Case: Bhaurao Shankar Lokhande &amp; Anr Vs. State Of Maharashtra &amp; Anr

It is not disputed that these two essential ceremonies were not performed when appellant No. 1 married Kamalbai 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. 10. What took place that night when appellant No. 1 married Kamlabai, has been stated thus, by P.W. 1:"The marriage took place at 10 p.m. 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 others forehead. " 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 Bher 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. 3s 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. " 11. 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 customs these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of the fore-heads completed the Gandharva. form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage. 12. Bhagwan, witness No. 3 for the complainant, made no statement 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 Mangal Ashtakas were to be chanted. The statement of Jeebhau, witness No. 4. for the complainant, does not show how the custom has 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 are not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangal Ashtakas. It was necessary to have a maternal uncle or any other person to make touch the foreheads of the spouses together. A Brahmin from Kasara and Dhadana 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 Hindu Marriage Act. 13. Clause (a) of S. 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. 14. We are, therefore, of opinion that the prosecution has failed to establish that the marriage between appellant No. 1 and Kamlabal in February 1962 performed in accordance with the customary rites as required by S. 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. 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 S. 494, I.P.CIn the absence of a statement by the witness himself that according to customs these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of theforeheadscompleted the Gandharva. form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage12. Bhagwan, witness No. 3 for the complainant, made no statement 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 Mangal Ashtakas were to be chanted. The statement of Jeebhau, witness No. 4. for the complainant, does not show how the custom has 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 are not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangal Ashtakas. It was necessary to have a maternal uncle or any other person to make touch theforeheadsof the spouses together. A Brahmin from Kasara and Dhadana 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 Hindu Marriage Act13. Clause (a) of S. 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 family14. We are, therefore, of opinion that the prosecution has failed to establish that the marriage between appellant No. 1 and Kamlabal in February 1962 performed in accordance with the customary rites as required by S. 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law.