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Citation: 2001 AIR (SC) 938

Relating to: Bigamy; Applicability of S. 2(2) of Hindu Marriage Act, 1955

PRINCIPLE
In view of S. 2(2) of the Hindu Marriage Act, 1955, Scheduled Tribes are outside the
purview of the Act unless a notification to the contrary is issued; otherwise they would
be governed by their customs, which must be proven with clear evidence.

FACTS
An Oraon tribal girl (Dr. Surajmani Stella Kujur) sought the prosecution of her Santhal
husband (Durga Charan Hansdah) on charges of bigamy, i.e. solemnizing a second
marriage during the subsistence of the first, under S. 494 of the Indian Penal Code.
She contended that even if their marriage was not governed by the Hindu Marriage
Act, the practice of monogamy was granted the status of a custom in her tribe.

OBSERVATIONS AND DECISION


The Court rejected her plea, stating 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 the violation of law in force at the time of commission of the act charged.

The Court observed: For custom to have the colour of a rule of law, it is necessary for
the party claiming it to plead and thereafter prove that such custom is ancient, certain
and reasonable.

In other words, the Court established that there has to be the existence of clear and
unambiguous evidence for a custom to be given the force of law.

The bench emphasized that mere pleading of a custom alleging monogamy was, by
itself, not sufficient unless it was pleaded that the second marriage was void by reason
of its taking place during the life of such husband or wife.
Therefore, in absence of specific pleadings, evidence and proof of the alleged custom
making the second marriage void, the Court held that no offence under S. 494 of IPC
could be made out against the respondent.

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. 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 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.

No custom can create an offence as it essentially deals with civil rights of


the parties
Monogamy is a form of relationship in which an individual has only one partner
during his or her lifetime or at any one time