STATE OF BOMBAY Vs. NARASU APPA MALI

JUDGEMENT

(1.) These two appeals and one application for revision and one reference raise the same question with regard to the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. In appeal No. 331 of 1951 the Sessions Judge of South Satara held that the Act was invalid and acquitted the accused. Government have preferred an appeal from the order of acquittal. In appeal No. 113 of 1951 the Magistrate, First Class, Kaira, also took the same view and from his order of acquittal Government have also appealed. In the application for revision the Resident Magistrate, Mebsana, convicted the accused under s. 5 of the Hindu Bigamous Mar. riages Act and sentenced him to six months' rigorous imprisonment and a fine of Ra. 100. An appeal was preferred to the Sessions Judge, Meh. sana, and the learned Session Judge dismissed the appeal. In reference No. 16 of 1951 the Sessions Judge, South Satara, has referred to us the order of conviction passed by the Resident Magistrate, First Class, Miraj convicting accused No. 3 under Section 5 of the Hindu Bigamous Marriages Act and accused Nos. 3 and 4 under Section 6 of the Hindu Bigamous Marriages Act and sentencing each of them to rigorous imprisonment for one day and a fine of Rs. 50.

(2.) The Act is placed on the statute book in order to provide for the prevention of bigamous marriages among Hindus, and by the definition section "Hindus" include Sikhs, Jaine, Buddhists followers of the Arya or Brahmo Samaj or convert Hindus. Section 4 renders bigamous marriages void if they are contracted within the State after the coming into force of the Act and if they are contracted beyond the limits of the State after the coming into force of the Act and either or both the contracting parties to such marriage are domiciled in the State. Section 5 provides that the withstanding any law, custom or usage to the contrary, whoever not being a minor (and a minor is a person under 16 years of age) contracts a bigamous marriage shall, on conviction, be punishable with imprisonment for a term which may extend to seven years and shall also he liable to fine. Section 6 penalizes persons who perform, conduct or abet any bigamous marriage in the State. Section 7, with which we are not concerned, provides penalty for a person having charge of a minor concerned in a bigamous marriage, and Section 9 makes the offences cognizable.

(3.) The Act is challenged as contravening the fundamental rights guaranteed under Articles 14, 15 and 25 of the Constitution. As Article 25 has a considerable bearing on the argument advanced in respect of Articles 14 and 15, it would bo bettor perhaps to deal with that article first. Article 15 (i) confer? upon all persons the right to freedom of conscience and the right freely to profess, practise and propagate religion. That right is not an absolute or unlimited right. In the first place, it is subject to public order, morality and health. In the second place, it is subject to the other provisions of Part in--in other words, the right to profess, practise and propagate religion can only be exercised without contravening any of the fundamental rights embodied in Part III of the Constitution. The right under Article 25 (i) is further a abject to the right of the State to make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, and it is further subject to the righi of the State to provide by legislation for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.