Case Analysis: Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr
Case Details
Case name: Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr
Court: Supreme Court of India
Judges: Raghubar Dayal, J.R. Mudholkar, V. Ramaswami
Date of decision: 01 February 1965
Citation / citations: 1965 AIR 1564; 1965 SCR (2) 837
Case number / petition number: Criminal Appeal No. 178 of 1963; Criminal Revision Application No. 388 of 1963
Neutral citation: 1965 SCR (2) 837
Proceeding type: Criminal Appeal (by special leave)
Source court or forum: Bombay High Court
Source Judgment: Read judgment
Factual and Procedural Background
Bhaurao Shankar Lokhande (appellant No. 1) had married Indubai around 1956. In February 1962, while Indubai was still alive, he purportedly married Kamlabai. Deorao Shankar Lokhande (appellant No. 2) was the brother of the first appellant and was alleged to have participated in the same ceremony. The prosecution described the second ceremony as a “gandharva” marriage performed according to a custom prevailing among Maharashtrians. The ceremony, according to trial evidence, took place at night on a wooden sheet, involved the exchange of garlands, a puja with a tambya pitcher, and the touching of foreheads, but omitted a sacred fire and the saptapadi (seven steps).
The trial magistrate convicted appellant No. 1 under Section 494 of the Indian Penal Code (IPC) and appellant No. 2 under Section 494 read with Section 114 IPC. The magistrate acquitted Kamlabai’s father and an accused barber. The convictions were affirmed by the Sessions Judge and rejected on revision before the Bombay High Court (Criminal Revision Application No. 388 of 1963) on 19 August 1963. The appellants then obtained special leave and filed a criminal appeal (Criminal Appeal No. 178 of 1963) before this Court.
The appellants prayed that their convictions be set aside, that they be acquitted, that the bail bond of appellant No. 1 be discharged, and that any fine already paid be refunded.
Issues, Contentions and Controversy
The Court was called upon to determine whether Section 494 IPC required the second marriage to be a “solemnized” marriage—that is, a marriage performed in accordance with the essential Hindu rites or a custom that had acquired the force of law—before the offence could be established. The State contended that any marriage contracted during the lifetime of a living spouse, irrespective of its validity under personal law, fell within Section 494. It argued that the gandharva ceremony, as described, satisfied the community’s custom and therefore constituted a valid marriage.
The appellants contended that the prosecution must prove that the second marriage had been solemnized with the essential ceremonies prescribed by Hindu law—invocation before the sacred fire and saptapadi—or that a duly proved custom had lawfully abrogated those rites. They maintained that such ceremonies were absent, that no competent evidence established a custom dispensing with them, and consequently the marriage could not be described as “solemnized” within the meaning of Section 17 of the Hindu Marriage Act. Hence, they argued, Section 494 could not attach to their conduct.
Statutory Framework and Legal Principles
Section 494 IPC penalises a person who, having a spouse living, contracts a marriage that is void because it is performed during the life of the spouse. Section 114 IPC deals with abetment of an offence. Section 17 of the Hindu Marriage Act, 1955 declares a marriage void if it is solemnized after the commencement of the Act while either party has a living spouse. Section 5 of the Act enumerates the conditions for a marriage to be solemnized; Section 7 defines the customs and usages applicable to Hindus; and Section 3(a) explains that a “custom” must be continuous, uniform, and of long duration to acquire the force of law.
The Court identified the essential ceremonies for a valid Hindu marriage as (i) invocation before the sacred fire and (ii) the taking of the seven steps (saptapadi). It held that “solemnized” means the marriage must be celebrated with proper ceremonies and in due form, either as prescribed by Hindu law or as modified by a custom that satisfies the requirements of Section 3(a).
Court’s Reasoning and Application of Law
The Court reasoned that the expression “whoever … marries” in Section 494 IPC presupposes a marriage that is valid under the law applicable to the parties. It held that a marriage which is not solemnized—i.e., which lacks the essential rites or a recognised custom that lawfully omits them—cannot be described as “void by reason of its taking place during the life of such husband or wife.”
Applying this principle, the Court examined the evidence of the alleged February 1962 ceremony. It found that the witnesses uniformly testified that the essential rites of fire‑invocation and saptapadi were not performed. The prosecution offered no documentary or testimonial proof that the community’s custom permanently and uniformly dispensed with those rites, a requirement under Section 3(a) of the Hindu Marriage Act. Consequently, the Court concluded that the marriage was not “solemnized” within the meaning of Section 17.
Because the marriage was not solemnized, the condition for invoking Section 494 IPC was not satisfied. The same reasoning applied to appellant No. 2, whose conviction under Section 494 read with Section 114 depended on the existence of a valid second marriage, which the Court found to be absent.
Final Relief and Conclusion
The Court set aside the conviction of appellant No. 1 under Section 494 IPC and the conviction of appellant No. 2 under Section 494 read with Section 114 IPC. It ordered the acquittal of both appellants, directed that the bail bond of appellant No. 1 be discharged, and instructed that any fine already paid be refunded. The appeal was allowed, and the convictions were nullified.