BHAURAO SHANKAR LOKHANDE & ANR

V.
STATE OF MAHARASHTRA & ANR
1965 AIR 1564
Facts:

Bhaurao Lokhande was married to Indubai in 1956. He later married Kamlabai in February
1962, during the lifetime of Indubai. As a result of Indubai’s complaint, Bhaurao was tried
under Sec. 4941 of IPC while the rest were tried under the same section read along with Sec.
1122.

Issue:

Whether or not a solemnized marriage of a husband, during the lifetime of his first wife, can
be deemed a valid marriage and does it make husband liable under Sec. 494 of the Indian Penal
Code?

Holding:

The Supreme Court of India answered the above mentioned issue in negative.

Rationale:

According to Mullas Hindu Law, the two essentials of a marriage under Hindu Law are (i)
invocation before the sacred fire and (ii) saptapadi. Four witness statements were recorded,
each of whom spoke about the past and present state of certain customs involved in the
Gandharva3 form of marriage. Certain customs which were followed about 5-7 years ago were

1
Marrying again during lifetime of husband or wife.—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 description for a term which may extend to seven years, and shall also be
liable to fine. (Exception) —This section does not extend to any person whose marriage with such husband or
wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage
during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall
have been continually absent from such person for the space of seven years, and shall not have been heard of by
such person as being alive within that time provided the person contracting such subsequent marriage shall, before
such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so
far as the same are within his or her knowledge.
2
Abettor when liable to cumulative punishment for act abetted and for act done.—If the act for which the abettor
is liable under the last preceding section is committed in addition to the act abetted, and constitutes a distinct
offence, the abettor is liable to punishment for each of the offences.
3
These self-arranged marriages in India are now called love marriages. Most of these, however, do involve
some form of ceremony where friends and members of family are present.
no longer considered of high importance and so were not performed at all weddings. However,
the fact that the customs had been done away with, does not mean they are no longer necessary.
Sec. 3(a)4 of the Hindu Marriage Act, 1955 defines a ‘custom’ as a rule which having been
continuously observed for a long time, has obtained the force of law among Hindus in any local
area, tribe, community or family.

Hence, until it can be proved that both the essential customs were performed, the marriage
cannot be said to be solemnized and thus Sec. 175 of the Hindu Marriage Act, 1955 cannot be
applied to the said marriage.

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.

For a marriage between two Hindus to be void by virtue of Sec. 17 of the Hindu Marriage Act,
1955, two conditions are required to be satisfied, i.e. (a) the marriage is solemnized after the
Act; and (b) at the date of such marriage, either party has a spouse living. Unless the marriage
is celebrated or performed with proper ceremonies and due form, it cannot be said to be
‘solemnized’ within the meaning of Sec. 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.

4
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: 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.
5
Punishment of bigamy. —Any marriage between two Hindus solemnized after the commencement of this Act is
void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494
and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.