Bhaurao Shankar Lokhande v. State of Maharashtra (1965)

Monogamy is the first wife's principal statutory protection: a second marriage during her lifetime is void, and the husband is punishable. This decision explains why that protection so often fails in practice. Because the penal offence requires a second marriage that is valid in form, a husband who takes a second woman without performing the essential ceremonies escapes conviction altogether, even though everyone treats the two as married. It is the leading authority on the word "solemnized", and the starting point for every criticism of the bigamy remedy in this paper.

The first appellant married the complainant in about 1956. In February 1962, during her lifetime, he married another woman. He, his brother, the second woman, her father and a barber were tried for bigamy and abetment. The last three were acquitted by the Magistrate; the first appellant was convicted of bigamy and his brother of abetting it. The Sessions Judge dismissed their appeal and the High Court dismissed their revision.

What happened on the night of the second marriage was deposed to by the complainant's witnesses: wooden seats were brought and a carpet spread; the man and the woman sat on the seats; a worship was performed with a pitcher, betel leaves and a coconut; two garlands were brought and the couple garlanded each other and then touched each other's foreheads. The witnesses said that in their community no temple, no Brahmin priest, no chanting and no barber were necessary for this form of marriage, and one said that the custom was for the girl's father to make the two foreheads touch, which completed the ceremony. Another witness said that only about five or seven years earlier the priest, the barber and the chanting had still been essential and had since been given up.

The conviction could not stand. The prosecution had failed to establish that the second marriage was performed in accordance with the customary rites required by the Act, and it was certainly not performed in accordance with the essential requirements of a valid Hindu marriage. The marriage therefore was not "solemnized", was not void under the Act, and the penal provision did not apply.

1. The offence requires a valid second marriage. The words of the offence — whoever marries — prima facie mean whoever marries validly. If the marriage is not valid according to the law applicable to the parties, no question of its being void by reason of a living spouse arises; it is no marriage in the eye of law. And the bare fact of a man and a woman living as husband and wife does not normally give them that status, even though they hold themselves out as married and society treats them as married.

1. Trace the chain of provisions. Before the Act, nothing in Hindu law made a male Hindu's second marriage void. The Act now requires, as a condition of a valid marriage, that neither party has a spouse living, and provides that a marriage solemnized after the commencement of the Act is void if either party then had a spouse living, the penal provisions applying accordingly. So the penal provision is reached only through the word "solemnized".

1. Define "solemnized". To solemnize a marriage is to celebrate it with proper ceremonies and in due form. Unless the marriage is celebrated or performed with proper ceremonies and in due form it is not solemnized. Merely going through certain ceremonies with the intention that the parties be taken to be married will not make them ceremonies prescribed by law or approved by any established custom.

1. Identify the essential ceremonies. Two ceremonies are essential to the validity of a marriage: invocation before the sacred fire, and saptapadi — the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. A marriage may be completed by other ceremonies where the custom of the caste allows it. The essential ceremonies are as much a requisite part of the gandharva form as of any other unless a modification by custom in the particular community or caste is shown.

1. Custom must be proved, and proved as custom. It was not disputed that the two essential ceremonies were not performed. There was no evidence at all of what the custom was; the prosecution proved only what was done on the night. Answers extracted in cross-examination that a priest or chanting was "not necessary" do not show that the community's custom had abrogated the essential ceremonies. Definite evidence was required. Nor can a statement that touching foreheads completes the ceremony be read, without more, as a statement that those were the only ceremonies the custom required.

1. A recent departure is not a custom. Custom and usage under the Act mean a rule continuously and uniformly observed for a long time so as to obtain the force of law. A practice given up only five or seven years earlier cannot be a custom in that sense.

It opens the ceremonies question under the Act — invocation before the sacred fire and saptapadi as the essentials, and custom as the only route around them, to be pleaded and proved strictly. It is equally the authority for the critique: a legally married wife whose husband keeps a second household often has no criminal remedy, because the very informality of the second union defeats the prosecution.

It disposes of the argument that living openly as husband and wife, or going through a garlanding with the intention of being married, is enough to make out the offence.

It does not decide that the second wife or her children are without remedy, and it does not touch the wife's civil remedies, which do not depend on proving the second marriage valid. Read it against the case where a State amendment supplied a simpler statutory form of marriage and the conviction followed, and against the decisions on conversion and bigamy, which attack the same evasion from the other side.