minal Appeal No 178 of 1963
Appeal by special leave from the judgment and order dated August 19 1963 of the Bombay High Court in Criminal Revision Application No 388 of 1963
section G Patwardhan and M section Gupta for the appellants
W section Barlingay B R G K Achar for R H Dhebar for respondent No 1
The Judgement of the Court was delivered by Raghubar Dayal J Bhaurao Shankar Lokhande appellant No 1 was married to the complainant Indubai in about 1956
He married Kamlabai in February 1962 during the lifetime of Indubai
Deorao Shankar Lokhande appellant No 2 is the brother of the first appellant
These two appellants together with Kamlabai and her father and accused No 5 a barber were tried for an offence under section 494 IPC
The latter three were acquitted by the Magistrate
Appellant No 1 was convicted under section 494 IPC and appellant No 2 for an offence under section 494 read with section 114 IPC Their appeal to the Sessions Judge was dismissed
Their revision to the High Court also failed
They have preferred this appeal by special leave
The only contention raised for the appellants is that in law it was necessary for the prosecution to establish that the alleged second marriage of the appellant No 1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through
It is urged for the appellants that the essential ceremonies for a valid marriage were not performed during the proceedings which took place when appellant No 1 and Kamlabai married each other
On behalf of the State it is urged that the proceedings of that marriage were in accordance with the custom prevalent in the community of the appellant for gandharva form of marriage and that therefore the second marriage of appellant No 1 with Kamlabai was a valid marriage
It is also urged for the State that it is not necessary for the commission of the offence under section 494 IPC that the second 8 39 marriage be a valid one and that a person going through any form of marriage during the life time of the first wife would commit the offence under section 494 IPC even if the later marriage be void according to the law applicable to that person
Section 494 IPC reads  Whoever having a husband or wife living marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either descrip tion for a term which may extend to seven years and shall also be liable to fine Prima facie the expression whoever marries  must mean whoever marries validly  or whoever marries and whose marriage is a valid one 
If the marriage is not a valid one according to the law applicable to the parties no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises
If the marriage is not a valid marriage it is no marriage in the eye of law
The bare fact of a man and a woman living as husband and wife does not at any rate normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife
Apart from these considerations there is nothing in the Hindu law as applicable to marriages till the enactment of the of 1955 which made a second marriage of a male Hindu during the life time of his previous wife void
Section 5 of the provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage
Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living and that the provisions of sections 494 and 495 IPC shall apply accordingly
The marriage between two Hindus is void in view of section 17 if two conditions are satisfied  i the marriage is solemnized after the commencement of the Act ii at the date of such marriage either party had a spouse living
If the marriage which took place between the appel lant and Kamlabai in February 1962 cannot be said to be solemnized  that marriage will not be void by virtue of section 17 of the Act and section 494 IPC will not apply to such parties to the marriage as had a spouse living
L4Sup65 7 840 The word solemnize  means in connection with a marriage to celebrate the marriage with proper ceremonies and in due form  according to the Shorter Oxford Dictionary
It follows therefore that unless the marriage is celebrated or performed with proper ceremonies and due form  it cannot be said to be solemnized 
It is therefore essential for the purpose of section 17 of the Act that the marriage to which section 494 IPC applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form
Merely going through certain ceremonies with the intention that the parties be taken to be married will not make them ceremonies Prescribed by law or approved by any established custom
We are of opinion that unless the marriage which took place between appellant No 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties the marriage cannot be said to have been solemnized  and therefore appellant No 1 cannot be held to have committed the offence under section 494 IPC
We may now determine what the essential ceremonies for a valid marriage between the parties are
It is alleged for the respondent that the marriage between appellant No 1 and Kamlabai was in gandharva  form as modified by the custom prevailing among the Maharashtrians
It is noted in Mullas Hindu Law 12th Edition at p 605  The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and sensual inclination
It has at times been erroneously described as an euphemism for concubinage
This view is based on a total misconception of the leading texts of the Smritis
It may be noted that the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by custom in any particular community or caste
 At p 615 is stated  1 There are two ceremonies essential to the validity of a marriage whether the marriage be in the Brahma form or the Asura form namely 1 invocation before the sacred fire and 841 2 saptapadi that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire
2 A marriage may be completed by the performance of ceremonies other than those referred to in subsection 1 where it is allowed by the custom of the caste to which the parties belong
 It is not disputed that these two essential ceremonies were not performed when appellant No 1 married Kamlabai in February 1962
There is no evidence on record to establish that the performance of these two essential ceremonies has been abrogated by the custom prevalent in their community
In fact the prosecution led no evidence as to what the custom was
It led evidence of what was performed at the time of the alleged marriage
It was the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the gandharva  form of marriage in their community
Such a statement does not mean that the custom of the community deemed what took place at the marriage  of the appellant No 1 and Kamlabai sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated
There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage
What took place that night when appellant No 1 married Kamlabai has been stated thus by PW 1  The marriage took place at 10 pm Pat wooden sheets were brought
A carpet was spread
Accused No 1 then sat on the wooden sheet
On the other sheet accused No 3 sat
She was sitting nearby accused No 1
Accused No 4 then performed some Puja by bringing a Tambya pitcher
Betel leaves and coconut was kept on the Tambya
Two garlands were brought
Accused No 2 was having one and accused No 4 having one in his hand
Accused No 4 gave the garland to accused No 3 and accused No 2 gave the garland to accused No 1
Accused nos
1 and 3 then garlanded each other
Then they each struck each other s forehead
 842 In cross examination this witness stated It is not that Gandharva according to our custom is performed necessarily in a temple
It is also not that a Brahmin Priest is required to perform the Gandharva marriage
No Mangala Ashtakas  are required to be chanted at the time of Gandharva marriage
At the time of marriage in question no Brahmin was called and Mangala Ashtakas were chanted
There is no custom to blow a pipe called Sher  in vernacular
 Sitaram witness No 2 for the complainant made a similar statement about what happened at the marriage ceremony and further stated in the examination in chief  Surpan is the village of accused No 3 s maternal uncle and as the custom is not to perform the ceremony at the house of maternal uncle so it was performed at another place
There is no custom requiring a Brahmin Priest at the time of Gandharva He stated in cross examination  A barber is not required and accused No 5 was not present at the time of marriage
There is a custom that the father of girl should make to touch the foreheads of the girl and boy to each other and the Gandharva is completed by the act
 It is urged for the respondent that as the touching of the forehead by the bridegroom and the bride is stated to complete the act of Gandharva marriage it must be concluded that the ceremonies which according to this witness had been performed were all the ceremonies which by custom were necessary for the validity of the marriage
In the absence of a statement by the witness himself that according to custom these ceremonies were the only necessary ceremonies for a valid marriage we cannot construe the statement that the touching of the foreheads completed the gandharva form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage
Bhagwan witness No 3 for the complainant made no state ment about the custom but stated in cross examination that it was not necessary for the valid performance of gandharva marriage in their community that a Brahmin priest was required and mangala ashtakas were to be chanted
The statement of Jeebhau witness No 4 for the complainant does not show how the custom has 843 modified the essential forms of marriage
He stated in cross examination  I had witnessed two Gandharvas before this
For the last 5 or 7 years a Brahmin Priest a Barber and a Thakur is not required to perform the Gandharva but formerly it was essential
Formerly the Brahmin used to chant Mantras and Mangala ashtakas
It was necessary to have a maternal uncle or any other person to make touch the foreheads of the sponsors together
A Brahmin from Kasara and Dhandana comes to our village for doing rituals but I do not know their names
 This statement too does not establish that the two essential ceremonies are no more necessary to be performed for a Gandharva marriage
The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended does not establish that their performance is no more necessary according to the custom in that community
Further Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies which till then were essential for the marriage were given up
If so the departure from the essentials cannot be said to have become a custom as contemplated by the 
Clause a of section 3 of the Act provides that the expressions custom  and usage  signify any 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
We are therefore of opinion that the prosecution has failed to establish that the marriage between appellant No 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by section 7 of the Act
It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law
It follows therefore that the marriage between appellant No 1 and Kamlabai does not come within the expression solemnized marriage  occurring in section 17 of the Act and consequently does not come within the mischief of section 494 IPC even though the first wife of appellant no1 was living when he married Kamlabai in 1 February 1962
We have not referred to and discussed the cases referred to in support of the contention that the subsequent marriage  referred 844 to in section 494 IPC need not be a valid marriage as it is unnecessary to consider whether they have been correctly decided in view of the fact that the marriage of appellant No 1 with Kamlabai could be a void marriage only if it came within the purview of section 17 of the Act
The result is that the conviction of appellant No 1 under section 494 IPC and of appellant No 2 under section 494 read with section 114 IPC cannot be sustained
We therefore allow their appeal set aside their convictions and acquit them
The bail bonds of appellant No 1 will stand discharged
Fines if paid will be refunded
Appeal allowed


Summary:
Appellant No 1 was convicted of an offence under section 494 IPC and appellant No 2 of abetting him for going through a marriage which was void by reason of its taking place during the life time of a previous wife
It was contended on behalf of the appellants that in law it was necessary for the prosecution to establish that the alleged marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through
On the other hand it was urged by the State that for the commission of an offence under section 494 it was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the life time of the first wife would commit the offence and that in any event in the present case the rites necessary for a Gandharva  form of marriage as modified by custom prevailing among Maharashtrians had been duly observed
HELD i Prima facie the expression whoever marries  in section 494 must mean whoever marries validly  or whoever marries and whose marriage is a valid one
If a marriage is not a valid one according to the law applicable to the parties no question arises of its being void by reason of its taking place during the life of the husband or wife of the person marrying 839 C D ii For a marriage between two Hindus to be void by virtue of section 17 of the  two conditions are required to be satisfied ie a the marriage is solemnised after the Act and b at the date of such marriage either party has a spouse living
Unless the mar riage is celebrated or performed with proper ceremonies and due form it cannot be said to be solemnised  within the meaning of section 17
Merely going through certain ceremonies with the intention that the parties be taken to be married will not make them ceremonies prescribed by law or approved by any established custom
839 G H 840 A C iii The two ceremonies essential to the validity of a Hindu marriage ie invocation before the sacred fire and sapatapadi are also a requisite part of a Gandharva  marriage unless it is shown that some modification of these ceremonies has been introduced by custom in any particular community or caste
It was not disputed that in the present case these two ceremonies were not performed when the appellant No 1 married a second time and the evidence on record did not establish that these essential ceremonies had been abrogated by custom
The prosecution had therefore failed to establish that the second marriage was performed in accordance with the customary rites applicable
840 H 84 A C 843 E G 838 Mullas Hindu Law 12th Edn
605 and 615 relied upon
iv The facts that the two essential ceremonies may not have been performed for a period of five or seven years could not be said to have established a custom as contemplated by section 3a of the 
843 C E