Hindu Marriage Act, 1955 - Case law- Section 2(2)-
Dr.Surajmani Stella Kujur vs Durga Charan Hansdah & Anr.
(Appeal was dismissed on ground of inexistence of valid custom which proved second marriage void)
Bench: Justice K.T.Thomas, Justice R.P.Sethi.
Facts:
- Durga Charan Hansdah, herein the Respondent and Dr. Surajmani Stella Kujur, herein the Appellant were husband and wife, belonging to different tribal communities, former being an Oraon and the latter a Santhal.
- The marriage was solemnised between the parties according to Hindu rites and customs.
- The Appellant sought prosecution of her husband, the Respondent for commission of offence of bigamy under Section 494 of Indian Penal Code, 1860, since he solemnised another marriage during the subsistence of the first one.
Issues:
- Who is a ‘hindu’ for the application of the Hindu Marriage Act, 1955 (hereinafter referred to as the “Act”?)
- Whether the second marriage solemnised by the Respondent void by virtue of customs and usages of the tribe?
Contentions of the Appellant:
- Parties otherwise profess Hinduism but by virtue of section 2(2) of the Act, it is not applicable to them. Hence, they are governed only by Santhal customs and usages.
- Monogamy has been mandated and has obtained status of a custom in her tribe.
- Second marriage of her husband was void by reason of it taking place during her lifetime and he is liable to be prosecuted under Section 494 IPC.
Background:
The complaint was initially filed by the Appellant in the Trial Court which rejected it on the ground that a custom which proved nullity of a second marriage is not pleaded or proved. Aggrieved, the Appellant approached the High Court which upheld the decision of theTrial Court. Ultimately, the matter reached the Supreme Court which pronounced its judgment given below.
Judgment:
The Court reiterated Section 2 of the Act to embark upon its applicability. 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.
The Supreme Court rejected the appeal, holding that customs dealwith the civil rights of person and breach of a custom cannot constitute an offence, except for the violation of law in force at the time of commission of the offence. It is essential for the party to plead and also prove by way of clear and unambiguous evidence that a particular custom is ancient, reasonable and certain for it to have the force of law.
In the present case, the Court concluded that the Appellant failed to prove existence of a valid custom which makes the second marriage null and void and since second marriage being void is a sine qua non for the applicability of Section 494 IPC, no offence could be made out against the Respondent.
