Bench:
Justice Raghubar Dayal, Justice J.R. Mudholkar, Justice V.
Ramaswami
Issue:
What is the meaning of solemnization of marriage for application of
Section 17 of HMA,1955?
Facts:
- The appellant married the
complainant Indubai in 1956 and thereafter married Kamlabai in 1962 during
the lifetime of his first wife.
- The Magistrate convicted him
under Section 494 IPC. Appeal to Sessions Judge & HC was dismissed.
- Thereafter, appeal by special
leave was filed in SC.
Appellant's contentions:
·
It was contended that essential
ceremonies for marriage were not performed when he married Kamlabai. For
prosecution, a marriage has to be performed in accordance to the rites which has
not happened in the present case.
Respondent's contentions:
·
It was contended that the second
marriage took place in accordance to the custom prevalent in society of
appellant for Gandharva form of marriage and therefore is valid. Also, under Sec
494 IPC, mere commission of offence is necessary during lifetime of other spouse
even if the second marriage is valid or not.
Judgement:
The Supreme Court allowed the appeal. The essential
ceremonies required for the valid marriage under the custom were not performed
for the second marriage. Therefore, the marriage cannot be treated as solemnized
marriage for prosecution as per Section 17 of Hindu Marriage Act, 1955 & IPC.
"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. 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."
-
Para 4 (Bhaurao Shankar Lokhande &
Anr. v. State Of Maharashtra & Anr.)
