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What is the meaning of solemnization of marriage for application of Section 17 of HMA,1955

Parul Dhingra ,
  10 September 2020       Share Bookmark

Court :
Supreme Court of India
Brief :
The Supreme Court allowed the appeal. The essential ceremonies required for the valid marriage under the custom were not performed for the second marriage.
Citation :
Appellant : Bhaurao Shankar Lokhande & Anr. Respondent : State Of Maharashtra & Anr. Citation : AIR 1965 SC 1564 

Bench:

Justice Raghubar Dayal, Justice J.R. Mudholkar, Justice V. Ramaswami

Issue:

What is the meaning of solemnization of marriage for application of Section 17 of HMA,1955?

Facts:

  • The appellant married the complainant Indubai in 1956 and thereafter married Kamlabai in 1962 during the lifetime of his first wife.
  • The Magistrate convicted him under Section 494 IPC. Appeal to Sessions Judge & HC was dismissed.
  • Thereafter, appeal by special leave was filed in SC.

Appellant's contentions:

· It was contended that essential ceremonies for marriage were not performed when he married Kamlabai. For prosecution, a marriage has to be performed in accordance to the rites which has not happened in the present case.

Respondent's contentions:

· It was contended that the second marriage took place in accordance to the custom prevalent in society of appellant for Gandharva form of marriage and therefore is valid. Also, under Sec 494 IPC, mere commission of offence is necessary during lifetime of other spouse even if the second marriage is valid or not.

Judgement:

The Supreme Court allowed the appeal. The essential ceremonies required for the valid marriage under the custom were not performed for the second marriage. Therefore, the marriage cannot be treated as solemnized marriage for prosecution as per Section 17 of Hindu Marriage Act, 1955 & IPC.

"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 IPC 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 party had a spouse living. It is therefore essential, for the purpose of Section 17 of the Act, that the marriage to which Section 494 IPC applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form."

- Para 4 (Bhaurao Shankar Lokhande & Anr. v. State Of Maharashtra & Anr.)

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Published in Constitutional Law
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