Order.-These eight petitions have been posted before us as they raise the important question of the validity of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, Madras Act VI of 1949 (hereinafter called the Act). The Act came into force on the 29th March, 1949, before the Constitution of India came into force. In five of the petitions, the marriages in question were performed before the Constitution came into force. Crl.R.C.Nos.713 and 1431 of 1950, relate to the same marriage and Crl.R.C.Nos.506 and 1481 of 1950 and Crl.M.P.No.157 of 1951 are petitions relating to marriages performed before the Constitution of India came into force. In Crl.R.C.No.592 of 1951 and Cr.M.P.No.223 and 1099 of 1951 the alleged marriages were after the Constitution of India came into force. In all these cases, criminal proceedings were initiated for an offence under section 494, Indian Penal Code, read with section 4(2) of the Act. In some of the cases proceedings were taken for the abetment of the offences against the abettors. Under section 494, Indian Penal Code:

“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.”

The section does not in terms declare the second marriage void; but if under the law to which the parties are subject, the second marriage is prohibited and is therefore void, the person contracting second marriage which is performed notwithstanding the prohibition of the law to which the parties are subject, will be guilty of an offence punishable under section 494, Indian Penal Code. In order therefore to determine whether the second marriage is void or not by reason of its taking place when such husband or wife is alive, one has necessarily to look to the law to which the parties are subject. Under the personal law governing the Hindus and the personal law governing the Mahomedans, the second marriage is not void by reason of its taking place during the life of a wife. Therefore, a second marriage could be contracted with impunity under the personal law governed the Hindus and Mahomedans. The Act was placed on the Statute Book with the object of prohibiting bigamous marriages among, as the preamble shows, and to provide for a right to divorce for, Hindus in the Province of Madras. Section 2(1) defines “Hindu” as meaning:

“(a) a person professing the Hindu religion in any of its forms or developments, including a Virashaiva or Lingayat or a member of the Brahmo, Prarthana or Arya Samaj or

(b) a person professing the Buddhist, Jaina or Sikh religion.”

The other parts of the section not being relevant need not be quoted. The Act is made applicable by section 3 to Hindus domiciled in the Province of Madras and the Explanation to that section states that the Act shall also apply if either of the parties to the marriage was a Hindu domiciled in the Province of Madras. Section 4 declares bigamy to be void and makes it punishable. Sub-section (1) to section 4 runs thus:

“Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of this Act between a man and a woman either of whom has a spouse living at the time of such solemnization shall be void, whether the marriage is solemnized within or outside the Province of Madras.”

Omitting the proviso and the Explanation to this sub-section, there is sub-section (2) which is relevant and which states:

“If a party to a marriage which is void under sub-section (1) has completed eighteen years of age at the time of the solemnization of such marriage, he or she shall be deemed to have committed an offence under section 494, or section 495, Indian Penal Code, as the case may be”

The effect of the sub-section (1) is undoubtedly to modify that part of the personal law of Hindus relating to marriage which

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