This article has been written by Shreya Saxena. This article provides an insight into the judgement rendered by the Supreme Court in Dr. Surajmani Stella Kujur v. Durga Charan Hansdah. It comprehensively analyses the facts, issues involved, arguments advanced and the observations of the Court in detail.

Introduction

Marriage, as a social institution, has held great significance as a means to advance and strengthen human society since time immemorial. In India, marriage, divorce, succession, guardianship, etc. are governed by the personal laws of each community. Marriage among Hindus is recognized as a ‘sacrament’ and is governed by the Hindu Marriage Act, 1955. Being a Hindu by religion is a sine qua non for the Act to apply.

The present case pertains to a discourse on “who is a Hindu?” for application of the Hindu Marriage Act, 1955 and lends clarity on the status of Scheduled Tribes under the Hindu personal law. The judgement also addresses the essentials of a valid custom having the force of law.

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Details of the case

Name of the case: Dr. Surajmani Stella Kujur v. Durga Charan Hansdah and Anr

Citation: AIR 2001 SC 938

Bench: Justice K.T. Thomas, Justice R.P. Sethi

Court: Hon’ble Supreme Court of India

Date of Judgement: February 14, 2001

Statute involved: Hindu Marriage Act, 1955

Important provisions dealt in the case: Constitution of India: Article 20, Article 44, Article 342 and Article 366

Hindu Marriage Act, 1955: Section 2, Section 3, Section 5, Section 11 and Section 29 

Indian Penal Code, 1860: Section 494

Petitioner: Dr. Surajmani Stella Kujur

Respondent(s): Durga Charan Hansdah and Another

Background of the case

The dominance of Hinduism over decades led to hinduization of the tribal community in India. These communities adapted to Hindu customs and rituals while undermining their own cultural identities and ways of life. In recognition of their vulnerable position, the Tribal community was excluded from the application of Hindu personal laws in an effort to preserve their culture, traditions and customs. Article 342 pertains to the Scheduled Tribes in India. It is pertinent to note that if the tribe does not find mention in any order or notification under Article 342 of the Constitution of India, members of such tribes would be deemed to be Hindus.  Additionally, a tribe may still be deemed Hindu despite mention in such an order, upon further notification by the Central Government as per Section 2(2) of the Hindu Marriage Act, 1956. The case of Dr. Surajmani Stella Kujur v. Durga Charan Hansdah and Anr. (2001) is a landmark judgement highlighting the scope of ‘Hindu’ in the Hindu Marriage Act, 1955.

Facts of Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah and Anr. (2001)

The appellant and respondent no. 1 in the present case were both tribals, as per their own admission. While the Appellant was an Oraon, the Respondent belonged to the Santhal tribe. Both tribes are mentioned in Part XII of the Constitution (Scheduled Tribes) Order, 1950.

A complaint was filed by the appellant-wife before the Court of Chief Metropolitan Magistrate, New Delhi, stating that her marriage was solemnised with Respondent No. 1 as per ‘Hindu rites and customs’. She further alleged that Respondent No. 1 had married Respondent No. 2 without seeking divorce from the Appellant, and hence the second marriage was void under the Hindu Marriage Act, 1955 and the husband was liable for bigamy under Section 494 of the Indian Penal Code for marrying again during the subsistence of the first marriage.

However, the Court of Chief Metropolitan Magistrate, New Delhi, observed that:

  • The parties admittedly belonged to a tribal community and were governed by their own customs and usages. 
  • There was no evidence supporting the existence of such a custom prohibiting second marriage.

In view of the above circumstances, it was held that the husband could not be held liable. In appeal before the Hon’ble High Court, the decision of the Chief Metropolitan Magistrate, Delhi, was confirmed. The Delhi High Court held that in the absence of any notification under Section 2(2) of the Hindu Marriage Act 1955, the second marriage of the respondent could not be rendered void, either under Hindu law or as per established custom having the force of law. Finally, the case came up in appeal before the Hon’ble Supreme Court.

Issues raised in Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah and Anr. (2001)

  • Who is a ‘Hindu’ under the Hindu Marriage Act, 1955?
  • When can a custom be deemed to have obtained the force of law?

Arguments of parties

Petitioner

The Appellant had deposed before the Trial Court that she was a Hindu by religion; she later conceded that since both parties were tribals, even though they professed Hinduism, their marriage continued to be governed by Santhal customs and usage. However, she further submitted that even in that case, according to the prevalent customs of the Santhal tribe, which mandated monogamy, the respondent husband could not have solemnised a second marriage during the subsistence of his previous marriage with the appellant. She alleged that the second marriage solemnised was void and the respondent was liable under Section 494 IPC for commission of bigamy.

Respondent

The respondent argued that the second marriage solemnised by him was in consonance with the Santhal tribe’s customs and usages. There was nothing in law that prevented him from doing so, even during the lifetime of the appellant.

Important laws dealt in the case

The Indian Penal Code, 1860

Section 494: Marrying again during lifetime of husband or wife

Anyone who marries while their spouse is still alive, knowing that such a marriage is invalid because it occurred during the spouse’s lifetime, shall face imprisonment for up to seven years and may also be fined.

(Exception): This section does not apply to individuals whose marriage to the spouse has been legally declared void by a competent court. It also does not apply to individuals who marry during the lifetime of a former spouse if the former spouse has been absent for seven continuous years and has not been heard from, provided that the individual intending to marry again informs their prospective spouse about these facts before the marriage.

The Hindu Marriage Act, 1955

Section 2: Application of the Act

This legislation is applicable to individuals of the Hindu faith, including variations like Virashaiva, Lingayat, or followers of Brahmo, Prarthana, or Arya Samaj. Individuals practising Buddhism, Jainism, or Sikhism or Any other individual domiciled in the territories covered by this Act who is not Muslim, Christian, Parsi, or Jewish, unless it’s proven that such individuals would not have been governed by Hindu law or its customs if this Act hadn’t been enacted.

Explanation: The following individuals are considered Hindus, Buddhists, Jainas, or Sikhs: 

a) Children, legitimate or illegitimate, born to parents who are Hindus, Buddhists, Jainas, or Sikhs. 

b) Children, legitimate or illegitimate, with one parent who is a Hindu, Buddhist, Jaina, or Sikh and who is raised within the cultural or religious community of that parent. 

c) Persons who convert or reconvert to Hinduism, Buddhism, Jainism, or Sikhism.

However, this Act doesn’t apply to members of Scheduled Tribes unless otherwise directed by the Central Government through official notification. The term “Hindu” in this Act includes individuals to whom the Act applies under this section, even if they aren’t Hindu by religion.

Section 3(a): Definition of “custom & usage”

The terms “custom” and “usage” refer to any established rule that has been consistently and uniformly followed for a considerable period, thereby acquiring legal force among Hindus within a specific locality, tribe, community, group, or family. However, this rule must meet certain criteria: it must be definite, reasonable, and not contrary to public policy. Additionally, in the case of a rule specific to a family, it must not have been abandoned by that family.

Section 5: Conditions for a Hindu marriage

A marriage between two Hindus can take place if the following conditions are met:

(i) Neither party is currently married.

(ii) At the time of marriage, neither party:

  1. is incapable of giving valid consent due to unsoundness of mind,
  2. is capable of giving consent but has a mental disorder that makes them unfit for marriage and childbearing, or 
  3. has experienced recurrent episodes of insanity.

(iii) The groom is at least twenty-one years old, and the bride is at least eighteen years old at the time of marriage.

(iv) The parties are not within the prohibited degrees of relationship, unless their customs or traditions allow such a marriage.

(v) The parties are not sapindas (closely related by blood), unless their customs or traditions permit such a union.

Section 11: Void marriages

Any marriage conducted after the enactment of this Act will be deemed null and void upon petition by either party against the other, if it violates any of the conditions outlined in clauses (i), (iv), and (v) of section 5.

Section 29: Savings

(1) A marriage between Hindus conducted before this Act’s enactment, which is otherwise valid, will not be considered invalid solely because the parties belonged to the same gotra or pravara, or to different religions, castes, or subdivisions of the same caste.

(2) This Act does not impact any right, whether arising from custom or conferred by specific legislation, to seek the dissolution of a Hindu marriage, regardless of whether it was solemnised before or after this Act came into effect.

(3) This Act does not affect ongoing proceedings under existing laws at the time of its commencement for declaring a marriage null and void, or for annulment, dissolution, or judicial separation. Such proceedings may continue and be resolved as if this Act had not been enacted.

(4) The provisions of the Special Marriage Act, 1954 (43 of 1954), concerning marriages between Hindus conducted under that Act, whether before or after the commencement of this Act, remain unaffected by this Act.

The Constitution of India

Article 44: Uniform Civil Code

It provides that it shall be an endeavour by the State to ensure application of a Uniform Civil Code throughout India.

Article 342: Scheduled Tribes

(1) The President, in regard to any State or Union territory, and if it’s a State, after consulting its Governor, can publicly specify through notification the tribes, tribal communities, or specific groups within them that will be recognized as Scheduled Tribes for the purposes of this Constitution in relation to that State or Union territory.

(2) Parliament holds the authority to enact laws to include or exclude any tribe, tribal community, or subgroup from the list of Scheduled Tribes mentioned in a notification issued under clause (1). However, apart from this provision, any notification issued under clause (1) cannot be altered by any subsequent notification.

Article 366(25): Definitions

“Scheduled Tribes” refers to tribes, tribal communities, or specific parts or groups within those tribes or tribal communities, as determined under Article 342 of the Constitution, and recognized as Scheduled Tribes for the purposes outlined in this Constitution.

Judgement in Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah and Anr. (2001)

A division bench of the Supreme Court, comprising Justice K.T. Thomas and Justice R.P. Sethi, was seized of an appeal where an Oraon tribal woman sought relief under the Hindu Marriage Act, 1955, against her estranged husband, who had solemnised a second marriage during her lifetime. The question of law that came up for consideration was “Who is a Hindu?” for application of the Hindu Marriage Act, 1955. The Supreme Court held that Scheduled Tribes were excluded from the purview of the Act.

Thereafter, another line of argument was advanced by the Appellant that the customary laws of the Santhal community only permitted monogamy. However, the Appellant was unable to prove the existence of such a custom. Accordingly, the Court observed that in the absence of material evidence on record regarding the existence of a custom and the exclusion of the tribes from the purview of the Hindu Marriage Act, 1955. The second marriage solemnised by the respondent husband could not be declared void, and hence he was not guilty of bigamy under Section 494 IPC. An issue wise detailed analysis of the landmark judgement is provided below.

Rationale behind the judgement

Who is a ‘Hindu’ under the Hindu Marriage Act, 1955?

Being a Hindu is a sine qua non for the application of the Hindu Marriage Act, 1955. Hinduism harbours within its folds an eclectic mix of practices, traditions and cultures that are impossible to define, given their magnitude. Therefore, in order to answer the above question, the judgement delves into Section 2 of the Act: which provides an exclusionary definition describing who is not a ‘Hindu’. The definition under Section 2(1) recognizes that the Act shall only apply to individuals who are Hindu by religion, in all its forms and manifestations, including the followers of Arya, Bramho and Prarthna Samaj, Lingayat and Veerashaiva sects, Buddhists, Sikhs, Jains, and persons not practising Zoroastrianism, Islam, Christianity or Judaism, while Section 2(2)  of the Hindu Marriage Act excludes members of Scheduled Tribes under Article 366(25) from the definition unless directed by the Central Government through notification in the Official Gazette. The Apex Court relied upon the above interpretation to hold that the Appellant and Respondent, who were members of the Oraon and Santhal tribes, respectively, were governed by Santhal customs and usages, to the exclusion of the Hindu Marriage Act. Therefore, the second marriage contracted by the respondent- husband could not be declared void under Section 11 read with Section 5(i) on the ground that it was contracted during the complainant’s lifetime. 

When can a custom be deemed to have obtained the force of law?

Customs generally relate to the civil rights of individuals, a violation of which shall not constitute a criminal offence. According to Article 20 of the Constitution, nobody can be convicted for an offence except if it is in violation of the ‘law in force’ at the time the offence was committed. Hence, customs can only be used to prove violations of civil rights, which may in turn constitute ingredients for a criminal offence.

“Custom and Usage,” defined in Section 3(a) of the Hindu Marriage Act, denotes any rule that has been observed continuously and uniformly since time immemorial and has obtained the force of law in some local area, group, family or within a tribe. Additionally, a proviso to the section provides that such custom or usage must not be unreasonable or opposed to public policy. 

The Apex Court observed that for a custom to have the force of law, three conditions must be fulfilled. It must be ancient, uniform and reasonable. The court relied on the case of Ramalakshmi Ammal v. Sivananatha Perumal Sethurayar (1872) to hold that special usages that modify ordinary law must be ancient, invariable and established by clear and unequivocal evidence. The same position in law was reiterated in the case of Mirza Raja Pushpavati Vijayaram Gajapathi Raj & Ors. v. Sri Pushpavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. (1964). The Courts shall recognize the existence of a custom only upon ascertaining that it is certain, antique and capable of being established by cogent evidence. Once a custom is recognized, Section 29 of the 1955 Act acts as a savings clause and provides that if any right is recognized by a custom, nothing contained in the Act shall affect such rights, thereby recognizing the significance a valid custom holds.

In the present case, an analysis of the pleadings revealed that no such custom which prohibited the husband from contracting a second marriage during his wife’s lifetime could be made out, and hence the marriage so contracted could not be declared void. The Bench also recorded that no such reference to an existing custom prohibiting polygamy was initially made by the appellant in her complaint before the Court of Chief Metropolitan Magistrate, Delhi. It was only an afterthought at a later stage. Since, a void marriage is a prerequisite to attaching liability under Section 494 IPC, it was held that the respondent husband could not be held guilty of committing bigamy. The court further emphasised that mere statements about the existence of a custom shall not suffice and have to be substantiated by evidence establishing its existence from time immemorial. 

Analysis of Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah and Anr. (2001)

Section 494 of the Indian Penal Code provides that when a person marries again, despite having their spouse living at the time of contracting such marriage- such a marriage shall be rendered void and the contemnor shall be punished with imprisonment up to seven years and a fine.

A void marriage is one of the qualifying criteria set forth under section 494 IPC. In the present case, by virtue of not being governed by the Hindu Marriage Act and her inability to prove any custom among the Santhals mandating monogamy, the appellant wife was unable to seek any effective legal remedy. This is the story of many other women who have been discriminated against under the garb of religion, culture, and traditions. While the relevance of this landmark judgement is limited to defining the scope of application of the Hindu Marriage Act, 1955 in hindsight, another issue that reveals itself is the need for a Uniform Civil Code (UCC).

There is no denying the fact that subordination of women, often justified by some divine purpose, has long been the underlying theme of many cultural and religious practices alike. Practices such as Sati, the exclusion of daughters in succession to ancestral property, triple talaq and the flawed Mehr system, which were abolished later, are all glaring examples of the same. However, such piecemeal attempts by the courts at bridging the gap between personal laws’ and Constitutional tenets are insufficient and have paved the way for a dialogue on the UCC.

A study carried out by the Committee on the Status of Women in 1974 – evaluated polygamous marriages solemnised after the introduction of the Hindu Marriage Act and recorded a sharp decline among  Hindus. On the other hand, tribal polygamous marriages, which were still unregulated, doubled to a whopping 17.98%. Neither any efforts were made to codify tribal customs nor were any reforms brought about, leading to long- standing stagnancy. Concurrently, polygamous marriages among Muslims also saw a gradual rise. However, religion has always been a contentious issue in the Indian subcontinent, more so after the bloodied 1947 partition. Therefore, in order to reassure minorities who may have harboured doubts about the intentions of the majority community, the personal laws of each community were retained and given legal recognition. Additionally, a provision for a Uniform Civil Code was included only as a non- binding policy directive under Article 44 of the Constitution for future governance. 

Now, several years later, when India has assumed the role of a modern welfare state that is signatory to various international conventions, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Civil and Political Rights (ICCPR), it becomes essential to do away with regressive practices continuing under the garb of religion and/or customs. In this background, a Uniform Civil Code that addresses matrimony, maintenance, succession and guardianship and applies universally to all citizens becomes imperative.  

Conclusion

India is a nation of diverse ethnicities, religions and cultures bound together by the Constitution. While public law, including the Constitution, dictates the relationship of citizens with the State, the private sphere continues to be governed by personal laws. Speaking of personal laws, it is pertinent to observe that in the present case, the appellant remained unsuccessful in her attempt to prove the respondent- husband guilty of bigamy even upon solemnization of another marriage during the lifetime of the Appellant because she belonged to the Oraon Tribe. In the name of preserving tribal customs, tradition and cultures, the Scheduled Tribes are excluded from the purview of the Hindu Marriage Act, 1955. However, in reality, under the garb of such preservation, the law leaves the woman open to exploitation and oppression by not recognizing the acts of the husband as an offence.

Cultural and customary practices that are regressive, denigrating to the status of women, and deeply rooted in patriarchal notions of religion or culture have no place in contemporary India and should be eradicated. The Constitution of India upholds the spirit of secularism and directs under Article 44 that the State shall endeavour to bring about a Uniform Civil Code extending throughout India’s landscape.

Therefore, introducing a Uniform Civil Code that is equally applicable to all sections of society, irrespective of their culture, customs or religion- covering various aspects of personal life, shall help maintain equilibrium between the citizen’s constitutional rights while safeguarding India’s diverse religious demography.

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