Case Summary
Keywords Tribal customs vs HMA IPC 494 Second Marriage. Sine Qua Non
Facts The parties were admittedly Tribals (the appellant being a Oraon and the respondent is a Santhal) and they were practicing Hinduism. Their marriage being out of the purview of Hindu Marriage Act, 1955 in view of section 2(2) of the Act 89. Marriage was governed by Santhal tribal customs and usage. The appellant wife’s made an appeal that the her husband had solemnized a second marriage during the subsistence of the first marriage with her, and the second marriage being void, he is liable to be prosecuted for the offence of bigamy punishable under section 494 of the Indian Penal Code, 1860.
The wife relied upon an alleged custom of the tribe, which mandates monogamy as a rule. However, nowhere in the complaint did she refer to any alleged custom having the force of law, which prohibits the solemnization of second marriage by the respondent.
Issues Whether under the customary law which governed the parties to the marriage, is bigamy an offence or not?
Contentions and Judgement
The court held that mere pleading of a custom enjoining monogamy is not enough unless, it is further established that the second marriage was void by reason of its having taken place during the subsistence of an earlier marriage.
In order to prove that the second marriage was void, the complainant is 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, Indian Penal Code, 1860.
It is significant to note that for a custom or usage to have the force of law, it is necessary that the party relying on it must prove that such custom is ancient, certain and reasonable; and not opposed to public policy.
It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime, which is normally and usually defined by a statute. The complainant could not prove any such custom.
Case Authority
The marriage between two members of Scheduled Tribe is not governed by Hindu Marriage Act in the light of section 2(2). Rather their marriage would be governed only by their own custom (In this case Sanhtal) and usage.
