Case Analysis: Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr
Case Details
Case name: Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr
Court: Supreme Court of India
Judges: Raghubar Dayal, J.; J.R. Mudholkar; V. Ramaswami
Date of decision: 01 February 1965
Citation / citations: 1965 AIR 1564; 1965 SCR (2) 837
Case number / petition number: Criminal Appeal No. 178 of 1963; Criminal Revision Application No. 388 of 1963
Proceeding type: Criminal Appeal
Source court or forum: Bombay High Court
Source Judgment: Read judgment
Factual and Procedural Background
Bhaurao Shankar Lokhande (appellant No. 1) had been married to Indubai around 1956. In February 1962, while Indubai was still alive, he purportedly married Kamlabai. His brother, Deorao Shankar Lokhande (appellant No. 2), was also tried in the same proceeding. The trial court convicted appellant No. 1 under Section 494 of the Indian Penal Code and appellant No. 2 under Section 494 read with Section 114 IPC. Both convictions were affirmed by the Sessions Judge and by the Bombay High Court on revision (Criminal Revision Application No. 388 of 1963). The appellants then obtained special leave to appeal before the Supreme Court of India (Criminal Appeal No. 178 of 1963).
The prosecution alleged that the marriage between appellant No. 1 and Kamlabai was a “gandharva” marriage, as modified by a custom prevailing among the Maharashtrian community, and that the mere act of marrying while a first spouse was alive attracted liability under Section 494 IPC, irrespective of the marriage’s validity. The prosecution’s evidence consisted of witness testimony describing a night‑time ceremony on a wooden sheet that involved the laying of a carpet, exchange of garlands, a brief puja with a tambya pitcher, and the touching of foreheads by the bride and groom. No Brahmin priest was present, and the essential Hindu rites of invocation before the sacred fire and the taking of seven steps (saptapadi) were omitted.
The appellants contended that, for a conviction under Section 494 IPC, the prosecution must prove that the alleged second marriage had been solemnized in accordance with the religious rites applicable to the parties. They argued that the essential ceremonies required for a valid Hindu marriage were absent and that no evidence showed that the community’s custom had lawfully dispensed with those rites.
The State maintained that the custom of the community rendered the gandharva form sufficient and that Section 494 IPC applied even if the second marriage were void under Hindu law.
Issues, Contentions and Controversy
The Court was required to determine (i) whether the marriage between appellant No. 1 and Kamlabai had been solemnized in accordance with the religious rites and customs applicable to the parties; (ii) whether the existence of a living first wife rendered the second marriage void under Section 17 of the Hindu Marriage Act, 1955, thereby bringing it within the ambit of Section 494 IPC; and (iii) whether Section 494 IPC required the second marriage to be a valid marriage, or whether the mere act of marrying during the lifetime of a spouse, irrespective of validity, sufficed to constitute the offence.
The appellants’ contentions were that (a) the essential ceremonies of fire invocation and saptapadi had not been performed; (b) no evidence established a continuous and uniform custom that legally abrogated those ceremonies; and (c) consequently the marriage could not be said to have been “solemnized” within the meaning of Section 17 of the Hindu Marriage Act, and therefore Section 494 IPC could not be invoked.
The State’s contentions were that (a) the marriage was a gandharva marriage recognized by a local custom which dispensed with the omitted rites; (b) the touching of foreheads completed the marriage under that custom; and (c) Section 494 IPC applied to any marriage contracted while a first spouse was alive, regardless of its validity under personal law.
The controversy therefore centered on the legal necessity of establishing the validity of the alleged second marriage for a conviction under Section 494 IPC.
Statutory Framework and Legal Principles
Section 494 of the Indian Penal Code punished a person who, having a spouse living, married in any case in which such marriage was void by reason of its taking place during the life of the spouse.
Section 5 of the Hindu Marriage Act, 1955 required that neither party have a living spouse at the time of marriage.
Section 17 of the Hindu Marriage Act, 1955 declared any marriage solemnized after the Act’s commencement void if either party had a living spouse, and it incorporated the provisions of Sections 494 and 495 IPC.
Section 3(a) of the Hindu Marriage Act defined “custom” as any rule that, having been continuously and uniformly observed for a long time, had obtained the force of law among Hindus in a particular locality, tribe, community, group or family.
Section 7 of the Hindu Marriage Act required that a marriage be performed in accordance with the customary rites applicable to the parties.
The Court articulated a two‑fold test for the applicability of Section 494 IPC: (1) the alleged second marriage must be “solemnized” in accordance with the law applicable to the parties, which entails the performance of the essential Hindu rites of fire invocation and saptapadi; and (2) if those rites were omitted, the prosecution must prove that a custom uniformly observed in the community had lawfully modified or abrogated them, satisfying the definition of “custom” under Section 3(a).
The Court held that the expression “whoever … marries” in Section 494 IPC presupposed a marriage that was validly solemnized; a marriage that was not solemnized could not be said to be void by reason of occurring during the life of a spouse.
Court’s Reasoning and Application of Law
The Court examined the language of Section 494 IPC and the corresponding provisions of the Hindu Marriage Act. It concluded that “marriage” in the statute referred to a marriage that was validly solemnized in accordance with the applicable personal law. The Court observed that, under Hindu law, the essential ceremonies for a valid marriage were the invocation before the sacred fire and the taking of seven steps (saptapadi). In the present case, the evidence showed that these ceremonies were not performed.
The Court noted that the prosecution had offered no proof that the community’s custom had continuously and uniformly dispensed with the essential rites. Witnesses described a simple ritual of garlanding and forehead touching, but none affirmed that such acts alone satisfied the legal requirements for a valid gandharva marriage or that the custom had acquired the force of law under Section 3(a).
Applying the two‑fold test, the Court found that the first prong failed because the essential rites were absent, and the second prong failed because no established custom justified their omission. Consequently, the marriage between appellant No. 1 and Kamlabai could not be described as “solemnized” within the meaning of Section 17 of the Hindu Marriage Act, and therefore the offence contemplated by Section 494 IPC did not arise.
The Court further held that the conviction of appellant No. 2 under Section 494 read with Section 114 IPC could not stand, as the same defect in the underlying marriage applied to him.
Final Relief and Conclusion
The Supreme Court set aside the convictions of both appellants under Section 494 IPC (and Section 114 IPC where applicable). It acquitted the appellants, discharged the bail bond of appellant No. 1, and ordered the refund of any fines that had been paid. The appeal was allowed, and the procedural consequences of the lower‑court convictions were reversed.