SURAJMANI STELLA KUJUR V.

DURGA CHARAN HANSDAH

CITATION: 2001 AIR (SC) 938

Relating to: Bigamy; Applicability of S. 2(2) of Hindu Marriage Act, 1955

FACTS

• Durga Charan Hansdah, defendant here and Dr. Surajmani Stella Kujur, the complainant
was a husband and wife, from well-known tribal communities, namely Oraon and later
Santhal.

• Interracial marriage is dissolved in Hindu culture and traditions.

• The defendant wanted to prosecute her husband, who is facing a serious criminal offense
under section 494 of the Indian Penal Code 1, 1860, as she was married to another during her
lifetime.

ISSUES

1. Who is the "Hindu" for the purposes of the Hindu Marriage Act, 1955 (the “Act”)?

2. Was the second marriage consolidated by the defendant in vain because of the culture and
use of the nation?

COMPLAINANT CONTENTION

• The parties otherwise claim to be Hindu but in terms of section 2 (2) of the Act, do not
apply to them. Therefore, they are controlled only by Santhal culture and use.

• One person is authorized and obtains a cultural status in his or her country.

• Her husband's second marriage was annulled because it took place during his lifetime and
he is responsible for prosecution under Section 494 IPC

BACKGROUND:

The complaint was first filed by the plaintiff in the Criminal Court alleging that his marriage
was consolidated with the defendant in Delhi "according to Hindu customs and traditions".
Suspecting that the defendant had conspired to marry another 2, the plaintiff pleaded: “The

1
Bigamy [S. 494 IPC, S. 17 Hindu Marriage Act] - SCC Online Blogs Published on October 19, 2016
fact that defendant No.1 has not received a divorce by the Court of Law has so far is why
defendant No.1 is alleged to be unlawful and violates the provisions of the law as set out
under Section 494 IPC. ”Which he rejected with the intention that the tradition of the second
marriage could not be persuaded or proved. Distracted the Appellant went to the High Court
which upheld the decision of the Tribunal. Finally, the case came up with a Supreme Court
ruling

JUDICAL APPROACH:

The Court reiterated Section 2 of the Act to give effect. Subsections (a), (b) and (C) of
subsection (1) of Section 2 give this Act to a religious Hindu person of any kind or
development.

The Supreme Court dismissed an application to determine that a customary law on human
rights and a violation of custom would not be a criminal offense without a violation of the
law applicable at the time of the trial.

In the present case the Court concluded that the Appellant had failed to prove the existence of
a valid custom that made a second marriage void and void and that since the second marriage
was not a fourth qua non-applicable section 494 IPC, no case could be made against the
Respondent

ANALYSIS

Section 2 of the Act defines the persons to whom the law applies. Subsections (a), (b) and (c)
of subsection (1) of Section 2 apply this Act to a religious Hindu person in any form or
development including Veerashaiva Lingayat or a follower of Brahmo, Prarthana or Arya
Samaj and to a Buddhist, Jain or Sikh religion. It also applies to any other person held in the
Indian subcontinent who is not a Muslim, Christian, Persian or Jew by religion. The
application of this Act is, therefore, complete and applicable to all persons controlled in the
Indian subcontinent who are not Muslims, Christians, Parsis or Jews religiously.

The term "Hindu" is not defined under the Act or in the Indian Succession Act or in any other
legislature.

In this transfer the parties are admitted to be national, the defendant being Oraon and the
defendant being Santhal. It is undeniable in our eyes that in the Constitution (Organized
Strategy), 1950 as amended from time to time both nations are subordinate to the parties to
their jurisdiction in section XII. It is permissible even for an appellant to claim that the parties
to the appeal are two states, professing to be Hindu, but their marriage is outside the Hindu
Act, 1955 in terms of section 2 (2) of the Act, thus governing their Salhal customs and their
application. "

The opposition, however, relied on a national policy that allegedly authorized monogamy. It
is stated that since the defendant instituted a second marriage at the time of the first marriage
with the applicant, the second marriage is void, the defendant is liable to prosecute for a
crime punishable under Section 494 of the Indian Penal Code.

No tradition can create a crime because it is actually against the civil rights of the parties and
no one can be convicted without breaking the law that was in force at the time of the
enactment of the law. Culture may be construed in the determination of the civil rights of the
parties, including their status, and their establishment may be used for the purposes of
proving the case, under Section 3 [37) of the General Clauses Act, which may mean an act or
failure to be punished by any law. Article 20 of the Constitution states that no one shall be
held guilty of any penal offense on account of any act or omission which did not constitute a
penal offense, under national or international law, at the time when it was committed.

The term “customs and practices is defined under Section 3 (a) of the Act as2:

3 (a) the term 'custom' and 'application' means any law which has been consistently and
equitably retained by the law among the Hindus in any local area, community, group or
family.

Provided that the law is valid and unreasonable or not in line with public policy: Provided
that if in the case of a law that applies only to the family you have not been dissolved. For a
culture to have the colour of law or order, it is necessary for the party that seeks it, to
persuade and thereafter to prove that that tradition is an ancient and plausible tradition that
violates the general law needs to be taken seriously. A group that relies on culture is obliged
to establish it with clear and unambiguous evidence. The plaintiff filed a complaint in the

2
https://www.indiacode.nic.in/handle/123456789/1560?locale=en, The Hindu Marriage Act, 1955.
Chief Metropolitan Magistrate's Court, New Delhi stating that his marriage was validated by
the defendant in Delhi "according to Hindu customs and traditions."

There is no place in this appeal where the appellant refers to any custom that is alleged to
have legal force prohibiting the suspension of a second marriage by the respondent and its
consequences. It can be argued that simply pleading for a man who was in solitary
confinement was not enough without arguing that the second marriage was invalid because it
took place during the lifetime of such a man or woman. In order to prove that a second
marriage is void, the applicant was subject to an obligation to show the existence of a culture
that makes that marriage ineffective, without legal force or binding effect, unenforceable or
unenforceable. The fact that the second marriage is empty is a non-applicable sine qua of
Section 494 IPC. It is an established law that to prosecute a criminal case, the prosecutor or
plaintiff is obliged to prove the existence of all the elements that constitute a crime that is
common and defined by law. The opponent himself appears to be unclear about his position
as in a court statement dated 24-10-1992 he said "I am a Hindu by religion. The appeal was
dismissed by the first court holding that there is no mention of any such custom in the appeal
and there is no evidence of that custom. The High Court has ruled that in the absence of a
notice in terms of section 2 (2) of the Act, there may be no prosecution of a serious crime
against a defendant because a second marriage is alleged to be invalid under the Act or in any
customary law.

Because the parties to the claim are of the Indigenous People and in the absence of any
pleading, evidence and procedural evidence that is alleged to invalidate a second marriage, no
offense under Section 494 of the Indian Penal Code may be challenged by the defendant.

APPROACH OF LEGISLATURE

PROOF OF CUSTOM 

The custom will be established as a law binding on Hindus and it is necessary for their
existence to be proved in court. First it must complete all the legal requirements for a valid
procedure. A party claiming that there is a custom in court must, by ordinary evidence, prove
that it exists and is consistently followed by the public and such evidence of custom will
make it a lawful and binding law in the community.
Case: Kesarbai v. Indarsingh3
In this case the court held that even the decision of such customs could be presented in court
as evidence of the existence of this custom in support of the establishment of that custom and
its acceptance in the eyes of the law.

The burden of proof / Onus of evidence

The person who confirms the establishment of the customary law must prove that the custom
exists and therefore the burden of proof rests on that person.

Case: Harihar Prasad Singh V. Balmiki Prasad Singh4

In this case the Supreme Court held that the burden of proof lay with the person claiming to
exist and that person must show that the culture is effective enough to be established contrary
to the rules. In the event that a person demands the termination of any custom, and such
responsibility rests with that person to prove that he or she has reasonable grounds for
discontinuing the practice.

If the culture is well established and it is very clear what the Court cares for and has
repeatedly brought before the Court on various charges. Such customs do not need to be
proved but must be established and accepted by the Court without evidence. It is not
necessary to testify in each case for various actions or actions and the burden of proof lies
with the individual. Such customs are considered part of general law.
In the case of Rabindra Nath v State5, in 1969 Cal 58, the Supreme Court of Calcutta
reaffirmed that if the customary ceremony was more common on each side, its operation
would be sufficient for the legality of the marriage. Traditional festivals may not include any
of the shastric festivals. When rituals and ceremonies include a saptpadi (taking the seven
steps of the bride and groom together in a holy fire), the marriage ends and is bound by the
taking of the seventh step. Saptpadi is a shastric festival and is not essential for all Hindu
marriages. There may be a cultural event.

3
Privy Council appeal No. 30 of 1943
4
1975 AIR 733, 1975 SCR (2) 932
5
1969 Cal 58
APPLICATION OF HINDU MARRIAGE LAW
This Act applies to all forms of Hinduism (for example, to a person who is Virashaiva,
Lingayat or a follower of Brahmo, Prarthana or AryaSamam) and also recognizes the
branches of the Hindu religion as defined in Article 44 of the Indian Constitution.
Significantly, this includes Jains and Buddhists. This Act also applies to anyone permanently
living in India who is not a Muslim, Jew, Christian, or Religious Persian. Although the Act
originally applied to Sikhs, the AnandKarj Marriage Act gives Sikhs their marriage law.

Article 5
The parties must be Hindus under Section 2 (3) of the Hindu Marriage Act. According to this
section both parties to a marriage under the Act must be Hindus. If one of them is a Hindu
and the other is not a Hindu or both are not Hindus, marriage will not be a matter of this Act
but will relate to another law which is the Special Marriage Act etc.
Clause (i) - Cohabitation this state means that one person must be polygamous. The phrase
“no one has a living partner” implies that one's mate should not be living at the time of the
marriage. If the partner is still alive during the marriage, it can prevent the person from
remarrying. However one should note that a person's first marriage should be a legal
marriage. Except in the case of a valid marriage if a person remarries in violation of Section 5
(i), the second marriage will be null and void and will suffer the consequences of the penalty.
The United Nations is exempt from the application of the Law. But there must be a proven
process in this regard.

Essentials of Valid Custom:

 In Hurpurshad v. Sheo Dayal (1876, 3 I.A. 259), the Privy Council observed that “a
custom is a rule which, in a particular family, or a particular caste or community, or in
a particular district, has from long usage obtained the force of law. 
 It must be ancient, certain and reasonable”. Moreover, such a custom must not be
immoral, or opposed to public policy, or expressly forbidden by law.
 On this point, the Privy Council has observed: “Their Lordships are fully sensible of
the importance and justice of giving effect to long established usages existing in
particular districts and families in India, but it is of the essence of special usages,
modifying the ordinary law of succession that they should be ancient and invariable,
 and it is further essential that they should be established to be so by clear and
unambiguous evidence.”

Essentials of a Valid ‘Custom’ under Hindu Law:

The following are the 8 essentials of a valid custom:

1. Ancient,
2. Invariability and continuity,
3. Reasonableness,
4. Clarity and unambiguity,
5. Not opposed to morality or public policy.
6. Not opposed to express provisions of law,
7. Onus.
8. Judicial notice of a custom.

SUGGESTIONS
Laws are still long overdue for gender justice. Another issue that often arises is stress over
events. Under Hindu law, it is by making a pact and procedure required that the status of the
husband and wife are not granted, and if this is not done, the marriage is void and void
(unless the custom allows it). An important Hindu community festival - is it saptapadi,
kanyadana, homa, thali-tying, vermillion, flower exchange or rings, pad-puja, panigrahanika,
or marriage with a sword? These customs and celebrations vary from place to place and from
community to community.

According to the Hindu Marriage Act, 1955, any party involved must perform rituals and
rituals or that the two essentials of the marriage ceremony have been completed, namely, the
intercession of the holy fire and the satapapadi (seven steps around the sacred fire). The
responsibility for proving the culture rests with the user group. This is confusing and
complicated. Most women do not know about the ceremonies that work for them. She can
happily exchange flowers, put on vermillion and make her husband proclaim his wife and
God as a witness, without realizing that this is not a legal marriage because these are just fun
jokes! This unnecessary pressure on festivals has allowed many suspected victims to attend.
Many bigamy prosecutions fail because of a lack of evidence that a second marriage is bound
by the required rites and ceremonies. To keep the charge under section 494 IPC, there must
be evidence of this, the first women who found it difficult to produce. These official positions
are used by men to protect themselves, in cases where they have cheated on women in second
marriages. The very requirement for monogamy is reduced. While Hindu marriage is a
sacrament and ceremonies are not important, a single, simple ceremony understood by all
may be desirable, to avoid such dangers. Additional ceremonies, of course, can be voluntarily
followed.