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Bigamy act does not apply to Scheduled Tribes: HC

Bigamy is an offence under Section 494 of the Indian Penal Code, punishable with seven years' rigorous imprisonment and fine. But this penal provision will not apply if the offender is a member of the Schedule Tribes.

This is the import of a recent judgment of the Delhi high court. The verdict, rife with serious implications, was delivered by Justice M S A Siddiqui, while allowing a revision petition, setting aside orders of an additional sessions judge. The sessions judge had reversed an order of discharge passed by a metropolitan magistrate in a bigamy case.

Surajmani Stella Kaujur, daughter of a former Union minister and the first wife of Durga Charan Hansdah, a senior RBI officer at Hyderabad (the petitioner before the high court), aggrieved by her husband's conduct in marrying a second time, lodged a complaint under Section 494 IPC against him and his second wife.

On the complaint being filed, process was issued against the petitioner's husband. After recording pre-charge evidence, the metropolitan magistrate discharged him on the ground that the complainant - the first wife -- had failed to prove that the second marriage allegedly contracted by the accused husband attracted the penal provisional Section 494 IPC.

The first wife challenged the discharge order passed by the metropolitan magistrate before the additional sessions judge which was allowed vide orders dated February 26, 1997. The additional sessions judge directed the trial court to frame a charge against the accused husband under Section 494 IPC. Hence, the revision petition before the high court by the accused husband.

Assailing the validity of the impugned order, Anukulchandra Pradhan, counsel for the accused husband, urged that the parties being members of the Scheduled Tribe, were not governed by the provisions of the Hindu Marriage Act, 1955, and the sessions judge had committed a patent illegality in applying the provision of the act to the facts of the present case and holding that a prima facie case had been made out against the petitioner-husband.

Analysing the provisions of section 5 of the act which prescribes conditions to be fulfilled for the solemnisation of a marriage between two Hindus, the high court in its judgment said the marriage between two Hindus was null and void if either of them had a spouse living at the time of marriage.

''Section 17 of the act provides that any marriage between two Hindus solemnised after the commencement of the act is void if at the date of such marriage either party had a husband or a wife living. Thus, Section 17 of the act statutorily recognises the principle of monogamous marriages among Hindus, '' the high court added.

The court said the provision of Section 17 has to be read in harmony and conjunction with the provision of Section 494 IPC as Section 17 clearly provides that provisions of Sections 494 and 495 IPC shall apply accordingly.

The court said a complaint by a Hindu wife against her husband for the offence of bigamy was maintainable as the effect of Section 17 of the act was to make Section 494 IPC applicable to Hindus.

'In the instant case, it is an admitted fact that the petitioner and his second wife are members of the Scheduled Tribe. Under Section 2 (2) of the act it has been clearly stipulated that the act would not apply to the members of the scheduled tribe unless there is a notification of the central government in the official gazette, making the act applicable to the Scheduled Tribe,'' the court observed.

Thus, Sub-section (2) of Section 2 of the act, the court said, has the effect of laying down that persons belonging to Scheduled Tribes will in the matter of marriages, continue to be governed by their personal law which was hitherto applied to them and not by any of the provisions of the act unless the central government by a notification directs that any such provision should be applicable to them.

The court said no such notification had been produced before it and in view of the matter, it had no hesitation in coming to the conclusion that the petitioner and his second wife were not governed by the provisions of the act and so the provisions of Sections 17 and 494 IPC were not attracted to the facts of the present case.

''The petitioner husband was rightly discharged by the metropolitan magistrate and the additional sessions judge has committed a manifest illegality in reversing the order of discharge. Consequently the impugned order cannot be allowed to stand as it has resulted in flagrant miscarriage of justice,'' Justice Siddiqui held.

UNI

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