“Penal law of India punishes the offence of what is known in English Law as ‘Bigamy’. Penal law of bigamy is not discriminatory since it makes no reference to the religion of either spouse.
HISTORICAL PERSPECTIVE IN INDIA
Monogamous marriage has been the norm since Vedic times, with one exception: polygamy. However, the wife who was married first was the only wife in the sense of the word. According to one of Manu’s texts, it was permissible for a man to marry another woman after his first wife passed away. Another set of texts justifies a husband to marry another woman. However, it is only when a woman is prohibited or vicious that she can be replaced and a second marriage can be valid, as well as if she consents.
Section 494 of Indian Penal Code, 1860
Marrying again during lifetime of husband or wife. — 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.
Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
Hindu Marriage Act, 1955, Section 17
Punishment of bigamy.—Any marriage between two Hindus (including Buddhist, Jaina or Sikh) solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly.
SCOPE OF SECTION 494
The law treats bigamy as an offence in order to ensure conjugal happiness among those who belong to monogamous communities. Thus, an offence under section 494, Indian Penal Code, 1860, could only be committed by persons whose previous marriage operated as a bar to another. So, for all practical purposes, this section when enacted, applied only to Christians. Subsequent legislation, however, has altered the position. “The Special Marriage Act, 1954, and marriages solemnized under that Act are subject to the provisions of this section. The Hindu Marriage Act, 1955 makes monogamy the rule for all Hindus, Buddhists, Jains and Sikhs and the provisions of this section will consequently apply to their marriages also.” “The provisions of Section 494 is attracted when a person marries after the commencement of the Hindu Marriage Act, 1955, when he a wife living.”To sum up, this section now applies to all the communities in India except the Muslims.
“It will be noticed that section 494, makes no reference to intention, knowledge, fraud or deceit, but constitute the mere contracting of second marriage a crime.” It is then impossible that a person may offend against the rule without being fully conscious of it. “But the rule is enacted in the interest of the peace of society and the mens rea is furnished by the knowledge of the voidability of the ssecond marriage necessarily implied in one who contracts it, which might at first appear conflicting and contradictory. Of course, this is the very essence of the crime, for if the second marriage is not void, criminal law cannot punish what the civil law does not prevent to.”
The voidability of the second marriage depends upon the validity of the first marriage, and upon the fact that the second marriage was a valid and sufficient marriage, but for the existence of the first marriage. The validity of a marriage depends upon –
• The religion of the parties
• Their domicile
• The performance of ceremonies constituting the marriage
“In case of Krishna Kanta Nag v State of Tripura, wife gives complaint under section 494, IPC that her husband contracted second marriage during her lifetime. The parties professed Hindu religion. Wife could not prove that second marriage was performed in accordance with Hindu rites and ceremonies there was thus, no valid marriage. So, husband not guilty of offence under Section 494 and the conviction was set aside.”
Section 494 does not apply to Muslim males, who are allowed to marry more than one wife. But by Section 17 of the Hindu Marriage Act, 1955, Section 494, applies to Hindus. “The combined effect of Section 17 of HMA and Section 494, IPC is that when a person contracts a second marriage after the coming into force of the Hindu Marriage Act, 1955, while the first marriage is subsisting, he commits the offence of bigamy.” “Section 494 applies to Muslim females and to Christians and Parsis of the either sex.”
NATURE OF OFFENCE
“The offence under Section 494 of the Indian Penal Code is non-cognizable, bailable and compoundable by the aggrieved spouse with the permission of the court. That the offence is compoundable by mutual consent of the parties was affirmed in Narotam Singh v State of Punjab.”
“In the State of Andhra Pradesh, however, by a local amendment of 1992 the offence under Section 494 was made cognizable, non- bailable and non-compoundable” The offence under Section 495 of the Penal Code is non-cognizable, bailable and – unlike that under Section 494 — non compoundable. Notably, in Andhra Pradesh this offence too has been made cognizable and non-bailable.
IPC PROVISIONS IN ACTIONS
“Bigamy by women is very exceptional in the society, but bigamy by men is indeed rampant. However, since the anti-bigamy provisions of the Indian Penal Code are (except in Andhra Pradesh) non-cognizable most cases of the offence of bigamy remain unpunished. The aggrieved first wives of all communities silently suffer the miseries caused by the practice of bigamy.”
There is also a trend in the society to use devices, supposed to be ‘legal’, to escape application of the IPC provisions. Among these are holding incomplete and defective marriage ceremonies, non-marital cohabitation and fake change of religion. With the sole exception of Andhra Pradesh, nowhere have any changes in the IPC provisions or the related procedural law been yet considered in order to improve upon the working of the said provisions.
Who can file complaint
Only a person aggrieved by his or her spouse contracting the second marriage can file the complaint. In the case of the husband, only the husband, except where he is serving in the Armed Forces and cannot get leave to file the complaint.
In the case of the wife, she herself or her father, mother, brother, sister, son or daughter or her father’s or mother’s brother or sister, or with the leave of the Court any other person related to her by blood, marriage or adoption.
COURT RULINGS ON BIGAMY
A. Can a person convert his religion for contracting a second marriage?
i. Sarla Mudgal v. Union of India (1995 AIR 1531 SC)
The Supreme Court of India in its landmark judgment held that “where any man (not Muslim initially) converts his religion into Islam for the sole purpose of contracting a second marriage without legally divorcing his first wife ), the marriage shall be regarded as void and illegal and he shall be punished in the similar manner as he would have been punished had he not converted his religion.”
Such person shall be punishable with the imprisonment and fine and the punishment provided under section 494 shall be non- compoundable with the punishment given in section 495. The second wife shall not be entitled to any kind of right or share in the husband’s property, but she can claim interim maintenance from her husband.
ii) In Laxmibai v. Ayodhya Prasad
It was held that ‘wife’ and ‘husband’ used in Section 24 of the Hindu Marriage Act are not be given strict literal meaning. The expression should mean a person claiming to be a wife or a husband of the party constituted.
B. The requirement of Valid proof of such Bigamous Marriage:
iii) In Kanwwl Ram and others v. The Himachal Pradesh Administration.
On the judgment, it was held that “the witnesses have not proved that the essential ceremonies had been performed in the second marriage. It was contended that an admission made by the accused regarding the second marriage is conclusive of the fact of a second marriage has taken place and that without any other evidence a conviction could be based on such admission”.
In this case, the Supreme Court reiterated the basic principles laid down is the earlier cases decided on “Bigamy” stating-
a. For the prosecution of bigamy, the second marriage has to be proved as a fact and it must also be proved that the necessaryceremonies had been performed.
b. Another Suggestion laid down by this decision, which states that the admission of marriage by an accused is no evidence of marriage for the purpose of proving, an offense of bigamy. This Court rejected the said contention stating “it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it must be proved.
iv. Priya Bala Ghosh Vs Suresh Chandra Ghosh 2 S.C.R. 837:
It was held that if the alleged second marriage is not a valid one according to the law applicable to the parties, it will not be void by
reason of its taking place during the lifetime of the husband or the wife of the person marrying so as to attract s. 494 I.P.C.
Again in order to hold that the second marriage has been solemnized necessarily so that s. 17 of the Act could be attracted, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form. In the said decision this “Court further decided the question whether it shall be necessary to establish that with respect to the alleged second marriage the essential ceremonies shall be required to be performed for valid marriage” has been answered in affirmative.
v) Trailokya Mohan v State of Assam – AIR 1968, Assam 22
Facts: The petitioner already had a wife living namely Subarna Bala Nath, but he got married a second time to Shefali Debi and thus committed the offense of bigamy punishable under the IPC read with the provisions of the HMA 1955 and the accused himself admitted the case under section 342 of the code of criminal procedure that he did marry B during the lifetime of A and the admission was corroborated by oral evidence of witnesses who in their cross-examination did not take a stand that the second marriage was invalid.
Thus, it was held that the presumption of a valid marriage and where a strong satisfactory and conclusive evidence was present to rebut the presumption was totally lacking in the case, it must be held at a valid second marriage was solemnized and in such circumstances, the basis of the admission made by the accused could be relied upon.
It is well known that in a country with diverse culture, language, and religious beliefs, people often take advantage of the legal loopholes. For example, there is a case of a man who changed his religion to make sure he could get married fraudulently so that he could keep two wives simultaneously. He changed his religion to Islam where he is allowed to have 4 wives at once. Time and again, it has been shown that no religion believes in breaking the moral standards. All religions emphasize that women should be loved, respected and supported, and not used as a tool for manipulation and exploitation.
The prevalence of “Bigamy” has decreased significantly in recent years, and a decrease in such crimes against women could only result in the creation of a perfect society to enjoy.