Smt. Shakuntala vs Nilkanth and other

B.A. Masodkar, J.—The unsuccessful appellant-complainant seeking the conviction u/s 496, Indian Penal Code, of her husband one Nilkantha-respondent No. 1 herein has appealed by leave to set aside the judgment of acquittal recorded by the Judicial Magistrate, First Glass, Sakoli.

The said Court has considered the evidence and has held that the marriage alleged by the complainant is not a valid one and, therefore, does not furnish her any ground to lodge such a prosecution. The Court has observed that there is no evidence absolutely as to the conversion of the complainant, or that of her spouse to the tenets of the Budhism and, therefore, the alleged form of marriage could not lead to the conclusion that there had been a legal and valid marriage between the complainant and the accused No. 1. On that view, he acquitted the accused.

The learned advocate argues that the evidence on record indicates that a proper marriage had taken place between the parties. It is no doubt true, according to him, that the form of marriage spoken to by the complainant was according to Budhist belief- He concedes that there is no evidence that either of the spouse to this marriage was a Budhist.

Further it is argued that the Courts should take into account the fact that several persons from the backward classes of Hinduism have now embraced Budhism under the leadership of late Dr. Ambedkar. Several such persons have married by Budhist system Such marriages, therefore, should be recognised as a part of the custom adopted by large section of the people under the Hindu Law.

The complainant has herself examined at Exh. 15. She says that she and the accused Njlkanth were married as per the new Budhist system. Thereafter Nilkantha has married the accused No. 2 Manabai. She states that she was beaten and tortured. In the cross-examination, she admits that Budha marriages are being solemnised for 10 to 15 years. She herself embraced Budhism after the marriage. She does not know if at all her husband, i. e. accused Nilkantha was converted to Budhism. As to the form of marriage by which she got herself married with Nilkantha, she states that there was amending and bride and bride-groom sat facing each other on two sides of a table. The boys of her place were present. They asked them to take an oath under the name of Budha. The bride-groom first took the oath and then the bride. The boys administered the oath. Clothes were exchanged and the presents were given. Thereafter there was a feast. She is ignorant about the rituals and ceremonies of the Budhist marriage.

This is all the evidence on record relating to the solemnisation of the marriage of the complainant with the accused Nilkantha. This clearly shows that the marriage was not according to any known custom or rituals sanctioned by the Hindu Law. It was a simple ceremony wherein the two consenting parties took an oath to be the husband and wife and were garlanded and a feast was given. Neither there was any invocation before the sacred fire nor ceremony of Saptapadi. It is admitted before me that prior to the marriage, the complainant herself was a Hindu. There is no evidence as to whether the accused Nilkantha had embraced Budhism. It is, therefore, clear that on the date of the alleged marriage, none of the parties to this marriage had embraced Budhism and could not be said to have been validly married so that the complainant can maintain such a prosecution. That finding of the learned Judge has to be affirmed.

The other contention raised by the learned counsel is based on the terms of the Hindu Marriage Act and may be briefly noticed. He says that the term ''Hindu'' under the Hindu Marriage Act includes Budhas. Therefore, for the purpose of that Act, even a Budhist form of marriage should be treated to be valid one. He relies on the Customs and Customary Law in British India by S. Roy, to point out what constitutes a valid marriage according to Budhist Law. The learned counsel, therefore, argues that several marriages are taking place by this Buddhi rites and the Courts should lean in favour of recognising those marriages so as to avoid the social mischief which may result because of such defects.

There is no evidence led in this case that such form of marriages are recognised by any custom in a particular caste of the Hindus. The Hindu Law, as is codified on the subject of marriage, does not at all help the complainant. What section 2 of Hindu Marriage Act speaks of is the application of the Act to any person who is a Hindu by religion in any of its forms or developments and also to person who is a Budhist, Jain or Sikh by religion. Sub-section (2) of section 2 speaks that the expression ''Hindu'' has to be construed as if to include a person who, though not a Hindu by religion, is, nevertheless a person to whom this Act applies by virtue of the provisions contained in this section. The provisions of section 2, therefore, clearly show that they primarily apply to Hindus who profess that religion including all of its forms or developments. Similarly, it applies to persons who are Budhist, Jains or Sikhs by religion. That itself shows that Buddhists are treated as a class different from Hindus. Both the content and the concept of Hinduism and the Buddhism for over a period of history have shown a complete divergence. It might be that originally Buddhism or Jainism were the off-shoots of Hinduism but once that discipline was born, it constituted separate independent code of religion having certain fundamental beliefs as well as practices and objectives different from the Hindu faith. History is strewn with the philosophical and political fights between these competing faiths and in its wake the hostility evinced on the Indian soil, though it had the effect of polarising these growths in distinct and differing ideologies. Though Hinduism in course of times gained ascendancy followed by an era of tolerance and sympathy for the faiths of Budhist, Jains or Sikhs ,the latter gained an identity as a religion for itself. This historical fact is behind the terms of section 2 of the Hindu Marriage Act when it makes the application of the Act by inclusion to the persons who profess Budhist, Jains or Sikh religion The Legislature itself has called it a religion, separate from Hindu religion and for a Court of law that is sufficient indication of the legislative intent.

Therefore, for the application of the provisions of the Hindu Marriage Act what must first be established is what was the religion of the parties who seek to establish their marriage. Here in this case, if the parties had not embraced Buddhism on the date of marriage, it follows that they were Hindus by religion and what must be established is a Hindu marriage between the parties.

The argument that the exodus from Hindu religion to Budhist religion should be taken note of and, therefore, it should be held that Budhist rites were looked upon as the part of Hindu rites and that does achieve a status of custom or usage for the purpose of marriage, similarly cannot be accepted. The provisions of the Hindu Marriage Act by section 3 define the expressions "custom" and "usage". It says that these expressions 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 and further lays down that the rule should be certain and not unreasonable or opposed to the public policy and further that in the case of a rule applicable only to a family, it has not been discontinued by the family. The form of marriage, which was followed by the complainant while accepting her spouse, i. e. Nilkantha, cannot be said to have any origin in any such rule. In this case it cannot be said that the form that was spoken of partook the character of custom or usage governing the marriages of any particular community residing in a locality. Even the complainant herself has stated that such marriages are only being performed for the last 10 to 15 years. To be a custom within the meaning of the Act, the rule must have hardened into law by continuous and uniform observation for a long time. It must be certain, reasonable and in keeping with the public policy. Only because such marriages are taking place in the wake of some social and religious convulsions, the Courts cannot be asked to hold that that should be treated as a rule having the force of custom and usage, contemplated by the provisions of the Hindu Marriage Act.

Therefore, the only question that calls for consideration is whether it was a marriage according to the Hindu rites, to which the complainant and accused Nilkantha belonged. The provisions of section 5 of the Hindu Marriage Act lay down the conditions of such marriage and the provisions of section 7 specify the ceremonies for such marriage. It, therefore, follows that even under the codified Hindu Marriage Act, ceremonial marriages are recognised. Section 7 speaks of solemnisation of the marriages in accordance with the customary rites and ceremonies of either party thereto. Had it been established that any of the parties belonged to Buddhism ,then it could have been possible to urge that the evidence of P. W. 1 clothes them with the status of wife and husband. In the book cited by the learned counsel, Customs and Customary Law in British India by S. Roy, the form of marriage of a Budhist under those tenets has been found to be based on consent. Consent is an essential element of the marriage tie between the two Buddhists. The learned author says that to constitute a valid marriage, no ceremony is requisite and all that is necessary is consent of both the parties to live together as husband and wife. It will thus appear that if either party was Budhist, it would have been possible to urge that taking oath and garlanding and thereafter residing together was sufficient evidence of a valid marriage.

The concept of marriage under the Hindu Law, however, has not gone any radical change by the enactment of the Hindu Marriage Act. In fact the basis structure of that concept has not at all been touched and it remains a Sanskar or a sacrament. To a Hindu, marriage is not a matter of agreement or contract but is a spiritual union of two souls. Holy invocation before the fire and Saptapadi are the minimum requisites for the solemnisation of the Hindu Marriage. Unless, therefore, it is established that there is a different custom which admits of any different form of marriage known to the Hindu Law, these rites and ceremonies will have to be established by the complainant before any claim that the spouse is guilty of the offence u/s 496, Indian Penal Code, is made in such a case.

Further submissions that the complainant had entered in the form of marriage under bona fide belief that the parties could become husband and wife by the form spoken to by her, does not help in the Court of law nor the submission that thousands of such marriages have taken place in this form. If any social problem is created by new modes which have origin in the existing or otherwise complained of circumstances, an appeal lies to Legislature and not to the Court of Law. It is not the function of the Court to make law or to lay down the social policies in that regard but to apply such laws as are legislated. The form of marriage that was followed by the complainant was neither sanctioned nor is recognised by the Hindu Law, and as such, it cannot be held that she was validly married with the accused Nilkamha.

The result is that the trial Court rightly recorded the findings and acquitted the accused. The appeal, therefore, stands dismissed.