It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable; they should be established to be so by clear and unambiguous evidence.
[Case Brief] Dr. Surajmani Stella Kujur vs Durga Charan Hansdah & Anr
Case Name- Dr. Surajmani Stella Kujur vs Durga Charan Hansdah & Anr
Case number– Appeal (crl.) 186 of 200 with Special Leave Petition (crl.) 2436 of 2000
Court– Supreme Court of India
Bench– K.T. Thomas, J., R.P. Sethi, J.
Decided on– 14/02/2001
Relevant Acts– The Constitution of India, 1949, The Hindu Marriage Act, 1955, The Constitution (Scheduled Tribes) Order (Amendment) Act, 2003, The General Clauses Act.
- PROCEDURAL HISTORY AND BRIEF FACTS
- In this appeal the parties are admittedly tribals, the appellant being an Oraon and the respondent a Santhal.
- It is conceded even by the appellant that “the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Hindu Marriage Act, 1955, are thus governed only by their Santhal Customs and usage”.
- In this case, the appellant 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”.
- It is submitted that as the respondent has solemnized 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 offense punishable under Section 494of the Indian Penal Code, 1860.
- ISSUES BEFORE THE HON’BLE SUPREME COURT OF INDIA
- Who is a “Hindu” for the purposes of the applicability of the Hindu Marriage Act, 1955?
- RATIO DECIDENDI (RATIO OF THE COURT)
- The court observed that For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. 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.
- In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya, [14 Moo. Ind. App. 570 at p.585] where it was pronounced that: “It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable; they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.”
- This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & Ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. [AIR 1964 SC 118] again, it was reiterated that “the importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 of the Hindu Marriage Act, 1955saving the validity of a marriage solemnized prior to the commencement of the Act which may otherwise be invalid after passing of the Act”
- The Hon’ble Court observed the trial court holding that, “there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient”.
- The Court enunciated that it cannot be adjudicated upon such a proclaimed right of the appellant, where the counsel appearing for the appellant submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 of the Indian Penal Code, 1860 and holding the respondent guilty of bigamy, the appellant is entitled to maintenance, succession and other benefits on account of her being the legally wedded wife of the respondent.
- The court observed that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non-est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 of the Indian Penal Code, 1860.
- The Hon’ble Court has not found any merits in the appeal so enunciated which was dismissed accordingly, and thus the appellant was at liberty with respect to the rights so available by way of civil proceedings in a competent court of jurisdiction and then such of the proceedings if initiated would be decided then upon its merit keeping in consonance with the pleadings and proofs and not being influenced by any of the observations made by the trial magistrate or the High Court.
- DECISION HELD BY THE HON’BLE SUPREME COURT
- The court found no merit in this appeal which is accordingly dismissed.