Facts: appellant filed the case against her husband (respondent) of bigamy. Both the appellant and respondent belong from ST. He performed the marriage under santhal culture.
Issue: 1. Hindu marriage act is applicable or not?
2. Whether the offence of bigamy is committed by the party or not?
- Section 2 of Hindu marriage act deals with the applicability.
- Under sub section 2 of section 2, it is clearly mentioned that without notification from central government in official gazette Hindu marriage act not applicable to ST.
- Bigamy is custom in their community contended by respondent.
- But monogamy is the ancient custom which is followed in Santhal trible. So appellant need to prove the custom with clear evidence.
- Custom defined under section 3(1) of Hindu marriage act.
The plea is dismissed by the court. The court held that the marriage did not come under the Hindu marriage act as the appellant is failed in proving the custom.
CASE 12: BHAURAO SHANKAR LOKHANDE VS. STATE OF MAHARASTRA
Facts: Bhaurao (appellant) married indubai (complainant) in 1956later married to kamlabai in 1962. Bhaurao and kamlabai marriage takes place under gandharva form of marriage.
Issue: 1. whether second marriage performed by the appellant is valid or not?
2. Whether the offence of bigamy is committed or not?
- Prosecution needs to prove that second marriage is a valid marriage for making appellant liable of bigamy.
- For this we need to check all the rituals must take place.
- But prosecution failed to do so.
- Second marriage is neither a valid marriage nor contravention to section 5(1) and hence punishment under section 17 can’t apply to appellant.
- Under section 5(1) second marriage is void when first marriage is subsisting punishable under section 17 punishment for bigamy.