Bigamy in schedule tribes
rajasekhar
(Querist) 03 November 2012
This query is : Resolved
sir,
i am a schedule tribe and married a girl of the same community (yerukala caste in andhra pradesh)as per hindu religion.i got separated from her after 2 months of marriage due to incompatibility.i tried for out off court settlement but did not work out.i applied for divorce after one and half years of separation.she filed 498a against 12 members off my family.we all got bail and appealed for quash on 11 others except me in high court of AP.after 3 years the high court quashed case against 11 members,now i am attending the trail.my plea for divorce is dismissed after 3 years of filing the case.the judge says that the marriage bond still exists and if some elders mediate there are chance for us to unite.but now it is 6 years.the judgement came 6 months back and till now i did not go to appeal in high court.the girl says if i stay with with her she will with draw 498a case against me.at this point i want to marry a girl from my same community.i came to know that schedule tribes are not punishable in bigamy cases.please advice me.
Devajyoti Barman
(Expert) 03 November 2012
Sorry without divorce you can not go for second marriage. Bigamy is applicable for ST as well. What is permissible for you is customary divorce.
Since you did not do this, now you can no more opt for it.
ajay sethi
(Expert) 03 November 2012
the hindu marriage ACt does not apply to scheduled tribes . Section 2(2) provides that nothing contained in this Act shall apply to the members of any Scheduled Tribes (even if they are Hindus) unless the Central Government by notification in the official gazette otherwise directs. Most of the scheduled tribes are still governed by customs.
is there any custom in your tribe wherein monogamy is a rule? you would be liable for punishment under section 494 of IPC . if there is no such custom your second marriage would not ve void and you cnanot be punished for bigamy
ajay sethi
(Expert) 03 November 2012
Surajmani Stella Kujur v. Durga Charan Hansdah
AIR 2001 SC 938 : (2001) 3 SCC 13
R.P. SETHI, J. - 2. Who is a “Hindu” for the purposes of the applicability of the Hindu
Marriage Act, 1955 (“the Act”) is a question of law to be determined in this appeal.
3. Section 2 of the Act specifies the persons to whom the Act is applicable. Clauses (a),
(b) and (c) of sub-section (1) of Section 2 make the Act applicable to a person who is a Hindu
by religion in any of its forms or developments including a Virashaiva, a Lingayat or a
follower of the Brahmo, Prarthana or Arya Samaj and to a person who is a Buddhist, Jain or
Sikh by religion. It is also applicable to any other person domiciled in the territories of India
who is not a Muslim, Christian, Parsi or Jew by religion. The applicability of the Act is,
therefore, comprehensive and applicable to all persons domiciled in the territory of India who
are not Muslims, Christians, Parsis or Jews by religion.
4. The term “Hindu” has not been defined either under the Act or the Indian Succession
Act or any other enactment of the legislature. As far back as in 1903 the Privy Council in
Bhagwan Koer v. J.C. Bose [ILR (1902) 31 Cal 11, 15] observed:
We shall not attempt here to lay down a general definition of what is meant by the
term ‘Hindu’. To make it accurate and at the same time sufficiently comprehensive as
well as distinctive is extremely difficult. The Hindu religion is marvellously catholic
and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited
freedom of private worship. Its social code is much more stringent, but amongst its
different castes and sections exhibits wide diversity of practice. No trait is more
marked of Hindu society in general than its horror of using the meat of the cow. Yet
the Chamars who profess Hinduism, but who eat beef and the flesh of dead animals,
are however low in the scale included within its pale. It is easier to say who are not
Hindus, and practically the separation of Hindus from non-Hindus is not a matter of
so much difficulty. The people know the differences well and can easily tell who are
Hindus and who are not.
5. The Act, is, therefore, applicable to: (1) All Hindus including a Virashaiva, a Lingayat,
a Brahmo, Prarthana Samajist and an Arya Samajist, (2) Buddhists; (3) Jains; (4) Sikhs.
6. In this appeal the parties are admittedly tribals, the appellant being an Oraon and the
respondent a Santhal. In the absence of a notification or order under Article 342 of the
Constitution they are deemed to be Hindus. Even if a notification is issued under the
Constitution, the Act can be applied to Scheduled Tribes as well by a further notification in
terms of sub-section (2) of Section 2 of the Act. It is not disputed before us that in 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, both
the tribes to which the parties belong are specified in Part XII. It is conceded even by the
appellant that “the parties to the petition are two tribals, who otherwise profess Hinduism, but
their marriage being out of the purview of the Hindu Marriage Act, 1955 in light of Section
2(2) of the Act, are thus governed only by their Santhal customs and usage”.
Surajmani Stella Kujur v. 2 Durga Charan Hansdah
7. The appellant has, however, relied upon an alleged custom in the tribe which mandates
monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage
during the subsistence of the first marriage with the appellant, the second marriage being
void, the respondent is liable to be prosecuted for the offence punishable under Section 494
of the Indian Penal Code.
8. No custom can create an offence as it essentially deals with the civil rights of the
parties and no person can be convicted of any offence except for violation of law in force at
the time of commission of the act charged. Custom may be proved for the determination of
the civil rights of the parties including their status, the establishment of which may be used
for the purposes of proving the ingredients of an offence which, under Section 3(37) of the
General Clauses Act, would mean an act or omission punishable by any law by way of fine or
imprisonment. Article 20 of the Constitution, guaranteeing protection in respect of conviction
of offence, provides that no person shall be convicted of any offence except for violation of
law in force at the time of commission of the act charged as an offence. Law under Article 13
clause (3) of the Constitution means the law made by the legislature including intra vires
statutory orders and orders made in exercise of powers conferred by the statutory rules.
9. The expression “custom and usage” has been defined under Section 3(a) of the Act as:
3. (a) the expression ‘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:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been
discontinued by the family;
10. For custom to have the colour of a rule or law, it is necessary for the party claiming it,
to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom
being in derogation of the general rule is required to be construed strictly. The party relying
upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi
Ammal v. Sivanantha Perumal Sethurayar [(1871-72) 14 Moo IA 570, 585-86] it was held:
It is of the essence of special usages, modifying the ordinary law of succession that
they should be ancient and invariable; and it is further essential that they should be
established to be so by clear and unambiguous evidence. It is only by means of such
evidence that the courts can be assured of their existence, and that they possess the
conditions of antiquity and certainty on which alone their legal title to recognition
depends.
12. The importance of the custom in relation to the applicability of the Act has been
acknowledged by the legislature by incorporating Section 29 saving the validity of a marriage
solemnised prior to the commencement of the Act which may otherwise be invalid after
passing of the Act. Nothing in the Act can affect any right, recognised by custom or conferred
by any said enactment to obtain the dissolution of a Hindu marriage whether solemnised
before or after the commencement of the Act even without the proof of the conditions
precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act.
Surajmani Stella Kujur v. Durga Charan Hansdah 3
13. In this case the appellant filed a complaint in the Court of Chief Metropolitan
Magistrate, New Delhi stating therein that her marriage was solemnised with the respondent
in Delhi “according to Hindu rites and customs”. Alleging that the respondent has solemnised
another marriage with Accused 2, the complainant pleaded:
That Accused 1 has not obtained any divorce through the court of law up to this
date and hence the action of Accused 1 is illegal and contravenes the provision of law
as laid down under Section 494 IPC.
14. Nowhere in the complaint the appellant has referred to any alleged custom having
the force of law which prohibits the solemnisation of second marriage by the respondent
and the consequences thereof. It may be emphasised that mere pleading of 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 during the life of such husband or
wife. In order to prove the second marriage 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 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 are normally and usually defined by a statute. The appellant herself appears to be not
clear in her stand inasmuch as in her statement in the court recorded on 24-10-1992 she has
stated that “I am a Hindu by religion”. The complaint was dismissed by the trial court
holding, “there is no mention of any such custom in the complaint nor is there evidence of
such custom. In the absence of pleadings and evidence reference to book alone is not
sufficient”. The High Court vide the judgment impugned in this appeal held that in the
absence of notification in terms of sub-section (2) of Section 2 of the Act no case for
prosecution for the offence of bigamy was made out against the respondent because the
alleged second marriage cannot be termed to be void either under the Act or any alleged
custom having the force of law.
15. In view of the fact that parties admittedly belong to the Scheduled 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 the 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 the Indian
Penal Code can possibly be made out against the respondent. The trial Magistrate and the
High Court have rightly dismissed the complaint of the appellant.
17. There is no merit in this appeal which is accordingly dismissed.
* * * * *
R.K Nanda
(Expert) 03 November 2012
no more to add.
