Dr. Surajmani Stella Kujur v. Durga Charan Hansdah (2001)

The statutory protection of monogamy does not reach every woman in India. This decision marks the boundary: a tribal woman whose marriage is outside the Act cannot use the Act's monogamy rule, and must prove a custom of her tribe that makes the second marriage void before the criminal law will move. It is the case to cite on the unevenness of personal law and on the practical burden that unevenness places on the woman.

Both parties were tribals — the appellant an Oraon, the respondent a Santhal. Both tribes are specified in the Scheduled Tribes Order. The appellant complained to a Magistrate in Delhi that her marriage had been solemnized with the respondent according to Hindu rites and customs, that he had since married another woman without obtaining any divorce, and that he was therefore liable for bigamy. She pleaded a custom of the tribe mandating monogamy as a rule.

Her own position was conceded to be that the parties, though professing Hinduism, were outside the purview of the Act because of the provision excluding Scheduled Tribes unless the Central Government directs otherwise, and were governed only by their tribal customs and usage. In her own evidence in court she had stated that she was a Hindu by religion.

The trial court dismissed the complaint, holding that no such custom was mentioned in the complaint and no evidence of it was led, and that in the absence of pleadings and evidence, reference to a book alone is not sufficient. The High Court held that in the absence of a notification bringing the tribes within the Act, no case of bigamy was made out because the second marriage could not be called void either under the Act or under any custom having the force of law.

The appeal was dismissed. The parties being Scheduled Tribes, and there being no specific pleading, evidence or proof of a custom making the second marriage void, no offence of bigamy could be made out.

1. Fix the Act's reach. The Act applies to a Hindu by religion in any of its forms or developments, and to Buddhists, Jains and Sikhs, and to any other person domiciled in India who is not a Muslim, Christian, Parsi or Jew by religion. Its application is comprehensive in that sense. The term "Hindu" is defined in neither this Act nor the succession law nor any other enactment; the Privy Council long ago declined to attempt a general definition, observing that it is easier to say who are not Hindus.

1. But the tribal exclusion is separate. In the absence of a notification under the constitutional provision on Scheduled Tribes, such persons are deemed to be Hindus; and even where a notification exists, the Act can be applied to Scheduled Tribes only by a further notification under the Act. No such notification covered these parties.

1. Custom cannot create an offence. Custom deals essentially with the civil rights of the parties, and no person may be convicted of an offence except for the violation of a law in force at the time of the act. Custom may be proved to determine civil rights including status, and that status may then be used to prove an ingredient of an offence — but the offence itself must come from law.

1. Custom has a statutory definition and a strict standard of proof. Custom and usage mean a rule continuously and uniformly observed for a long time so as to obtain the force of law among Hindus in any local area, tribe, community, group or family, provided it is certain and not unreasonable or opposed to public policy. A party claiming custom must plead and prove that it is ancient, certain and reasonable; custom being in derogation of the general rule is construed strictly, and must be established by clear and unambiguous evidence. Special usages modifying the ordinary law must be ancient and invariable and proved to be so.

1. Pleading monogamy is not enough. Merely pleading a custom stressing monogamy was insufficient. To make out the offence the appellant had to plead and prove a custom making the second marriage null and of no force or binding effect — the second marriage being void is a sine qua non of the offence, and for criminal liability the complainant must prove every ingredient.

1. Her own case was inconsistent. She had pleaded that she was outside the Act and governed by tribal custom, yet had deposed in court that she was a Hindu by religion, and her complaint referred to no custom at all.

It opens the question of who the personal-law protections of women actually cover, and the related question of what a woman must prove when she relies on custom. Use the three-step method: is the Act applicable to these parties; if not, is there a custom; and does that custom make the second marriage void, not merely irregular.

It disposes of the assumption that the statutory rule of monogamy protects every woman in India, and the shortcut of proving a custom out of a textbook.

It does not decide that the appellant had no remedy at all — it decides only that the criminal complaint failed for want of pleading and proof, and it says in terms that custom may still be proved to determine civil rights and status. Nor does it hold that the tribes in question have no custom of monogamy; it holds that none was pleaded or proved here. Read it with the cases on conversion and bigamy, which show the courts closing a different evasion.