IMRAN ABDUL WAHID HASMI V/S THE DY. COMMISSIONER OF POLICE & ORS

 Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi 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 (b) andof Sub sectionof 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. 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 Budhists Jains 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 sectionof 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 OrderActs 63 of 1956 108 of 1976 187 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 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 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 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 This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. 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 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 sectionof 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 of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 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

Summary: Officer acting under Section 56 or any officer above the rank of an Inspector authorised by that Officer should inform such person in writing of the general nature of the material allegations against such person and give him a reasonable opportunity of tendering an explanation regarding them The Assistant Commissioner of Police Deonar Division, Mumbai had issued a show-cause notice dated 28th June, 2014 under Section 59 of the said Act. In the said show-cause notice, it was mentioned that it is proposed to extern the petitioner for a period of two years from Greater Bombay Suburban and Thane Districts. The show-cause notice refers to the statement of two persons recorded in-camera. It is further stated that the acts and movements of the petitioner are causing alarm, harm and danger to the peace living citizens and the businessmen in the area referred to therein. It is further mentioned that the witnesses referred to as witnesses (a) and (b) whose statements are recorded in-camera are not willing to come forward to depose against the petitioner in public. It is also mentioned that the citizens in the respective areas are not willing to complain against the petitioner on account of fear. The petitioner appeared before the inquiry officer and submitted his oral as well as written reply. Inquiry officer forwarded his report to the Externing Authority for further action.Pursuant to the aforesaid inquiry, an order of exernment was issued on 30th December, 2014 by the respondent no.1. In the said order, reference was made to the cases registered and pending against the petitioner. It is further mentioned that witnesses are not willing to come forward to depose against him on account of fear that there will be danger to their persons and properties. The Externing Authority had externed the petitioner from the area of Mumbai suburban and Thane District for a period of two years. The Petitioner challenged the order of externment by preferring an Appeal under Section 60 of the said Act. The said Appeal was rejected by order dated 9th April, 2015.In view of the aforesaid order of externment and disposal of the Appeal preferred by the petitioner, he has preferred the present petition by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. ISSUE BEFORE THE COURT:Whether the witnesses were not willing to come forward to depose against the petitioner? Whether the order of externment dated 30th December, 2014 issued by respondent no.1under Section 56(1)(a) and (b) of the Bombay Police Act, 1951 justifiable? Whether the order dated 9th April, 2015, passed by respondent no.3 dismissing the Appeal preferred by the petitioner under Section 60 of the said Act is valid? RATIO OF THE COURTIt is clear that the Externing Authority can pass the order of externment on the basis of criteria laid down therein. Such order can be issued on the basis of the satisfaction of such officer that the witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or properties.It is mandatory that before issuing the order of externment as stated above, a notice under Section 59 of the said Act is required to be issued and the proposed externee shall be informed of the allegations against him and should be given an opportunity of tendering an explanation or examining witnesses etc. On perusal of the order of externment as well as the show-cause notice, it is apparent that the action was initiated in exercise of powers under Section 56 (1)(a) and (b) of the said Act. In the notice, it has been mentioned that since 2011, the petitioners movements and activities had caused or calculated to cause danger, harm and alarm to the persons and properties of the residents, shop owners and businessmen from the area of Sanjay Nagar Hutments, Sant Nirankari Hutments at Shivaji Nagar, Vainganwadi, Govandi and adjoining areas. The petitioner was also informed that he was involved in commission of offences and the cases are pending against him as well as one case is under investigation. It is further mentioned that the petitioner has committed serious offences within the areas mentioned therein and have committed offences punishable under Chapters 16 and 17 of the Indian Penal Code. The notice further refers to the statements of two witnesses who are not willing to come forward to depose against him on account of fear which was recorded in-camera. In paragraph 4 of the notice, it is mentioned that the witnesses referred to in paragraph 2(a) and (b) are victims at the hands of the petitioners and they are not willing to come forward to depose against the petitioner in public. It is pertinent to note that the aforesaid assertion is in respect to the activities referred by witnesses (a) and (b) whose statements were recorded in-camera. Hence, as far as the other allegations referred to in the notice, there is no satisfaction therein that the witnesses in connection with said activities are not willing to come forward to depose against the petitioner in public. The notice spells out the activities which forms the grounds under Clause (a) and clause (b) of Section 56 (1) of the said Act, however, the satisfaction that the witnesses are not willing to come forward to depose against the petitioner is recorded only in respect of the activities reflected in paragraph nos. 2(a) and 2(b) of the notice. No such satisfaction is spelt out in respect of the activities reflected in the introductory paragraph 1(a) of the notice. The court observed that the satisfaction that witnesses are not willing to come forward to depose in public is reflected in respect of two witnesses referred to above which allegations would be covered by Section 56 (1)(b) of the said Act. Further, there were other allegations also which are covered by Section 56(1)(a) as well as 56(1)(b) in respect to which there was no such assertion as stated above. In the case of Yashwant Damodar Patil V/s. Hemant Karkare (1989 Mh.L.J. 1111) this court has held that : “The Fact that the in Clauses (a) and (b) of Section 56 (i) of the Bombay Police Act, is not sufficient by itself to warrant an order of externment. That fact, coupled with the opinion formed by the designated officer that witneses are not willing to come forward to give evidence in public for the reasons mentioned in clauses (a) and (b) of Section 56(i) of the Bombay Police Act, will provide a proper proposed externee is engaged or is about to be engaged in one or the other type of the activity or movement basis for the exercise of the power of externment under the provisions of the Act in any case of acts involved on the part of the proposed externee, where an order of externment proposed to be passed, it is necessary that the officer concerned must be satisfied that witnesses are not willing to come forward to give evidence against him. Notice of such satisfaction must also necessarily be given to the proposed externee under section 59 of the Bombay Police Act.”The Externing Authority has issued the order in exercise of powers under Section 56(1)(a) and (b) of the said Act. This Court has adjudicated the similar issues in Writ Petition Nos.1813 of 2-013 and 529 of 2014 in which the order of externment was quashed and set aside on the ground that it is not in accordance with law. DECISION HELD BY COURT:The court held that the impugned order of externment is contrary to the provisions of law.  The order does not comply the mandatory requirement stipulated in Section 56 (1)(a) and (b) of the said Act.  Hence, the impugned order is required to be quashed and set aside and rule made is absolute.