Bench:
Justice K.T. Thomas and Justice R.P. Sethi
Issue:
Who is Hindu for the application of Hindu Marriage Act,1955?
FFacts:
- The appellant filed a complaint against her husband whom she had married according to Hindu customs & rites.
- She alleged that her husband has married another woman w/o any divorce, so he should be punished for bigamy & they are governed by their tribal customs.
- The trial court dismissed the complaint stating that no mention of custom & its evidence was provided in the pleadings.
- The HC held that second marriage is not void as due to absence of notification u/s 2(2) of HMA, no offence of bigamy can be made out.
Appellant's contentions:
It was contended that the custom of their tribe mandates monogamy therefore the second marriage of the respondent is void & he is liable to be punished for bigamy under Section 494 of IPC.
Respondent's contentions:
It was contended that the parties are tribals and HMA,1955 is not applicable u/s 2(2) & therefore, they are governed by Santhal customs. It was also agreed by appellant. The second marriage is not void according to the customs.
Judgement:
The Supreme Court dismissed the appeal & upheld the decision of HC.
TThe parties belong to Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution. For the offence of bigamy under Section 494 of IPC, the second marriage has to be void. The alleged custom prohibiting the second marriage cannot be proved merely by stressing over monogamy in the custom. Therefore, in the present case, the second marriage cannot be said to be void according to the said custom.
