a second time and the evidence on record did not establish that 
these essential ceremonies had been abrogated by custom. The prosecu-
tion had therefore failed to establish that the second marriage was per-
formed in accordance with the customary rites applicable. 
[840 H: 841 
A-C; 843 E-GJ 
838 
SUPREME COURT REPORTS 
(1965] 2 S.C.R. 
Mu/Ids Hindu Law, 12th &In. pp. 605 and 615, relied upon. 
(iv) The facts that the two essential ceremonies may not have been 
performed for a period of five or seven year.s oou!d not be said to have 
established a custom as contemplated by s. 3(a) of the Hindu Marriage 
Act, 1955. [843 C-E] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
A 
178 of 1963. 
B 
A ppe'al by special leave from the judgment and order dated 
AugtlsLl9, 1963, of the Bombay High Court in Criminal Revision 
Application No. 388 of 1963. 
_,/" / 
, 
<S. G. Patwardhan and M. S. Gupta, for the appellants. 
W. S. Barlingay, B. R. G. K. Achar for R. H. Dhebar, for res-
pondent No. 1. 
The Judgment of the Court was delivered by 
c 
Raghubar Dayal, J. Bhaurao Shankar Lokhande, appellant 
D 
No. 1, was married to the complainant Indubai in about 1956. He 
married Kamlabai in February 1962, during the lifetime of Indubai. 
Deorao Shankar Lokhande, appellant No. 2, is the brother of the 
first appellant. 
These two appellants, together with Kam!abai 
and her father and accused No. 5, a barber, were tried for an 
offence under s. 4 94 I.P. C. 
The latter three were acquitted by 
E 
the Magistrate. 
Appellant No. 1 was convicted under
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