# • " ' GOPALLAL v. STATE OF RAJASTHAN

- **Citation:** [1979] 2 S.C.R. 1171
- **Court:** Supreme Court of India
- **Decided:** 1979-01-30
- **Case number:** Criminal Appeal No. 255 of 1973
- **Bench:** S. MuRTAZA FAZAL Au, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gopallal-v-state-of-rajasthan-7481
- **Pages:** 6

## Headnote

1171
Bigamy, offence of under section 494 f.P.C.-Ad1nission and legal evidence
of actual 1narriage by custom of nata marriage attracts the provisions of sectio11 494 l.P.C.
A
B
~
Nata 1narriage by customs and therefore void under section 17 of the lfindu
-,.,Jarriage Act, 1955-Whether voidness of a marriage under section 17 of the
C
H.M.A., 1955 disattracts the applicability of· the provisions of section 494
.-'f
l.P.C.
After having fallen out and parted comp:lny "With his wife Kanchan in the
year 1963, the appellant, belonging to Telli communiLy contracted a second
marriage prevalent amongst his community with Gopi on 20th March 1969. A
complaint filed by his first wife ended in his
conviction under se.ction 494
D
I.P.C. and sentence of two years RJ. and a fine of Rs. 2,000/-, the conviction
and sentence having been upheld by the Raiasth&n lligh Court.
Dismissing the appeal by special leave, the Court,
HELD : 1. The second marriage was a valid marriage
according to the
custom of the nata marriage prevalent in the Telli community which requires
the following two essential ceremonies:-
). - -
(a) that the husband should take a pitcher full of weter from the head
;:of the prospective wife, and
(b) that the wife should wear chura by the husband.
E
'*"
The prosecution through PWs. 2, 3, 4 and 5 having proved that these cereF
monies have been duly performed, that there was such a custom which requires the said ceremonies having been admitted by the defence witnesses 3
and 5 and the validity of the first marriage not having been disputed, ·Section
494 I.P.C. applies in terms and the appellant must be held to have con1nutted
the c,f!ence of Bigamy as contemplated by section 494 I.P.C.
[1'176A-EJ
f
2. The combined effect of section 17 of the Hindu Marriage Act and section
G
494 I.P.C. is that when a person contracts a second ntarriage afler the coming
•
into force of the said Act 1vhile the first niarriage is subsistinf?, such a person
coQunits the offence of bigamy.
[1174 El
Section 17 of the Hindu Marriage Act, 1955 makes it absolutely clear that
the provi5icn has to be read in harmony and conjunction with the provisions of
section 494 I.P.C., the essential ingredients of which are : (i) tlmt the accused
spouse must have contracted the first maniage (ii) that while the first marriage
H
was subsisting the spouse conc-erned must have contracted a second marriage,
and (iii) that both the marriages must be v..alid in the sense that the necessary
1172
SUPREME COURT REPORTS
[1979] 2 S.C.R.
A
ceremonies required by the personal law governing the parties had been duly
performed and (iv) the second marriage must have become void by VlflUe of
the fact that it had taken place in the !ifo timo of one of the ;pauses. [ll 73F-B.,
Jl74A·Cl
B
c
D
E
F
G
H
3. Where a spouse contracts n second marriage ·while the first marriage is
still subsisting the spouse would be guilty of bigamy under section 494, l.P.C.
if it is proved that the second marriage v.1as a valid one in the sense that the
necessary ceremonies required by law or by custom have been actually per·-
formed.
The voidness of the marriage under section 17 of the Hindu Marriage
Act is in fact one of the cssentia·1 ingredients of section 494 because the second
1narriage wilJ became void only because of tho provisions of section 17 of the
Hindu Marriage Act. Therefore, the contention that the second marriage being
void section 494 I.P.C. will have no applicatio11 is not correct.
[1175F-G]
Bhaurao Shankar Lokhande and Anr. v. State of Maltarashtra
and
Ors.;
[1965]2 S.C.R. 837; Kanwal Rani and Ors. v. The Hbnachal Pradesh
Adn1inistratio11, [1966],1 S.C.R.
539 and Priya
Bala
Ghosh v.
Suresh
Chandra
Ghosh; [1973] 3 S.C.R. 961 applied.
[Bigamy being a serious offence for which the
maximum
punishn1ent 1.3
seven years, the Court while maintaining the conviction reduced the sentcn;;e
to one year.]

## Text

•
"
..
'
GOPALLAL
v.
STATE OF RAJASTHAN
January 30, 1979
[S. MuRTAZA FAZAL Au AND A. D. KosHAL, JJ.]
1171
Bigamy, offence of under section 494 f.P.C.-Ad1nission and legal evidence
of actual 1narriage by custom of nata marriage attracts the provisions of sectio11 494 l.P.C.
A
B
~
Nata 1narriage by customs and therefore void under section 17 of the lfindu
-,.,Jarriage Act, 1955-Whether voidness of a marriage under section 17 of the
C
H.M.A., 1955 disattracts the applicability of· the provisions of section 494
.-'f
l.P.C.
After having fallen out and parted comp:lny "With his wife Kanchan in the
year 1963, the appellant, belonging to Telli communiLy contracted a second
marriage prevalent amongst his community with Gopi on 20th March 1969. A
complaint filed by his first wife ended in his
conviction under se.ction 494
D
I.P.C. and sentence of two years RJ. and a fine of Rs. 2,000/-, the conviction
and sentence having been upheld by the Raiasth&n lligh Court.
Dismissing the appeal by special leave, the Court,
HELD : 1. The second marriage was a valid marriage
according to the
custom of the nata marriage prevalent in the Telli community which requires
the following two essential ceremonies:-
). - -
(a) that the husband should take a pitcher full of weter from the head
;:of the prospective wife, and
(b) that the wife should wear chura by the husband.
E
'*"
The prosecution through PWs. 2, 3, 4 and 5 having proved that these cereF
monies have been duly performed, that there was such a custom which requires the said ceremonies having been admitted by the defence witnesses 3
and 5 and the validity of the first marriage not having been disputed, ·Section
494 I.P.C. applies in terms and the appellant must be held to have con1nutted
the c,f!ence of Bigamy as contemplated by section 494 I.P.C.
[1'176A-EJ
f
2. The combined effect of section 17 of the Hindu Marriage Act and section
G
494 I.P.C. is that when a person contracts a second ntarriage afler the coming
•
into force of the said Act 1vhile the first niarriage is subsistinf?, such a person
coQunits the offence of bigamy.
[1174 El
Section 17 of the Hindu Marriage Act, 1955 makes it absolutely clear that
the provi5icn has to be read in harmony and conjunction with the provisions of
section 494 I.P.C., the essential ingredients of which are : (i) tlmt the accused
spouse must have contracted the first maniage (ii) that while the first marriage
H
was subsisting the spouse conc-erned must have contracted a second marriage,
and (iii) that both the marriages must be v..alid in the sense that the necessary
1172
SUPREME COURT REPORTS
[1979] 2 S.C.R.
A
ceremonies required by the personal law governing the parties had been duly
performed and (iv) the second marriage must have become void by VlflUe of
the fact that it had taken place in the !ifo timo of one of the ;pauses. [ll 73F-B.,
Jl74A·Cl
B
c
D
E
F
G
H
3. Where a spouse contracts n second marriage ·while the first marriage is
still subsisting the spouse would be guilty of bigamy under section 494, l.P.C.
if it is proved that the second marriage v.1as a valid one in the sense that the
necessary ceremonies required by law or by custom have been actually per·-
formed.
The voidness of the marriage under section 17 of the Hindu Marriage
Act is in fact one of the cssentia·1 ingredients of section 494 because the second
1narriage wilJ became void only because of tho provisions of section 17 of the
Hindu Marriage Act. Therefore, the contention that the second marriage being
void section 494 I.P.C. will have no applicatio11 is not correct.
[1175F-G]
Bhaurao Shankar Lokhande and Anr. v. State of Maltarashtra
and
Ors.;
[1965]2 S.C.R. 837; Kanwal Rani and Ors. v. The Hbnachal Pradesh
Adn1inistratio11, [1966],1 S.C.R.
539 and Priya
Bala
Ghosh v.
Suresh
Chandra
Ghosh; [1973] 3 S.C.R. 961 applied.
[Bigamy being a serious offence for which the
maximum
punishn1ent 1.3
seven years, the Court while maintaining the conviction reduced the sentcn;;e
to one year.]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 255
of 1973.
·
Appeal by Special Leave from the Judgment and Order
dated
16-7-73 of the Rajasthan High Court in S.B. Cr!. Revn. No. 309/73.
A. N. Mui/a and B. P. Singh for the Appellant.
Sobhag Mal Jain and S. K. Jain for the Respondent.
The Judgment of the Court was delivered by
FAzAL Au, J.-This appeal by special leave is directed against a
judgment of the Rajasthan High Court by which the conviction
of
the appellant under Section 494 I.P.C. and sentence of two
years
rigorous impri.sonment and fine of Rs. 2,000/- have been
upheld.
The facts of this case have been detailed in the judgments of the
courts below and it is not necessary to repeat them.
Suffice it to say
that the accused Gopal Lal married the complainant Kanchan sometime in the year, 1963 and a child was born out of this wedlock.
Soon thereafter the parties appeared to have fallen out and
parted
company.
While the first marriage was subsisting Gopal Lal contracted a second marriage which according to
the
custom
prevalent
amongst Tellis is a valid marriage commonly known as nata marriage.
This marriage was contracted on 20th of March, 1969.
The complainant Kanchan, the first wife having come to know
about this
marriage filed a complaint on the 22nd March, 1969, on the basis of
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GOPAL v. RAJASTHAN (Fazal Ali, J.)
1173
which appellant was prosecuted and ultimately convicted as mentioned above.
Mr. A. N. Mulla, learned counsel for the appellant, had submitted
two points before us.
In the first place it was contended that in
view of the provisions of. Section 17 of the Hindu Marriage Act, the
second marriage being a void marriage, the provisions of Section 494
I.P.C. are not attracted at all.
We have given our anxious
consideration to this argument but we are of the opinion that the argument
is wholly untenable.
Section 494 runs thus :
"Whoever, having a husband or wife living, marries in any
case in
which
such marriage is void by reason of its
taking place during the lifo 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.
Exception-This section does not extend to any person
whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any
person who contracts a marriage during the life of a former
· husband or wife, if such husband or wife, at the time of
the subsequent marriage, shall have been continually absent
from such person for the space of seven years, and shall not
have been heard of by such person as being alive within that
time provided the person
contracting
such
subsequent
marriage shalt before s.uch marriage takes place, inform the
person with whom such marriage is contracted of the real
state of facts so far as the same
are within his or her
knowledge".
The essential ingredients of this offence are :
( 1) that the accused spouse must have
first marriage.
contracted the
(2) that while the first marriage was
subsisting
the •
spouse ·concerned must have contracted a
second
marriage and
( 3) that both the marriages must be valid in the sense
that the necessary ceremonies required by the personal law governing the parties bad been duly perforaned.
It may also be noticed that Section 494 I.P.C. would come into
play only if the second marriage be~omes void by virtue of the fact
A
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1174
SUPREME COURT REPORTS
[ 1979] 2 S.C.R.
that it had taken place in the life time of one of the spouses.
Thus,
it is not possible to accede to the contention of Mr. Mulla that merely
because the second marriage was void under Section 17 of the Hindu
Marriage Act hence Section 494 I.P.C. would not be attracted. Section 1 7 of the Hindu Marriage Act runs thus
"Any marriage between
two
Hindus
solemnized after
the commencement of this 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".
What Section 17 contemplates is that the second marriage must
be according to" the ceremonies required by law.
If the marriage is
void its voidness would only lead to civil consequences arising from
such marriage.
Section 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions
of Section 494 of the Penal Code which has been extracted above.
Section 17 clearly provides that provisions of Sections 494 and 495
of the Penal Code shall apply accordingly.
In other words though
the marriage may be void under Section 17, by reason of the fact
that it was contracted while the first marriage was subsisting the
case squarely falls within the four corners of Section 494 and by contracting the second marriage the accused incurs the penalty imposed
by the said statute.
Thus the combined effect of
Section 17
of
Hindu Marriage Act and Section 494 I.P.C. is that when a person contracts a second marriage after the coming into force of the said Act,
while the first marriage is subsisting he commits the offence of bigamy.
(Emphasis ours).
This matter no longer res integra as. it co'ncluded by a decision of this Court in Bhaurao Shankar Lokhande and
Anr. v. State of Maharashtra & Anr.('). This Court while considering the question of bigamy qua
th~ provisions of Section
1 7
observed as follows :
• "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 ss. 494 and 495 I.P.C. shall apply accordingly.
The marriage between two
Hindus is void
H
in view of s. 17 if two conditions are satisfied :
(i) the
marriage is solemnized after the commencement of the Act;
(1) [19651 2 S.C.R. 837.
(
•
f
(
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GOPAL v. RAJASTHAN (Fazal Ali,!.)
1175
(ii) at the date of such marriage, either party had a spouse
living. If the marriage which took place between the apellant and Kamlabai in February 1962 cannot be said to be
'solemnized', that marriage will not be void by virtue of
s. 17 of the Act and s. 494 l.P.C. will not apply to such
parties to the marriage as had a spouse Jiving".
The word 'solemnize' means, in
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 in due
form' it cannot be said to be 'solemnized'. It is therefore
essential, for the purpose of s. 17 of the Act
that the
marriage to which s. 494 I.P.C. applies on account of the
provisions of the Act should have been celebrated with proper ceremonies and in due form".
It was thus pointed out by this Court that Section 17
of
the
Hindu Marriage Act requires that the marriage must
be
properly
solemnized in the sense that the necessary ceremonies required by Jaw
or by custom must be duly performed.
Once these ceremonies are
proved to have been performed the marriage become properly solemnized and if contracted while the first marriage is still subsisting the
provisions of Section 494 will apply automatically.
In a decision of
this Court in Kanwal Ram & Ors. v. The Himachal Pradesh
Administration(') the earlier case was noticed by the Court and relied
.-> · upon.
The matter has ;i.!so been fully discussed in Priya Bala Ghosh
v. Suresh Chandra Ghos'1f. (') In view
of the authorities of this
Court, therefore, the following position emerges : where
a spouse
contracts a second marriage while the first marriage is still subsisting
the spouse would be guilty of bigamy nnder Section 494 if it is proved
that the second marriage wa.s a valid one in the
sense
that
the
necessary ceremonies required J1y law or by custom l].av,e been actually performed.
The voidness oT the marriage under Section 17 of the
Hindu Marriage Act is in fact one of. !he essential ingredients of Section 494 because the second marriage will be<'.:ome void only because of
the provisions of Section 17 of the Hindu Marriage Act.
In these
circumstances, therefore, we are unable to accept the contention of
Mr. Mulla that the second marriage being void Section 494 win .have
no application.
It was next ~ontended by Mr .. Mulla that there is
no legal evidence to show th!!t the second marriage which is said to
(I) [1966] l S.C.R. 539.
(2) [1971]3 S.C.R. 961.
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1176
SUPREME COURT REPORTS
[1979] 2 S.C.R.
A
be a nata .marriage was actually performed. We are afraid, we are
unable to go into this question because three courts have concurrently found as a fact that the parties were governed by custom of nata
marriage and the two essential ceremonies of this marriage are :
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(1) that the husband should take a pitcher full of water
from the head of the prospective wife;
(2) that the wife should wear churn by the husband.
There is evidence of P.Ws. 2, 3, 4 and 5 who have proved fact
that these ceremonies had been duly performed in their preience.
l
That there was such a custom which requires these ceremonie~ was_/"
admitted by D.Ws. 3 and 5 who were examined by
the appellant.
The evidence Jed by the prosecution has been accepted by the High
~
Court and the courts below and after perusing the evidence we are
not in a position to hold that the finding of facts arrived
by the
courts below are wrong in law or perverse.
From the evidence led
by the prosecution, therefore, it has been clearly established that the
second marriage which was performed by the appellant Gopal Lal
with Gopi was a valid-marriage according to the custom of·the nata
marriage prevalent in the Telli commuhity to
which
the appellant
belonged.
This being so and the validity of the first .marriage not
having been disputed, Section 494 LP.C. applies in terms
and the
appellant must be held to have committed the offence of bigamy as
contemplated by Section 494 I.P.C.
Lastly, Mr. Mulla pressed this
appeal on the question of sentence.
Bigamy is a
serious
offence
and the maximum punishment under Section 494
is
seven years.
Therefore, where the offence of bigamy is 1roved the Court cannot
-"'·
take a very lenient view.
In the instant case the appellant was sentenced to two years and a fine of Rs. 2,000/-.
It appears that the
appellant has already paid a fine of Rs. 2,000/-.
In these circumstances, therefore, we feel that 'the ends of justice will
be met by
reducing the sentence of imprisonment from two years to one year but
maintaining the .sentence of fine.
Wi~ this modification the appeal
is dismissed.
The appellal)t will now surrender and serve out the
remaining portion of the sentence.
S.RAppeal dismissed.
•
•
,.