FACTS
The appellant herein filed a complaint in the Court of Chief Metropolitan Magistrate, New Delhi stating therein that her marriage was solemnized with the respondent in Delhi “according to Hindu rites and customs”. Alleging that the respondent had solemnized another marriage with Accused 2, the complainant pleaded that Accused 1 (husband) had not obtained any divorce through the court of law and hence the action of Accused 1 was illegal and contravened the provision of law as laid down under Section 494 IPC.
Parties to the appeal however were tribals, the appellant being an Oraon and the respondent a Santhal. Both the tribes to which the parties belong are specified in Part XII of the Constitution.
She contended that as per a custom in the tribe there is a rule of monogamy. It was submitted that as the respondent had solemnised a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent was liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code.
The complaint was dismissed by the trial court holding, “there is no mention of any such custom in the complaint nor is there evidence of such custom. In the absence of pleadings and evidence reference to book alone is not sufficient”. The High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub-section (2) of Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law
ISSUE
Whether the second marriage was void as per the Hindu Marriage Act?
If the Hindu Marriage Act,1955 applied to the parties?
Whether there was any existing custom that disallowed second marriage for the tribes in question?
RATIO
In view of the facts, the parties admittedly belong to the Schedule Tribes within the meaning of clause (25) of Article 366 of the Constitution as notified by the Constitution Order and further amendments passed in terms of Article 342. Even the appellant herself had conceded that the parties to the petition are tribals who although profess Hinduism, but their marriage was out of the purview of the Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santhal customs and usage.
The appellant however relied upon an alleged custom in the tribe that mandated monogamy as a rule. For a custom to have the color of law, it is necessary for the party claiming it, to plead and thereafter prove that such custom is ancient, certain, and reasonable. Party relying upon a custom is obliged to establish it by clear and unambiguous evidence.
The appellant nowhere in her complaint referred to any alleged custom having the force of law which prohibits the solemnization of second marriage by the respondent and the consequences thereof.
HELD
As the parties belong to scheduled tribes within the meaning of clause 25 of article 366 and also in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent.
Appeal dismissed