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

1. 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 S. 494, I.P.C. The latter three were acquitted by the Magistrate. Appellant No. 1 was convicted under S. 494, I. P.C. and appellant No. 2 for an offence under S. 494 read with S. 114 I.P.C. Their appeal to the Sessions Judge was dismissed. Their revision to the High Court also failed. They have preferred this appeal by special leave

Reasoning: 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.