Srinivasa Aiyar vs Saraswathi Ammal

These eight petitions have been posted before us as they raise the important question of the validity of the Madras Hindu (Bigamy Prevention

and Divorce) Act, 1949, Madras Act VI of 1949 (hereinafter called the Act). The Act came into force on the 29th March 1949 before the

Constitution of India came into force. In five of the petitions, the marriages in question were performed before the Constitution came into force.

Criminal R. C. Nos. 713 and 1431 Of 1950 relate to the same marriage and Criminal R. C. Nos. 506 and 1481 of 1950 and Criminal M. P. No.

157 of 1951 are petitions relating to marriages performed before the Constitution of India came into force. In Criminal R. C. No. 592 of 1951 and

Criminal M. P. No. 223 and 1099 of 1951 the alleged marriages were after the Constitution of India came into force. In all these cases, criminal

proceedings were initiated for an offence u/s 494 I. P. C. read with Section 4(2) of the Act. In some of the cases proceedings were taken for the

abetment of the offences against the abettors. u/s 494 I.P.C., ""Whoever having a husband or wife living, marries in any case in which such marriage

is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to fine.

The section does not in terras declare the second marriage void; but if under the law to which the parties are subject, the second marriage is

prohibited and is therefore void, the person contracting second marriage which is performed notwithstanding the prohibition of the law to which the

parties are subject, will be guilty of an offence punishable u/s 494 I. P. C. In order therefore to determine whether the second marriage is void or

not by reason of its taking place when such husband or wife is alive, one has necessarily to look to the law to which the parties are subject. Under

the personal law governing the Hindus and the personal law governing the Mahomedans, the second marriage is not void by reason of its taking

place during the life of a wife. Therefore, a second marriage could be contracted with impunity under the personal law governing the Hindus and

Mahomedans. The Act was placed on the Statute Book with the object of prohibiting bigamous marriages among, as the preamble shows, and to

provide for a right of divorce for, Hindus in the Province of Madras. Section 2(1) defines ""Hindu"" as meaning ""(a) a person professing the Hindu

religion in any of its forms or developments, including a Virashaiva or Lingayat or a member of the Brahmo, Prarthana or Arya Samaj or (b) a

person professing the Buddhist, Jaina or Sikh religion.

The other parties of the section not being relevant need not be quoted. The Act is made applicable by Section 3 to Hindus domiciled in the

Province of Madras and the explanation to that section states that the Act shall also apply if either of the parties to the marriage was a Hindu

domiciled in the Province of Madras. Section 4 declares bigamy to be void and makes it punishable. Sub-section (1) to. Section 4 runs thus:

Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of this Act between a man

and a woman either of whom has a spouse living at the time of such solemnization shall be void whether the marriage is solemnized within or

outside the Province of Madras.

Omitting the proviso and the explanation to this sub-section, there is Sub-section (2) which is relevant and which states;

If a party to a marriage which is void under Sub-section (1) has completed eighteen years of age at the time of the solemnization of such marriage,

he or she shall be deemed to have committed -an offence u/s 494 or Section 495 I. P. C. as the case may be.

The effect of Sub-section (1) is undoubtedly to modify that part of the personal law of Hindus relating to marriage which permitted bigamy as a

consequence of which the second marriage would be void; and would attract the provision in Section 494 I. P. C. By Sub-section (2) it is further

provided that he or she shall be deemed to have committed an offence u/s 494 or 495 I.P.C. The validity of the Act was impugned on the ground

that it offends the fundamental rights recognised under the Constitution in Articles 14, 15 and 25 and that as the provisions of the Act are

inconsistent with the provisions of Part III of the Constitution, it is claimed that to the extent of such inconsistency, the Act should be held to be

void within the meaning of Article 13(1) of the Constitution. Article 13(1) does not help the petitioners in cases in which the marriage took place

before the Constitution came into force as it has now been authoritatively decided by the Supreme Court Jn ''Keshava Madhava Menon v. State of

Bombay'', 1951 SCJ 182 that Article 13(1) has no retrospective effect but is wholly prospective in its operation and that if the act which was an

offence at the time, was done before the commencement of the Constitution, in contravention of the provision of any law, which after the

Constitution became void with respect to the exercise of fundamental rights, the inconsistent law is not wiped out retrospectively so as to matte the

act not an offence. There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the

Constitution came into force. In view of this decision, the petitions in Crl. R. C. Nos. 713, 1431, 508 and 1481 of 1950 and Crl, M. Ps. Nos. 157

of 1951 were not pressed. They have all therefore to be dismissed subject however to one Question which arises for consideration in Crl. p. C.

Nos. 713 and 1431 of 1950 which relate to the same marriage. That question will be dealt with later. The other three petitions raise the question of

the validity of the Act on the ground that it encroaches on the fundamental right recognised by the Constitution and it became therefore void as it is

inconsistent with the provisions of Part III of the Constitution.

Though reference was made in the course of the argument to Article 14 of the Constitution also, reliance on behalf of the petitioners who

impugned the .validity of the Act was placed only on Articles 15 and 25. Under Article 15(1) the State is prohibited from discriminating against any

citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The contention strongly pressed before us was that the Act in

question selected the Hindus for this kind of discriminatory legislation leaving the Muhammadans out of consideration altogether. While permitting

the Mahomedans to continue under their personal law to marry more than one wife, the Act in the case of Hindus prohibits bigamy and makes it an

offence. In support of this, the decision of the Pull Bench of this Court in what is known as the Communal G. O. case ''Champakam Dorairajan v.

The State of Madras'' 1950 2 M.L.J. 404 was cited. The Communal G. O. was declared invalid by the Full Bench on the ground that it

discriminated against citizens because of caste. The learned Chief Justice and Viswanatha Sastri J. considered the decisions which throw light in

considering a question of this nature. The decision was affirmed by the Supreme Court in the ''State of Madras v. Champakam Dorairajan1, 1951

SCJ 313 though the Supreme Court rested its decision only on Article 29(2) and did not express any opinion on Article 15. Prima facie, the

argument advanced on behalf of the petitioners seems to be attractive and lends support to the view that discrimination was made between Hindus

and Mohamedans on this question of the right to marry more than one wife. But the point for consideration is, does discrimination proceed on the

ground of religion? It is common knowledge that from early times when the British acquired the administration over this country, the personal law

was applied in the case of Hindus and similarly in the case of Mohamedans also, their personal law was applied in certain matters. It is unnecessary

to subject these provisions of the Statutes bearing on this question to a detailed examination as the learned Advocate General has done in the

course of his argument as the proposition cannot be contested. Article 14 of the Constitution is a general article guaranteeing to a person that a

State shall not deny him equality before the law or the equal protection of the laws. As a corollary to this, we have Articles 15 and 16 which

prohibit discrimination on the ground of religion, race, caste, sex, place of birth in the case of citizens. It is no doubt true that the decisions have

established that Article 14 does not prevent classification based on reasonable ground for specified objects. The principles which should govern,

the application of Article 14 have been laid down and summarised by Fazl Ali J. in the Bombay Prohibition case, the ''State of Bombay v.

Baisara'', 1951 SCJ 478 in the form of propositions. The learned Judge also cited with approval the passage from Prof. Willis'' book dealing with

the fourteenth amendment to of the Constitution of the United States in which the learned author summed up the law relating to the guarantee of

equal protection of laws under the Constitution of the United States. The application therefore of that article in view of the clarification made by the

Supreme Court does not present any difficulty. As pointed out by Fazl Ali J. the classification is bound to produce some inequality to a certain

degree but that would not be enough to invalidate a law so long as the law deals equally within the members of a well defined class. The

classification which is permissible however should not be based upon unreal and unsubstantial grounds and should not be arbitrary and without any

substantial basis. If the statute however prohibits classification on a particular basis as do Articles 15 and 16 of the Constitution, the law cannot be

Justified on the ground that notwithstanding that it contravenes the prohibition it is valid on the ground that it attempts at a reasonable classification

based upon real, substantial and reasonable grounds.

Bearing these principles in ''mind, the contention that the Impugned legislation infringes the rights recognised under Article 15 as it is based on

discrimination of religion and religion only, may now be examined. ""Marriage and divorce, infants and minors, adoption"" are in the Concurrent

Legislative List. List III of Schedule 7 of the Government of India Act, 1935 item 6, and item 7 relates to ""Wills, intestacy and succession"". Under

the present Constitution, the Concurrent List, List III item 5 relates to Marriage and Divorce; infants and minors; adoption; Wills, intestacy and

succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of

this Constitution subject to their personal law. Legislative power therefore is conferred by these Articles (items?) to enact la*s, amend or alter or

repeal parts or whole of the personal law as is clear from the fact that adoption, joint family and partition are matters peculiar to Hindu Law a.nd

do not relate to any other law. Prima facie therefore the legislative power of the State Legislatures legitimately extends to affect the personal law of

the Hindus. That does not however mean that this legislative power could abrogate the fundamental rights in Part HI of the Constitution. But it is

surely an indication that it recognises the classification already in existence that a section of the people, viz., the Hindus are subject to a system of

law peculiar to them. The essence of that classification is not their religion but that they have all along been preserving their personal law peculiar to

themselves which was derived from the gmritis, commentaries, custom and usage, in the same manner in which the Mohamedans are subject to

their personal Jaw. It is that personal law that was now sought to be affected by the Act to the extent of modifying and abrogating the rule that a

Hindu is entitled to marry any number of wives without restriction; in other words of abolition of polygamy. The argument of the learned Advocate

General therefore that the Act does not offend on the ground of discrimination based on religion seems to be sound. It is unnecessary to consider

how far and to what extent polygamy was permitted under Hindu law and whether it is an absolute or unrestricted right or was only a limited right;

nor is it necessary to go into the more difficult question whether the expression ""all laws in force"" in Article 13(1) of the Constitution includes

personal law or not for even assuming that it does, the Act does not offend in our opinion. Article 15. If the argument of the petitioners were to be

accepted, most of the personal law of the Hindus may have to go as there are fundamental differences on various matters between the personal law

of the Hindus and the personal law of the Mohamedans. The petitioners'' learned advocate however did not go to that length in the course of the

arguments before us. It is a classification of persons which existed from a long time not based solely on the ground of religion but based on

considerations peculiar to each of the communities; Hindus and Mohamedans. Hindu law, as is well known, had a peculiar growth and was to a

large extent modified by legislation and also by judicial decisions during the British period and it is therefore difficult to accept the contention that

the law applicable to Hindus is a law which discriminates against citizens on the ground ''only'' of their religion.

The next argument was based upon Article 25(1) of the Constitution which confers upon persons freedom of conscience and the right freely to

profess, practise and propogate religion. It is said that the prohibition enacted by the Act against polygamy and preventing a man from marrying a

second wife when the first was alive takes away the right of the person freely to practise his religion. It is essential no doubt, according to Hindu

law, that a man should have a son for the discharge of the three debts to which a person is subject after his birth and for the performance of

religious ceremonies which are calculated to conduce to the spiritual welfare of the deceased father, if a person is not able to get a son by his first

wife, he may have to marry a second wife with a view to produce a son. The free practice of religion therefore, it is said was prohibited by the

Statute. It is rather difficult to accept this argument. If a man has no natural son born by his first wife, the law recognises the right to adopt a son to

perpetuate his lineage and to continue his line. The adopted son serves the same purpose from the point of view of religion as the natural born son.

A person therefore if he is prevented from marrying a second wife is not thereby prevented from the free practise of his religion. It is more a matter

of sentiment even if the belief that he would procure a son by a second ''marriage is well founded. It is unnecessary to refer to the decisions of the

Supreme Court, United States which have been referred'' to by the learned Advocate-General in the course of the arguments. They do not throw

much light on the question now in controversy. In the case of ''Reynolds v. United States'' (1879) 98 U S 145 which also related to the validity of a

Statute prohibiting polygamy, It was pointed out that:

Laws arc made for the Government of actions, and while they cannot interfere with mere religious- belief and opinions, they may with practices.

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil Government

under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed that it was her duty to burn herself upon the funeral

pile of her dead husband, would it he beyond the power of the civil Government to prevent her carrying her belief Into practice?''

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be

allowed. Can a man excuse his practice to the contrary because of his religious belief? To permit this would be to make the professed doctrines of

religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in

name under such circumstances.

We have quoted this passage to show that this freedom to practise religion is not an absolute right taut as Article 25 itself states it is subject to

public order, morality and health and subject to the other provisions of this part. Article 25(2) further empowers the legislature to enact a law

providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of

Hindus. The religious practice therefore may be controlled by legislation if tile State thinks that in the interests of social welfare and reform it is

necessary to do so. The argument therefore that the legislation contravenes the rights under Article 25(1) of the Constitution is without any force

and must be rejected.

It follows therefore that the Act is valid and these petitions must be dismissed.

Criminal R. C. Nos. 713 and 1431 of 1950: We have reserved to the last the consideration of a question which is peculiar to these revision

petitions. Though the marriage took place before the coming into force of the Constitution and Constitution does not help the petitioners, the further

question raised is whether the complaint in the case should have been filed by a person aggrieved within the meaning of Section 198, Criminal

P.C., which lays down;

No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Indian Penal Code or under Sections 493 to 496

(both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence.

In the present case, the complaint was filed by an outsider and the objection was taken that as the person is not aggrieved within the meaning of

Section 198, Criminal P.C., the complaint was not maintainable. This of course was on the assumption that for an offence under the Act, the

procedure laid down u/s 198, Criminal P.C., is attracted. The argument is that Section 4(2) states that ""he or she shall be deemed to have

committed an offence u/s 494 or Section 495, I.P.C."" and therefore it is not an offence u/s 494 as such and the procedure laid down u/s 198

Criminal P.C., was not attracted. The contention that Section 198, Criminal P.C., was applicable was accepted by the first Court but the appellate

Court upheld this contention only so far as accused 1 and 2 are concerned but so far as accused 3 to 5, the abettors are concerned, it overruled

this contention and directed the Additional First Class Magistrate to proceed with the complaint against them. Criminal R. C. No. 713 of 1950

was filed by the complainant against that part of the order of the Courts below in so far as it was held that the complaint could not be proceeded

with against accused 1 and 2 without a complaint by a person aggrieved within the meaning of Section 198, Criminal P.C. The connected revision

petition is by accused 3 to 5 as the lower Court directed that the enquiry should proceed against them. The main contention was that Section 198,

Criminal P.C., has no application as a new offence was created under the Act though the punishment should be if the offence is established as

provided by Section 494, I.P.C. In the first place when once the rule under Hindu Law is altered the second marriage becomes an offence within

the meaning of Section 494, I.P.C., even without its being declared so by Section 4 (2) of the Act. Therefore, Section 198, Criminal P.C. is

automatically attracted. In the second place, the expression shall ""be deemed to have committed"" is familiar to legislative practice and as pointed

out by Cave, J., in ''Rex /. Norfolk County Council'', (1891) 60 L J Q B 379 :

Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It

is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless ..... it is to be

deemed to be that thing.

It was applied in ''Venkatanarayana v. Somaraju'', ILR (1937) Mad 880 . In various acts of the local legislature, the words ""as if they were arrears

of land revenue"" were introduced so as to recover the amount due to the State. This expression has been construed to mean that the procedure

laid down in the Revenue Recovery Act is made applicable in its entirety - See ''Ibrahim Khan v. Rangasaml'' 28 Mad 420 and ''Sankaran

Nambudripad'' v. Ramaswami Aiyar'', 41 Mad 691 where the earlier authorities were all collected. Learned counsel for the petitioner relied on the

decisions of the Bombay High Court in ''Emperor v. Manju Hanmant'' ILR (1948) Bom 412. That was a case under the Bombay Prevention of

Hindu Bigamous Marriages Act, Bombay Act XXV of 1946 where it was held that having regard to the peculiar provision of that Act contained in

Section 9 which made offences under that Act cognizable that the provision of Section 198, Criminal P.C., was not attracted. Section 9 of that Act

definitely laid down that offences under that Act shall be cognizable. The effect of making the offences cognizable is undoubtedly to enable the

police to initiate proceedings, vide Section 190, Criminal P.C. When once that is recognised, the requirement of Section 198, Criminal P.C., must

be deemed to have been done away with and the intention of the legislature was not to insist that the procedure in Section 198, Criminal P.C.,

should be complied with. It cannot be said that a police officer after taking cognizance of the offence should keep the person in jail for a period of

15 days and should drop the matter thereafter without initiating proceedings u/s 190, Criminal P.C. The offence u/s 494, I.P.C., is not a cognizable

offence. But the Bombay Act made it cognizable. It is therefore clear that the Madras Act departed from the procedure laid down in the Bombay

Act. The decision therefore in ''Emperor v. Manju Hanmant'' ILR (1948) Bom 412 affords no guidance in interpreting the provisions of the

Madras Act. We must therefore hold that the procedure prescribed by Section 198, Criminal P.C. applies when a Court is called upon to take

cognizance of an offence punishable u/s 494, I.P.C. An offence punishable u/s 494, I.P.C., even read with Section 4 (2) of the Act is an offence

that ""falls under Ss. 493 to 496, I.P.C.,"" within the meaning of S-198, Criminal P.C. That should suffice to dismiss Criminal R. C. No. 713 of

1950.

It was not contended before us that if the Court is precluded by Section 198, Criminal p. C., from taking cognizance of an offence punishable

u/s 494, I.P.C., without a complaint made by a person aggrieved, the Court could still take cognizance of an abetment of such an offence without a

complaint made by a person aggrieved. Section 40, I.P.C., runs:

Except in the chapters and sections mentioned in Clauses 2 and 3 of this Section, the word ''offence'' denotes a thing made punishable by this

Code.

Section 494, is not one of the sections excepted by Clause 2 or Clause 3. Section 109, I.P.C., runs thus:

Whoever abets any offence shall, if he Act abetted is committed in consequence of the abetment, and no express provision is made by this Code

for the punishment of such abetment, be punished with the punishment provided for the offence.

Section 114, I.P.C., is as follows:

Whenever any person, who if absent would be liable to be punished as an abetter, is present when the Act or offence for which he would be

punishable in consequence of the abetment is committed, he shall be deemed to have committed such an act or offence."" No express provision

having been made by the Indian Penal Code for the punishment of the abetment of an offence punishable u/s 494, I.P.C., such abetment is

punishable with punishment provided for the offence falling u/s 494, I.P.C. Abetment of an offence punishable u/s 494, I.P.C., is also thus an

offence that ""falls u/s 494, I.P.C."" within the meaning of Section 198, Criminal P.C. That there is no specific provision like Section 195(4) Criminal

P.C., in Section 198, Criminal P.C., does not in our opinion, make Section 198, Criminal P.C., any the less applicable where the charge is

abetment of an offence punishable u/s 494, I.P.C.

The charge against accused 3 to 5 in the complaint as it was preferred was u/s 494, I.P.C., though Section 4 (2) of the Act was also invoked.

The allegation was that accused 1 married accused 2 in the presence of his mother accused 5 and accused 3 and accused 4 and with their active

cooperation. The scope of that allegation was much wider than that of the ""offence"" defined by Section 4(4) of the Act, which referred to the

performance and conduct of the bigamous marriage and with the abetment thereof. Thus the offence with which accused 3 to 5 were charged in

the complaint was one punishable u/s 494, I.P.C., the allegations laid the basis for a charge of abetment of an offence punishable u/s 494, I.P.C.

What the position would have been had accused 3 to 5 been charged with an offence punishable u/s 4(4) of the Act we are not called upon to

decide in these proceedings. Both in form and in substance, the charge against accused 3 to 5 was abetment of an offence punishable u/s

494,1.P.C., and to such a complaint Section 198, Criminal P.C., is clearly applicable.

Criminal R. C. No. 1431 of 1950 is allowed; and the order of the learned Additional Sessions Judge is set aside; and the order of dismissal of

the complaint u/s 203, Criminal P.C., passed by the learned Magistrate is restored.