DR. SURAJMANI STELLA KUJUR versus DURGA CHARAN HANSDAH AND ANR.

Citation: [2001] 1 S.C.R. 1028 · Decided: 14-02-2001 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed
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Judgment (excerpt)

A 
DR. SURAJMANI STELLA KUJUR 
v. 
DURGA CHARAN HANSDAH AND ANR. 
FEBRUARY 14, 2001 
B 
[K.T. THOMAS AND R.P. SETHI, JJ.] 
Hindu Law: 
Hindu Marriage Act, 1955-Seclion 2(2)-Hindu for the purposes of 
C the Act--Who is-Schedule Tribes-Solemnisation of second marriage by 
hushand during suhsistence of first marriage-Complain/ of bigamy by wife-
Held, Hindu Marriage Act not applicable us no requisite notification was 
passed under the Act--Proof of existence of any Custom barring bigamy not 
established-Second marriage not void--Constilution (Schedule Tribes) Order 
D 
E 
1950 as amended by Scheduled Castes and Schedules Tribes (Amendment) 
Acts. 
Penal Code, 1860 : 
S.494-Bigamy-ln the absence of proof of any custom making second 
'!-
marriage void, no offence made out-Maintenance, succession and other 
benefits-Entitlement to--Held, separate civil proceedings to be initiated in 
a competent court for entitlement. 
Respondent and Appellant, who are husband and wife, belong to different 
tribal communities. Respondent solemnised second marriage during the 
F subsistence of his first marriage with the appellant. The appellant filed a 
complaint against the respondent before Chief Metropolitan Magistrate for 
offence of bigamy. The complaint was dismissed by the Magistrate as no 
evidence of custom barring bigamy was proved by the appellant. In appeal, the 
High Court held that the provisions of the Hindu Marriage Act are inapplicable 
to the parties in the absence of notification under sub-section (2) of Section 
G 2 of the Act. 
H 
In appeal to this Court, the appellant contended that her marriage was 
solemnised with the respondent according to Hindu rites and customs; that 
the custom in the Tribe mandates monogamy as a rule; that the second 
marriage was solemnised during the-subsistence of the first marriage and 
102s· 
DR. S.S. KU.IUR v. D.C. HANSDAH 
1029 
so the second marriage is void; that the respondent has not obtained divorce A 
through Court of Law; that if the second marriage is not void and the 
respondent is not guilty ofbigamy, then she is entitled to maintenance, 
succession and other benefits on :iccount of her being the legally wedded wife 
of the respondent. 
Dismissing the appeal, the Court 
HELD: I. In the complaint, the appellant has not referred to any alleged 
custom having the force of law which prohibits the solemnisation of second 
marriage by the respondent and the consequences thereof. Mere pleading of 
B 
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 C 
during the life of such husband or wife. In order to prove the second marriage 
V 
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 D 
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 is normally and usually defined by 
~ 
a statute. (1033-F-H) 
2. In view of the fact that parties admittedly belong to the Scheduled E 
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 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 F 
the Indian Penal Code can possible be made out against the respondent. 
(1034-C-DI 
3. With respect to the entitlement to maintenance, succession and other 
benefits, the appellant is at liberty to get her right established by way of civil 
proceedings in a competent court of jurisdiction. If any such proceedings are G 
""f 
initiated, the same would be decided on their merits in accordance with the 
principles of pleadings and proof, not being influenced by any of the 
observations made by the Trial Magistrate or the High Court. (1034-F-G( 
Mirza Raja Pushpavati Vijayaram Gajapathi Raj & Ors. v. Sri 
Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors., AIR
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