CASE LAW 1: Surajmani Stella Kujur v.

Durga Charan Hansdah

In view of Sec. 2(2), H.M. Act, the Scheduled Tribes could be brought under the purview of H.M.
Act if a Notification is issued; otherwise, they would be governed by their customs. But such
custom has to be proved by clear evidence.

FACTS: An Oraon tribal girl (Dr. Surajmani Stella Kujur) sought the prosecution of her Santhal
husband (Durga Charan Hansdah) on charges of bigamy, i.e. solemnizing a second marriage
during the subsistence of the first, under S. 494 of the Indian Penal Code. She contended that
even if their marriage was not governed by the Hindu Marriage Act, the practice of monogamy was
granted the status of a custom in her tribe.

ISSUES: 1. Who is the "Hindu" for the purposes of the Hindu Marriage Act, 1955 (the "Act")
2. Was the second marriage valid?

OBSERVATIONS:

1. THE PARTIES ARE HINDUS

1.1 The applicability of the H.M. Act is comprehensive and applicable to all persons domiciled in
the territory of India who are not Muslims, Christians, Parsis or Jews by religion.
1.2 In this appeal the parties are admittedly tribals. In the absence of a notification/order under Art.
342 of the Constitution they are deemed to be Hindus. The provisions of the Act are applicable to
the parties.

2. CUSTOM NEEDS TO BE ANCIENT, CERTAIN and REASONABLE

2.1 Sec 3(a) of the HMA, 1945 defines custom. It signifies 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.
2.2 For custom to have the colour of a rule of law, it is necessary for the party claiming it to plead
and thereafter prove that such custom is ancient, certain and reasonable.
2.3 In other words, the Court established that there has to be the existence of clear and
unambiguous evidence for a custom to be given the force of law.

3. CUSTOM and CIVIL RIGHTS

The Court rejected the plaintiff’s plea stating “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
the violation of law in force at the time of commission of the act charged.”

4. ALLEGING MONOGAMY IS NOT ENOUGH

The court further observed: Sec. 29(2) of the H.M. Act recognizes the importance of custom,
however he bench emphasized that mere pleading of a custom alleging monogamy was, by itself,
not sufficient unless it was pleaded that the second marriage was void by reason of its taking place
during the life of such husband or wife, rendering the second marriage null, ineffectual and non est.
Therefore, in absence of specific pleadings, evidence and proof of the alleged custom making the
second marriage void, the Court held that no offence under S. 494 of IPC could be made out
against the respondent.

DECISION
The court held: In the absence of specific pleadings, evidence and proof of the alleged custom
making the second marriage void, no offence under Sec. 494, IPC can possibly be m

VOID MARRIAGES (SECTION 11)

The term void means null and which ceases to be enforceable by law and the term marriage is
considered one of the most important institutions of Hindus and in their social life it is occupying
important place. Hindu marriage’s context is religious and is considered as a part of the life of the
soul. For a valid Hindu marriage certain essential conditions prescribed under Section 5 of Hindu
Marriage Act, 1955 has to be fulfilled by the parties otherwise the contravention of the conditions
can lead to void or voidable marriages.