AIR 2001 SC 938
Facts: In this appeal the parties are admittedly tribals, the appellant being a Oraon and the respondent a Santhal.
It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code.
In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate, New Delhi stating therein that her marriage was solemnised with the respondent in Delhi “according to Hindu rites and customs”. Alleging that the respondent has solemnised another marriage with the Accused No.2, the complainant pleaded: “That the accused No.1 has not obtained any divorce through the Court of Law up to this date and hence the action of the accused No.1 is illegal and contravenes the provision of law as laid down under Section 494 IPC.”
Issue: Who is a “Hindu” for the purpose of the applicability of the Hindu Marriage Act, 1955 (“the Act”)?
R. P. SETHI, J –
Section 2 of the Act specifies the persons to whom the Act is applicable. Clauses (a), (b) and (c) of Sub-section (1) of Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments.
The Act is applicable to: “(1) All Hindus including a Virashaiva, a Lingayat, a Brahmo, Prarthana Samajist and an Arya Samajist. (2) Budhists (3) Jains (4) Sikhs”
It is also applicable to any other person domiciled in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion.
The expression “custom and usage” has been defined under Section 3(a) of the Act as: “the expression ‘custom’ and ‘usage’ and 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:
Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.”
In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya, [14 Moo. Ind. App. 570 at p.585] held: “It is of the essence of special usage 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. It is only by means of such evidence that the courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.”
R. P. SETHI, J –
In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution, the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub-section (2) of Section 2 of the Act. It is not disputed before us that in the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990, both the Tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that “the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage”.
Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non est . The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC.
The complaint was dismissed by the trial court holding, “there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient”.