STATE OF MAHARASHTRA Vs. NARAYANDAS MANGILAL DAYAME

JUDGEMENT

(1.) THIS Full Bench was constituted to consider the constitutionality of certain provisions of the Bombay Prevention of Hindu Bigamous Marriages Act, which is Act 25 o? 1946 and the question arises in the following circumstances. The accused in this case was married in Bombay in 1948. On 16th of May, 1955 he married a second wife at Bikaner. On 5th July 1955 his first wife lodged a complaint with the First Class Judicial Magistrate at Sholapur. The learned Magistrate held that inasmuch as the prosecution was launched after the Act 25 of 1946 was repealed by the Central Act 25 of 1955 which came into force on 18th May 1955, the accused was entitled to an order of acquittal. Against the order of acquittal, the State of Bombay came in appeal in this Court and the matter came before Mr. Justice Shah and Mr. Justice Palnitkar and these learned Judges felt considerable doubt as to whether Radhabai Mohandas v. Bombay State, 57 Bom LR 827 : ( (S) AIR 1953 Bom 439) (A), had been correctly decided, and therefore, they referred the question as to the validity of the Act to the extent that it applies to marriages contracted outside the State of Bombay to a Full Bench.

(2.) NOW, turning to the provisions of the Act, with which we are concerned, Section 3 defines a bigamous marriage and the definition is the ordinary definition of what a bigamous marriage is. Section 4 provides :

(3.) NOW, before we go to the substantial matter which has necessitated this Full Bench, we might dispose of one or two matters which are not of substance or importance. We are in entire agreement with the view taken by the learned Judges who decided 57 Bom LR 827: ( (S) AIR 1955 Bom 439) (A), that Section 8 is intra vires the State Legislature and it is competent to the State Legislature notwithstanding the provisions of the Code of Criminal Procedure to direct that any offence can be tried by any Court in the State of Bombay. We are also in agreement with the view taken by Mr. Justice Shah and Mr. Justice Palnitkar that the learned Magistrate was obviously in error when he held that although the alleged offence was committed when the Bombay Act was in force, the mere fact that the complaint was filed after the repeal of the Act precluded the State from prosecuting the accused. If the accused is guilty and if he has committed an offence, then the mere fact that prosecution is launched after the repeal of the Act which constituted the offence cannot possibly affect the guilt of the accused or the right of the State to prosecute him or the jurisdiction of the Court to convict him. But the real question that we have to consider is whether in the first place by Section 4 the State Legislature can declare a marriage void which has been contracted outside the State of Bombay and the second question is, which is connected with the first, whether the State Legislature can constitute the contracting of a bigamous marriage outside the State an offence punishable by the Courts set up in the State. Now, it is always desirable, if it is possible, to consider any question in the first instance apart from authority and on principle. Now, in order to decide whether the State Legislature can declare a marriage contracted outside its territorial limits void and constitute it an offence, we must consider what is the competence of the Stale Legislature under the Constitution. The Act was passed in 1946, and, therefore, we must look to the provisions of the Government of India Act. The competence of the State Legislature is to be found in Section 99 and that provided that a provincial legislature may make laws for the province or any part thereof. In order to decide what laws a provincial Legislature could make, one had to turn to the 7th Schedule of the Act and the topics on which a provincial Legislature could legislate were set out in List 2 which was the provincial Legislative list and in List 3 which was the concurrent list. List III contained subjects which could be legislated upon both by the Central and the Provincial Legislature. Now, the subjects with which we are concerned in this piece of legislation are criminal law and marriage. Criminal law is Entry No. 1 in the Concurrent List and Marriage is Entry No. 6 in the same list. Therefore, with regard to Criminal Law and Marriage, both the Provincial and the Central Legislature had concurrent power to legislate. But what is important to note and which is underlying the scheme of the Constitution is that the Central Legislature had overriding powers with regard to subjects in the concurrent list. It may also be pointed out what is well-known to any student of constitutional law, that the device of the concurrent list was peculiar to our constitution and it was incorporated in order to bring about uniformity with regard to certain laws all over the country. Laws dealing with crime, laws dealing with marriage and divorce and other subjects mentioned in List III could be passed by the different State Legislatures, but it was always open to the Central Legislature to step in and to put on the statute book a law bringing about uniformity all over the country. Now, it is true that when you are dealing with a Legislature and its competence, you must give the widest connotation to the words used conferring jurisdiction and competence upon a Legislature, and we are in agreement with the Government Pleader that when the Government of India Act uses the expression "make laws for the province or any part thereof" these words must receive at our hands the widest connotation. Within the ambit of the lists, in 7th Schedule, the Provincial Legislature was sovereign and it had the widest powers of Legislation. But it is important to bear in mind that the State Legislature had no extra territorial powers. The Central Legislature was given certain extra territorial powers as is apparent from Section 99 (2 ). Now, under our present Constitution Parliament has been given absolute territorial powers. Therefore, to-day Parliament may enact any extra territorial law. The only limitation on its power is the practicability of the law. If an extra territorial law cannot be enforced, then it is useless to enact it but no one can suggest to-day that a law is void or ultra vires which is passed by the Parliament on the ground of its extra territorially. But even under the Government of India Act, although limited power of extra territorial Legislation was given to the Central Legislature, as far as the provincial legislature was concerned, it had no extra territorial power at all. Therefore the jurisdiction and the competence of the provincial legislature is circumscribed to this extent that although it can legislate with all the amplitude of power with regard to the subjects mentioned in the lists, annexed to the 7th Schedule, the territorial extent of its jurisdiction is circumscribed by the boundaries of the province. It cannot extend a law beyond those boundaries.