SCHOOL OF LAW & GOVERNANCE

ASSIGNMENT

FAMILY LAW-I

CRITICAL STUDY OF Bhaurao Vs State of Maharashtra AIR 1965 SC 1564

Under the Supervision of: ..............................

Submitted by

XYZ
TABLE OF CONTENTS Pg. No.
Acknowledgement
Research Methodology

1. Case Detail ……………………………………….. 5

2. Facts ……………………………………………… 6
3. Provisions ………………………………………... 7
4. Arguments ……………………………………….. 8
5. Judgement ………………………………………... 9-10
6. Critical Study …………………………………….. 11-12
7. Conclusion and Suggestion ………………………. 13
Bibliography
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to the Assistant

Professor.................. who gave me the golden opportunity to do this wonderful
project on a critical study of a case which also helped me in doing a lot of Research
and I came to know about so many new things I am really thankful to her.
I have taken lots of efforts by completing this project. However, it would not
have been possible without the kind support and help of many individuals and
organizations like Library and Computer Lab. I would like to extend my sincere
thanks to all of them.
Secondly, I would also like to thank my parents and friends who helped me a
lot in finalizing this project within the limited time frame.
I am highly indebted to Central University of South Bihar for their guidance
and constant supervision as well as for providing necessary information regarding
the project & also for their support in completing the project.

XYZ
 Research Methodology

This Case study is completed with the reference of official websites like
Manupatra, SCC and some websites including certain articles and Books.
This Critical study is presented in similar interpreted format in a crux form and not
the same lines were used.
PETITIONER:
BHAURAO SHANKAR LOKHANDE & ANR.

RESPONDENT:
STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT:
01/02/1965

BENCH:
DAYAL, RAGHUBAR

BENCH:
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
RAMASWAMI, V.

CITATION:
1965 AIR 1564

LEGISLATIONS:

Section 494 and 495 in The Indian Penal Code

The Indian Penal Code
Section 3,5,7,17 in The Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955
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 S. 494 I.P.C. The latter
three were acquitted by the Magistrate. Appellant No. 1 was convicted under S.
494 I.P.C. and appellant No. 2 for an offence underS. 494 read with S. 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:
1. Whether the second marriage solemnized by appellant was valid or not?
2. Whether the appellant is guilty for offence under S. 494 of Indian Penal
Code?
PROVISIONS

1. Section 494 in The Indian Penal Code

494. 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.

2. Section 7, Hindu Marriage Act 1955-

Ceremonies for a Hindu marriage

(1) A Hindu marriage may be solemnized in accordance with the customary rites
and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is taken.

3. Section 17, Hindu Marriage Act, 1955

Punishment of Bigamy- Any marriage between two Hindus solemnized afterthe

commencement of this Act is void if at the date of such marriage either partyhad a
husband or wife living; and the provisions of Sections 494 and 495 of theIndian
Penal Code (45 of 1860) shall apply accordingly.

4. Section 495 in The Indian Penal Code

Same offence with concealment of former marriage from person with whom
subsequent marriage is contracted.—Whoever commits the offence defined in the
last preceding section having concealed from the person with whom the subsequent
marriage is contracted, the fact of the former marriage, shall be punished with
imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
ARGUMENTS

The only contention raised for the appellants is that in law it was necessary for the
prosecution to establish that the alleged second marriage of the Appellant 1 with
Kamlabai in 1962 had been duly performed in accordance with the religious rites
applicable to the form of marriage gone through. 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 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 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 Section 494 IPC that the second
marriage be a valid one.

What took place when Appellant 1 married Kamlabai, has been stated thus, by PW
1: Accused no. 1 and 3 then garlanded each other. Then they each struck each
other’s forehead.

He stated in cross-examination:

There is a custom that the father of girl should make to touch the foreheads of the
girl and boy to each other and the Gandharva is completed by the act.

It is urged for the respondent that as the touching of the forehead by the
bridegroom and the bride is stated to complete the act of Gandharva marriage, it
must be concluded that the ceremonies which, according to this witness, had been
performed, were all the ceremonies which, by custom, were necessary for the
validity of the marriage. In the absence of a statement by the witness himself that
according to custom these ceremonies were the only necessary ceremonies for a
valid marriage, we cannot construe the statement that the touching of the foreheads
completed the gandharva form of marriage and that the ceremonies gone through
were all the ceremonies required for the validity of the marriage.
JUDGEMENT

Raghubar Dayal, J. - (1.) 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 S. 494, I.P.C.
The latter three were acquitted by the Magistrate. Appellant No. 1 was convicted
under S. 494, I. P.C. and appellant No. 2 for an offence under S. 494 read with S.
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.

(2.) The only contention raised for the appellants is that in law it was necessary for
the prosecution to establish that the alleged second marriage of the appellant No. 1
with Kamlabai in 1962 had been duly performed in accordance with the religious
rites applicable to the form of marriage gone through. 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 and that a person going through any form of marriage
during the lifetime of the first wife would commit the offence under S. 494, I.P.C.
even if the later marriage be void according to the law applicable to that person.

(3.) Section 494, I.P.C reads: "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." 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.;

We are therefore of opinion that the prosecution has failed to establish that the
marriage between appellant no. 1 and Kamlabai in February 1962 was performed
in accordance with the customary rites as required by s. 7 of the Act. It was
certainly not performed in accordance with the essential requirements for a valid
marriage under Hindu law. It follows therefore that the marriage between appellant
no. 1 and Kamlabai does not come within the expression ‘solemnized marriage’
occurring in S. 17 of the Act and consequently does not come within the mischief
of S. 494 I.P.C. even though the first wife of appellant no.1 was living when he
married Kamlabai in 1 February 1962.

APPEAL DISMISSED
CRITICAL STUDY

The provisions against bigamy have bred injustice over the years by allowing the
erring spouses to escape the clutches of law. They conveniently fail to perform
some ritual or ceremony as required by law for solemnisation of marriage, and
failing to prove that the second marriage was ‘valid’ the law paves the way for the
offenders to escape justice.

In Bhaurao Shankar Lokhande’s case, the accused husband was acquitted

merely because the complainant could not prove the existence of a custom
prevalent in their community which dispensed with the performance of two
ceremonies- invocation before the sacred fire and satpadi, and since these two
ceremonies were not performed the offence of bigamy was held to be not made
out.

The Hon’ble Karnataka High Court in the case of Ram Singh v. R. Susila Bai
And Anr.1 relied on the afore-mentioned judgement and gave the accused husband
benefit of doubt on the ground that the performance of two essential ceremonies-
invocation before the sacred fire and satpadi- were not proved by reliable
evidence.

In Santi Deb Berma v. Smt. Kanchan Prava Devi2, the Hon’ble Supreme Court
reversed the conviction order of the Hon’ble Guwahati High Court which relied on
the three letters and oral evidence which clearly showed that the accused husband
and his alleged second wife were leading a marital wife. The Court held that the
High Court’s decision was erroneous in the absence of any reliable evidence
proving the performance of saptpadi.

In Kanwal Ram And Ors. v. Himachal Pradesh Admn. 3, the Hon’ble Supreme
Court, relying on Empress v. Kallu4 and Morris v. Miller5, held- “it is clear that
in law such admission is not evidence of the fact of the second marriage having,

1
AIR 1970 Mys 201
2
AIR 1991 SC 816
3
AIR 1966 SC 614
4
(1882) I.L.R. 5 All. 233
5
4 Burr 2057: 98 E.R. 73
taken place. In a bigamy case, the second marriage as a fact, that is to say, the
ceremonies constituting it, must be proved”. [18]

The decision of Kanwal Ram’s case was reiterated by Hon’ble Supreme Court in
Priya Bala Ghosh v. Suresh Chandra Ghosh6. The Court held that “the
admission cannot in law be treated as evidence of the second marriage having
taken place in an adultery or bigamy case: and that in such cases it must be proved
by the prosecution that the second marriage as a fact has taken place after the
performance of the essential ceremonies.” Thus, even admission of second
marriage on part of the accused is not sufficient to prove the offence of bigamy.

Thus, the loophole in law has given the renegade spouse an easy escape route. This
disproportionate burden on the complainant spouse to prove the performance of
essential ceremonies is going to aggravate injustice and confusion in today’s
changing concept of marriage and growing prevalence of live-in relationship
among the millennials.

6
1971 AIR 1153
CONCLUSION and SUGGESTION

Law cannot remain static and must adapt itself to changes in society. Since the
Hon’ble Supreme Court has recognised the institution of live-in relationship, it is
necessary to amend bigamy and other laws and also to legislate upon the same so
as to clearly define the rights and duties of live-in partners. The requirement of
performance of essential ceremonies to prove valid marriage under Section 494 of
the Indian Penal Code should be relaxed and an amendment to the effect that
continuous cohabitation for a number of years will raise the presumption of
marriage will go a long way in securing justice to the wronged spouse. Hence,
even cohabitation with another person during the subsistence of first marriage
should be explicitly declared illegal.
BIBLIOGRAPHY

1. https://blog.ipleaders.in/position-bigamy-indian-law/#_ftn13
2. https://mylegalpartner.wordpress.com/2018/05/23/bhaurao-shankar-lokhande-v-state-of-
maharashtra/
3. https://www.delhilawacademy.com/sample-hindu-marriage-act-case-law/
4. https://indiankanoon.org/doc/1630427/