# BHAURAO SHANKAR LOKHANDE & ANR v. STATE OF MAHARASHTRA & ANR

- **Citation:** [1965] 2 S.C.R. 837
- **Court:** Supreme Court of India
- **Decided:** 1965-02-01
- **Case number:** Criminal Appeal No. A 178 of 1963
- **Bench:** Raghubar Dayal, J. R. Mudholkar, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhaurao-shankar-lokhande-anr-v-state-of-maharashtra-anr-3350
- **Pages:** 8

## Headnote

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 ceremonies 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 applicable 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 acoording 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 marriage 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 marriage, 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 prosecution had therefore failed to establish that the second marriage was performed 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]

## Text

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 ceremonies 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 applicable 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 acoording 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 marriage 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 marriage, 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 prosecution had therefore failed to establish that the second marriage was performed 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 respondent 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 s. 494
I.P.C. and appellant No. 2 for an offence under s. 494 read with
s. 114 1.P.C. Their appeal to the Sessions Judge was dismissed.
Their revision to the High Court also failed. They have preferred
this appeal by special leave.
The only contention raised for the appellants is that in law it
F
was necessary for the prosecution to establish that the alleged
second marriage of the appellant No. 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
G
not performed during the proceedings which took place when appellant No. l and Kam!abai married each other. On behalf of the
State it is urged ti!at the proceedings of ihat 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 No. 1 with Kam!abai was a valid
H
marriage. It is also urged for the State that it is not necessary for
the commission of the offence under s. 494 I.P.C. that the second
B. S. LOKHANDE v. STATE (Dayal, /.)
839
A marriage be a valid one and that a person going through any
form of marriage during the life-time of the first wife would commit the offence under s. ~~4 lP.C. even if the later marriage be
void according to the law applicable to that person.
Section 494 I.P.C. reads :
B
"Whoever, having a husband or wife living, marries
c
in any case in which such marriage is void by reason of
its taking place during the life of such husband or wife,
shall be punished With imprisonment of either description for a term which may extend to seven years, and
shall also be liable to fine."
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
D 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.
E
Apart from these consid_erations, 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 life-time of his previous wife, void. Section 5 of
the Hindu Marriage Act provides that a marriage may be solemF niud 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 solemniud 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
G
ss. 494 and 495 I.P.C. shall apply accordingly.
The marriage
between two Hindus is void in view of s. 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 pl~ce between the appellant and Kamlabai in February 1962 cannot be said to be 'solemH
nized', that marriage will not be void by virtue of s. 17 of the
Act and s. 494 I.P .C. will not apply to such parties to the marriage as had a spouse living.
L4Sup./6S-7
840
SUPllEMB COUltT IU!POR.TS
(1965] 2 S.C.R.
The word 'solemnize' means, in connection with a marriage,
A
'to celebrate the marriage with proper ceremonies and in due form',
according to the Shorter O)dord Dictionary. It follows, therefore,
that unless the marriage is 'celebrated or performed with prop«
ceremonies and due form' it cannot be said to be 'solemnized'. It
is therefore essential, for the purpose of s. 17 of the Act, that the
marriage to which s. 494 l.P.C. applies on account of the proviB
sions 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.
We are of opinion that unless the marriage which took place
between appellant no. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable.
c
to a marriage between the parties, the marriage cannot be said to
have been 'solemnized' and therefore appellant no. 1 cannot be
D
held to have committed the offence under s. 494 l.P.C.
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 no. 1 and Kamlabai
was in 'gandharva' form, as modified by the custom prevailing E
among the Maharashtrians.
It is noted in Mul/ds Hindu Law,
12th Edition, 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 descriF
bed 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
G
custom in any particular community or caste."
At p. 615 is stated:
"(l) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the
H
Brahma form or the Asura form, namely-
( l) invocation before the sacred fire, and
\
A
B
B. s. LOr;HANI)B V. STATB (Dayal. 1.)
841
(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 subsection (1), where it is allowed by the custom of the
caste to which the parties belong."
It is not disputed that these two essential ceremonies were not
c performed when appellant no. 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
D
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 ~at the custom of the community deemed
what took place at the 'marriage' of the appellant no. 1 and
E 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.
F
G
H
What took place that night when appellant no. 1 married
Kamlabai, has been stated thus, by P.W. 1 :
"The marriage took place at 10 p.m. Pat-wooden
sheets-were brought. A carpet was spread. Accused
no. 1 then sat on the wooden sheet. On the other sheet
accused no. 3 sat. She was sitting nearby accused no.
1. Accused no. 4 then performed some Puja by bringing
a Tambya-pitcher. Betel leaves and cocoanut was kept
on the Tambya. Two_garlaJids were brought. Accused
no. 2 was having one and accused no. 4 having one in
his hand. Accused no. 4 gave the garland to accused
no. 3 and accused no. 2 gave the garland to accused no.
1. Accused nos. 1 and 3 then garlanded each other. Then
they each struck each other's forehead."
+, -
842
SUPREMB COUllT RBPOR.TS
[1965] 2 S.C.R.
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
marril\ge.
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."
A
B
Sitaram, witness no. 2 for the complainant, made a similar starement about what happened at the marriage ceremony and further
stated, in the examination-in-chief :
C
"Surpan is the village of accused no. 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."
D
He stated in cross-examination :
"A barber is not required and accused no. 5 was not
present at the time pf marriage.
There is a custom
that the father of girl should make to touch the foreheads
of the girl and boy tq each other and the Gandharva is
E
completed by the act."
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,
F
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
G
through were all the ceremonies required for the validity of the
marriage.
Bhagwan, witness no. 3 for the complainant, made no statement about the custom, but stated in cross-examination that it was
not neeessary for the valid performance of gandharva marriage in
their community that a Brahmin priest was required and mangala
H
ashtakas were to be chanted. The statement of Jeebhau, witness
no. 4 for the complainant, does not show how the custom has
B. S. LOKHANDB V. STATB (Dayal, /.)
843
A modified the essential forms of marriage.
He stated in crossexamination :
B
"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."
C 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 uot
establish that their performance is no more necessary according
D 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.
E
F
G
Clause (a) of s. 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.
We are therefore of opinion that the prosecution has failed to
establish that the marriage between appellant no. 1 and Kamlabai
in February 1962 was performed in accordance with the customary rites as required by s. 7 of the Act. It was certainly not
performed in accordance with the essential requirements for a
valid marriage under Hindu law.
It follows therefore that the marriage between appellant no. 1
and Kamlabai does not come within the expression 'solemnized
marriage' occurring in s. 17 of the Act and consequently does not
come within the mischief of s. 494 l.P.C. even though the first
wife of appellant no. 1 was living when he married Kamlabai in
H February 1962.
We have not referred to .and discussed the cases referred to in
support of the contention that the 'subsequent marriage' referred
844
SVP:UMJI COUllT Rl!POil.TS
(196S] 2 S.C.11..
to in s. 494 I.P.C. need not be a valid marriage, as it is unnecessary
A.
to consider whether they have been correctly decided, in view of
the fact that the marriage of appellant no. 1 with Kamlabai could
be a void marriage only if it came within the purview of s. 17 of
the Act.
The result is that the conviction of appellant no. 1 under B
s. 494 I.P.C. and of appellant no. 2 under s. 494 read with s. 114
l.P.C. cannot be sustained. We therefore allow their appeal, set
aside their convictions and acquit them.
The bail bonds of
appellant no. 1 will stand discharged. Fines, if paid, will be
refunded.
c
Appeal allowed.