Raghubar Dayal, J. - (1.) Bhaurao Shankar Lokhande, appellant No. 1, was married to the complainant Indubai in about 1956. He married Kamlabai in February 1962, during the lifetime of Indubai. Deorao Shankar Lokhande, appellant No. 2, is the brother of the first appellant. These two appellants, together with Kamlabai and her father and accused No. 5, a barber, were tried for an offence under S. 494, I.P.C. The latter three were acquitted by the Magistrate. Appellant No. 1 was convicted under S. 494, I. P.C. and appellant No. 2 for an offence under S. 494 read with S. 114 I.P.C. Their appeal to the Sessions Judge was dismissed. Their revision to the High Court also failed. They have preferred this appeal by special leave.
(2.) The only contention raised for the appellants is that in law it was necessary for the prosecution to establish that the alleged second marriage of the appellant No. 1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through. It is urged for the appellants that the essential ceremonies for a valid marriage were not performed during the proceedings which took place when appellant No. 1 and Kamlabai married each other. On behalf of the State it is urged that the proceedings of that marriage were in accordance with the custom prevalent in the community of the appellant for gandharva form of marriage and that, therefore, the second marriage of appellant No.1 with Kamlabai was a valid marriage. It is also urged for the State that it is not necessary for the commission of the offence under S. 494, I.P.C. that the second marriage be a valid one and that a person going through any form of marriage during the lifetime of the first wife would commit the offence under S. 494, I.P.C. even if the later marriage be void according to the law applicable to that person.
(3.) Section 494, I.P.C reads: "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." Prima facie, the expression 'whoever. . .. . . . marries' must mean 'whoever. .. . . . . . marries validly' or 'whoever.....marries and whose marriage is a valid one if the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally, give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.;