Bhaurao Shankar Lokhande v.

State of Maharashtra
1965 SCR (2) 837

Submitted to: Submitted by:

Ms. VINAYAKA RAINA Sarthak kapoor (19213229)

 CONTENT

 FACTS

 ISSUES

 ARGUMENTS

 JUDGEMENT
Facts:

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 I.P.C. The latter three were acquitted by the Magistrate. Appellant No. 1 was
convicted under Section 494 I.P.C. and appellant No. 2 for an offence under Section 494  read
with Section 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.

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 S. 494 I.P.C. that the second marriage be a valid one.
ISSUE:-

Whether, for an offence to be committed under Section 494 IPC, it was necessary to establish
that the second marriage has been duly performed in accordance with the essential religious rites
applicable to the form of marriage?

The Hon’ble Supreme Court stated that the expression “whoever…. marries” under Section 494,
IPC means “whoever marries validly or whose marriage is a valid one”. If the marriage is not
valid in itself then the question of its being void does not arise by reason of taking place during
the lifetime of husband or wife. If the marriage is not valid, it is considered to be ‘no marriage’
in the eye of law. The bare fact that a man and a woman living as a husband and a wife does not
give them the status of husband and wife even they declared themselves as husband and wife
before the society.

The Court further stated that for declaring a marriage to be void for Hindus under Section 17 of
Hindu Marriage Act, 1955, two essentials requirements are to be fulfilled namely, (1) the
marriage is solemnized after passing of the act and (2) at the date of such marriage, either party
has a living spouse. Unless the marriage ceremonies are duly performed, it cannot be said to be
solemnized within the meaning of Section 17 of the said act. The word ‘solemnise’ means ‘to
celebrate the marriage with proper ceremonies and due form’. Merely going through certain
ceremonies with the intention that parties were considered to be married will not make the
ceremonies a prescribed by any law or approved by any established custom. It is therefore
essential, for the purpose of Section 17 of Hindu Marriage Act, that the marriage to which
Section 494 IPC applies should be performed with proper ceremonies.

The Court further stated that there are two ceremonies which are essential to the validity of a
marriage, whether it be in the Brahma form or the Asura form, namely, (1) Invocation before the
sacred fire and (2) Saptapadi, which means taking of seven steps by the bridegroom and the bride
before the sacred fire. These ceremonies have to be performed for a valid marriage to come into
existence.

The offence of bigamy is committed only if the required ceremonies of marriage are performed
by the parties.
HELD:-

The Supreme Court held that unless the marriage took place by performing certain ceremonies as
per the requirement of the law, that marriage cannot be said to be ‘solemnized’ within the
meaning of Section 17 of Hindu Marriage Act, 1955. The Court allowed the appeal and set aside
the conviction of appellant no. 1 under Section 494, IPC and of appellant no. 2 under Sections
494 r/w Section 114 of IPC.