A DR. SURAJMANI STELLA KUJUR

v.

DURGA CHARAN HANSDAH AND ANR.

FEBRUARY 14, 2001

B [K.T. THOMAS AND R.P. SETHI, JJ.]

Hindu Law:

Hindu Marriage Act, 1955-Seclion 2(2)-Hindu for the purposes of

C the Act--Who is-Schedule Tribes-Solemnisation of second marriage by

hushand during suhsistence

of first marriage-Complain/ of bigamy by

wife­

Held, Hindu Marriage Act not applicable us no requisite notification was

passed under the Act--Proof of existence of any Custom barring bigamy not

established-Second marriage not void--Constilution (Schedule Tribes) Order

D

E

1950 as amended by Scheduled Castes and Schedules Tribes (Amendment)

Acts.

Penal Code, 1860 :

S.494-Bigamy-ln the absence of proof of any custom making second '!-

marriage void, no offence made out-Maintenance, succession and other

benefits-Entitlement to--Held, separate civil proceedings

to be initiated in

a competent court for entitlement.

Respondent and Appellant, who are husband and wife, belong to different

tribal communities. Respondent solemnised second marriage during the

F subsistence of his first marriage with the appellant. The appellant filed a

complaint against the respondent before

Chief Metropolitan Magistrate for

offence

of bigamy. The complaint was dismissed by the Magistrate as no

evidence

of custom barring bigamy was proved by the appellant. In appeal, the

High

Court held that the provisions of the Hindu Marriage Act are inapplicable

to the

parties in the absence of notification under sub-section (2) of

Section

G 2 of the Act.

H

In appeal to this Court, the appellant contended that her marriage was

solemnised with the respondent according to Hindu rites

and customs; that

the custom in the Tribe mandates monogamy as a rule; that the second

marriage was solemnised during the-subsistence of the first marriage and 102s·

DR. S.S. KU.IUR v. D.C. HANSDAH 1029

so the second marriage is void; that the respondent has not obtained divorce A

through Court of Law; that if the second marriage is not void and the

respondent is not guilty ofbigamy, then she is entitled to maintenance,

succession and other benefits on :iccount of her being the legally wedded wife

of the respondent.

Dismissing the appeal, the Court

HELD: I. In the complaint, the appellant has not referred to any alleged

custom having the force of law which prohibits the solemnisation of second

marriage by the respondent and the consequences thereof. Mere pleading of

B

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 C

during the life of such husband or wife. In order to prove the second marriage

V 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 D

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

is

normally and usually defined by

~ a statute. (1033-F-H)

2. In view of the fact that parties admittedly belong to the Scheduled E

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 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 F

the Indian Penal Code can possible be made out against the respondent.

(1034-C-DI

3. With respect to the entitlement to maintenance, succession and other

benefits, the appellant is at liberty to get her right established by way of civil

proceedings

in a competent court of jurisdiction. If any such proceedings are G ""f initiated, the same would be decided on their merits in accordance with the

principles of pleadings and proof, not being influenced by any of the

observations made by the Trial Magistrate or the High Court. (1034-F-G(

Mirza Raja Pushpavati Vijayaram Gajapathi Raj & Ors. v. Sri

Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors., AIR H

1030 SUPREME COURT REPORTS [2001] I S.C.R.

A 11964) SC 118; Bhagwan Kaer v. JC. Bose & Ors., ILR XXXI Calcutta Series

11 and Rama!akshmi Ammal v. Sivanatha Peruma/, 14 Moo. Ind. App. 570,

relied on.

B

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

186 of2001.

From the Judgment and Order dated 7.3.2000 of the Delhi High Court

in Crl. R.P. No. 172 of 1997.

Sushil Kr. B.S. Mor and N.S. Bisht for the Appellant.

C Anku I Chandra Pradhan and Shiv Sagar Tiwari for the Respondents.

The Judgment of the Court was delivered by

SETHI, J. Leave granted.

D Who is a "Hindu" for the purposes of the applicability of the Hindu

Marriage Act, 1955 (hereinafter referred to as "the Act")? is a question oflaw

to be determined in this appeal.

Section 2 of the Act specifies the persons to whom the Act is applicable. )--

Clauses (a), (b) and (c) of Sub-section (I) of Section 2 make the Act applicable

E 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 Brah mo, Prarthana or

Arya

Samaj and to persons who is a Buddhist, Jaina 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

F

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.

The term "Hindu" has not been defined either under the Act or Indian

Succession Act or any other enactment of the Legislature. As far back as in

1903 the Privy Council in Bhagwan Kaer v. JC. Bose & Ors., [ILR (XXXI)

G Calcutta Series 11) 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

H is marked by eclecticism and tolerance and almost unlimited freedom

DR. S.S. KUJUR v. D.C. HANSDAH [SETHI, J.] 1031

of private worship. Its social code is much more stringent, but amongst A

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 Chamaras 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 B

Hindus, not practically and 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."

The Act, is, therefore, applicable to:

"(I) All Hindus including a Virashaiva, a Lingayat, a Brahmo, Prarthana C

Samajist and an Arya Samajist.

(2) Budhists

(3) Jains

(4) Sikhs"

In this appeal the parties are admittedly tribals, the appellant being a

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

D

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) E

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, I 08 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 F

Tribals, who otherwise profess Hinduism, but their marriage being out of the

purview of

Hindu Marriage Act, 1955 in light of

Section 2(2) of the Act, are

thus governed only by their Santai Customs and usage".

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 G

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.

No custom can create an offence as it essentially deals with the civil H

1032 SUPREME COURT REPORTS [2001) 1 S.C.R.

A 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

B by way of fine or imprisonment. Article 20 of the Constitution, guaranteeing

protection

in respect of

convict~on 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

C intravires statutory, orders and orders made in exercise of powers conferred

by the statutory rules.

The expression "custom and usage" has been defined under Section

3(a)

of the Act as:

D

"the expression 'custom' and 'usage' and 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

E public policy; and

F

G

Provided further that in the case. of a rule applicable only to a family

it has not been discontinued by the family."

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. Sivanatha Perumal Sethuraya, [14 Moo. Ind. App. 570 at p. 585] held:

"It is of the essence of special usage 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

H to recognition

depends."

DR. S.S. KUJUR v. D.C. HANSDAH [SETHI, J.] 1033

This Court in Mirza Raja Pushpavati Vljayaram Gajapathi Raj & Ors. A

v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors.,

AIR (1964) SC 118 again reiterated the same position of law regarding the

establishment

of a custom upon which a party intends to rely.

The importance

of the custom in relation to the applicability of the Act

has been acknowledged by the Legislature

by incorporating

Section 29 saving B

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 C

precedent for

declaring the marriage invalid as incorporated in Sections I 0 to

13 of the Act.

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 D

customs". Alleging that the respondent has solemnised another marriage with

the Accused No.

2, the complainant pleaded:

"That the accused No. I has not obtained any divorce thro' the Court

of Law upto this date and hence the action of the accused No. I is

illegal and contravene the provision of law as laid down under Section E

494 !PC."

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 F

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 being 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 G

enforced in law or non-est. The fact of second marriage being void is a sine

Y qua non for the applicabi I ity 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

is 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 H

1034 SUPREME COURT REPORTS [200 I] I S.C.R.

A recorded on 24th October, 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 there is evidence of such custom.

In the absence of pleadings and evidence refP.rence to Book alone is not

sufficient". The High Court vide the judgment :mpugned in this appeal held

B that in the absence of notification in tenns 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 tenned

to be void either under the Act or any alleged custom having the force of

law.

C 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

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

D 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.

Learned Counsel appearing for the appellant, however, submitted that

E even if the second marriage was not void for the purposes of attracting the

applicability

of

Section 494 and holding the respondent guilty of bigamy, the

appellant

is entitled to maintenance, succession and other benefits on account

of tier being the

legally wedded wife of the respondent. We cannot adjudicate

upon such a proclaimed right of the appellant. The appellant is at liberty to

p get her right established by way of civil proceedings in a competent court of

jurisdiction. If any such proceedings are initiated, the same would be decided

on their merits in accordance with the principles of pleadings and proof, not

being influenced

by any of the observations made by the trial magistrate or

the

High

Court.

G There is no merit in this appeal which is accordingly dismissed.

B.S. Appeal dismissed.