CASE NO.: Appeal (crl.) 186 of 2001 Special Leave Petition (crl.) 2436 of 2000 PETITIONER: DR.SURAJMANI STELLA KUJUR Vs. RESPONDENT: DURGA CHARAN HANSDAH & ANR. DATE OF JUDGMENT: 14/02/2001 BENCH: K.T.Thomas, R.P.Sethi JUDGMENT:
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SETHI,J.
Leave granted. 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 of
law 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 (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 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 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 Koer v. J.C. Bose & Ors. [ILR
(XXXI) 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 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 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 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: “(1) All
Hindus including a Virashaiva, a Lingayat, a Brahmo,
Prarthana 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 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
Hindu Marriage Act, 1955 in light of Section 2(2) of the
Act, are thus governed only by their Santal 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 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 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
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: “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 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.”
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 to
recognition depends.”
This Court in Mirza Raja Pushpavati Vijayaram
Gajapathi Raj & ors. 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 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. 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 the Accused
No.2, the complainant pleaded: “That the accused No.1 has
not obtained any divorce thro’ the Court of Law upto this
date and hence the action of the accused No.1 is illegal and
contravene the provision of law as laid down under Section
494 IPC.”
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 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 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 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 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 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. 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
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 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 her 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 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. There is no merit in
this appeal which is accordingly dismissed.
