IMPORTANT POINT
Where parties are Tribal Hindus but governed by their Tribal customs and wage in the matters of marriages mere alleged custom in the Tribe which mandates monogamy as a rule is not sufficient to convict a person for bigamy under Section 494 IPC unless there is specific pleading, evidence and proof of the alleged custom making the second marriage void during the subsistance of first marriage.

Headnote:Indian Penal Code, 1860-Section 494-Offence of Bigamy-Parties are two tribals, who otherwise profess Hinduism but are not Hindus under Hindu Marriage Act, 1955-Marriage between them governed by their Santhal Customs and Usage-Appellant alleging custom of monogamy but no customs prohibiting the solemnisation of second marriage-Alleging that respondent has solemnised second marriage with Accused No. 2-Whether makes the offence under Section 494 IPC-Courts below holding in the negative-Whether correct it? (Yes) (Cross Ref : Hindu Marriage Act, 1955-Sections 2, 3, 10 to 13 and 29-Applicability of Act to Hindus and saving validity of a marriage in contravention by any customs-Constitution of India-Articles 13(3), 20, 342, 366-Meaning of Law, meaning of deemed to be Hindu and Protection against conviction-General clauses Act, 1897-Section 3(37)-Meaning of offence custom as source of law explained-Case law referred.
       Held : The appellant has, however, relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. (Para 7)
       No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status, the establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the General Clauses Act, would mean an act or omission punishable by any law by way of fine or imprisonment. (Para 8)
       For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. (Para 10)
       Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non-est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability. (Para 14)
       In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution as notified by the Constitution (Scheduled Tribes) Order, 1950 as amended by Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990 passed in terms of Article 342 and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant. (Para 15)
       Held finally there is no merit in this appeal which is accordingly dismissed. (Para 17)

JUDGMENT

Sethi, J.-Leave granted.

2. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act")? is a question of law to be determined in this appeal.

3. Section 2 of the Act specifies the persons to whom the Act is applicable. Clauses (a), (b) and (c) of sub-section (1) of Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj and to persons who is a Buddhist, Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion. The applicability of the Act is, therefore, comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by religion.

4. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors.1 Calcutta Series observed :

"We shall not attempt here to lay down a general definition of what is meant by the term `Hindu , to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private workship. Its social code is much more stringent, but amongsts its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism, but who eat beef and the flesh of dead animals, are however low in the scale included within its pale. It is easier to say who are not Hindus, not practically and separation of Hindus from non-Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not."

5. The Act, is, therefore, applicable to :

"(1) All Hindus including a Virashaiva, a Lingayat, a Bramhmo, Prarthana Samajist and an Arya Samajist.

(2) Budhists

(3) Jains

(4) Sikhs."

6. In this appeal the parties are admittedly tribals, the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution, the Act can be applied to Scheduled Tribes as well by a further notification in terms of sub-section (2) of Section 2 of the Act. It is not disputed before us that in the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990, both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage".

7. The appellant has, however, relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code.

8. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status, the establish

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2001 Supreme(SC) 278

Cases Referred (1)