Dr.

Surajmani Stella Kujur vs Durga Charan Hansdah

Facts
Dr surjamani stella kujur of oraon tribe filed a case against her husband durga charan handshah who is
also of the same tribe. The plaintiff alleged of the breaking of law by the defendant through committing
of bigamy.
Bigamy is an offence under Indian penal code, 1860. Bigamy refers to an offence committed by the
person governed by hindu law who in continuance of first marriage, marries another women. therefore,
bigamy means marrying more than one woman during the sustenance of first marriage.
Arguments:
Plaintiff
Defendant has committed bigamy by marrying another woman from the tribe during the sustenance of
marriage with dr surjamani therefore, he should be punished.
Monogamy is the custom prevalent in the tribe. Custom being source of law, the custom of monogamy
has taken the force of law. therefore, if hindu marriage act does not apply to them then also, as per their
custom defendant has committed the offence.

Defendant
As per section 2(2) of hindu marriage act, 1955, certain tribal groups are expeemted from the purview
of hindu marriage act. Therefore, there are certain tribal groups on which hindu marriage act does not
apply. Oraon tribe is one of the tribes which comes under the ambit of section 2(2) hindu marriage act.
Therefore, hindu marriage act would not be applicable on the defendant.
According to section 3(a) of Hindu adoption and maintenance act, 1956,
the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly
observed for a long time, has obtained the force of law among Hindus in any local area, tribe,
community, group or family, Provided that the rule is certain and not unreasonable or opposed to public
policy and Provided further that, in the case of a rule applicable only to a family, it has not been
discontinued by the family.
Therefore, to categorize monogamy as a custom, it should be practiced for long time and it should be
clear and unambigious. there is no clear proof to adjudge monogamy as a custom. Hence, it could not
said to be custom.
One who alleges should proof. Therefore, it is the duty of plaintiff to prove monogamy as custom. As
no proof has been given so, no offence cn be committed.

Judgement
the tribe from which both party belong is a tribe which comes under the exception of Hindu marriage
act. So, custom and rules of their own tribe would be applicable on them. Since, no proof of monogamy
as a custom was given, it cannot be considered as a law. therefore, when bigamy is no offence then,
defendant cannot be made liable for something which is not an offence.
Critique
India is a diverse country where different individuals with different custom and religion resides
together. These individuals has been following their own custom from time immemorial. They have
been governed through different rules. Also, minority communities, scheduled tribes, are vulnerable
part of country. Preservation of culture is a fundamental right of every individual. Therefore, to preserve
their culture, there is need to recognize the values they attach to their custom. Also, it would lead to
chaos if every individual is asked to unfollow their custom and practices and adopt different ones.
Therefore, to avoid such situation it is necessary to recognize reasonable customs and practices.
Since, some customs can be absurd and could be contrary to public policy. Therefore, such customs at
the same time needs to be struck down. To maintain harmony between customs and laws adopted under
different laws and public conscience, every custom is put subject to the public policy and statute created
for the particular purpose. Hence, preservation of custom is necessary and at the same time it is
necessary to struck down obsolete and those custom which are contrary to public policy.

since, plaintiff and defendant belong to the tribe on which Hindu laws does not apply, therefore, it could
not be possible to convict the defendant for something which is not an offence as per their custom.
Also, bigamy is not something which is opposed to public policy since, Muslim law recognizes
polygamy as their custom and personal laws are something in which court does intervene much.
Therefore, since bigamy is not something which is opposed to public policy or any statute, judge is right
in its decision of not striking down the 2nd marriage.
Proving of custom is on someone who alleges it since, if court presume custom to there, then any person
would come and say anything as a custom which is not opposed to public policy then the case have to
judge on the basis of something which is not a law and judges could struck it down since it does not
oppose public policy.