A marriage is solemnized only if it is celebrated with proper ceremonies and in due form, according to the law applicable to the parties or the custom prevalent in their community.

Judgment

RAGHUBAR DAYAL, J.: 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.

4. Apart from these considerations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the Hindu Marriage Act of 1955, which made a second marriage of a male Hindu, during the lifetime of his previous wife, void. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that Section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemnized after the commenegment of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of Ss. 494 and 495, I.P.C. shall apply accordingly. The marriage between two Hindus is void in view of S. 17 if two conditions arc satisfied: (i)the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962