A second marriage during the lifetime of a spouse is void under Section 17 of the Hindu Marriage Act, 1955, only if it was solemnized, meaning celebrated with proper ceremonies and in due form. The essential ceremonies required for a valid marriage under Hindu law, such as the invocation before the sacred fire and the taking of seven steps by the bridegroom and bride jointly before the sacred fire, must be performed.

RAGHUBAR DAYAL J. - Bhaurao Shankar Lokhande, appellant No. 1, was married to the complainant Indubai in about 1956. He married Kamalabai in February 1962, during the life -time of Indubai. Deorao shankar Lokhande, appellant No.2, is the brother of the first appellant. These two appellants together with Kamalabai and her father and accused No.5, a barber, were tried for an offence under section 494, Indian Penal Code. The latter three were acquitted by the Magistrate. Appellant No.1 was convicted under section 494, Indian Penal Code and appellant No.2 for an offence under section 494 read with section 114, Indian Penal Code. 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 Kamalabai 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 I and Kamalabai 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 Kamalabai was a valid marriage. It is also urged for the State that it is not necessary for the commission of the offence under section 494 ,Indian Penal Code that the second marriage be a valid one and that a person going through any form of marriage during the life -time of the first wife would commit the offence under section 494, Indian Penal Code even if the later marriage be void according to the law applicable to that person. Section 494, Indian Penal Code 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 means 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.

3. A part 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 life -time 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 commencement 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 sections 494 and 495, Indian Penal Code shall apply accordingly. The marriage between two Hindus is void in view of section 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either part