bigamy
source: https://www.uihere.com/

“Bigamy is the only crime where two rites make a wrong.”- Bob Hope

Introduction

Marital relationship means the relationship which includes couples living under the same roof following marital obligation to each other, services in the home, love, and affection, sexual relationship, to have children and their upbringing. But this sacred relationship of life has been replaced by Bigamy in most of society.

Bigamy has been a controversial legal and social issue in society. In today’s time as bigamy has become a trend in modern society, everyone is trying to do the same; there has been a lot of confusion regarding the rights of both wives. In India marriage laws except for Muslim marriage law treats bigamous marriage as void and prohibits bigamy. Penal laws of India punish the offense of Bigamy and made it actionable under Section 494 and 495 of IPC. Laws of Bigamy are not discriminatory because it does not make any difference in the religion of either spouse.

So, there should not be any misconception of the fact that no Muslim committing cannot be punished and that no Hindu could be punished. A Muslim wife marrying again during the existence of her first marriage can be punished for Bigamy. A Muslim married under the Special Marriage Act, 1954, commits Bigamy during the existence of the first marriage, is liable to punishment. Other countries that have recognized monogamous marriage treats bigamy as an offense.

Definition

Bigamy as per different dictionaries is defined as- Bigamy is a criminal offense if it is committed intentionally or knowingly. It is an act of marrying again while legally married to one.

It is an act of marrying again or entering into a marriage with another person while married to one person legally. A legal separation of married persons does not change their status as couples. In other words, a person divorcing his or her partner is considered to be legally married until such a divorce becomes final. Bigamy laws do not apply to persons in cohabitation or de facto relationship or the people who have entered into such relationships where one is already legally married. Moreover, if that marriage for any reason is void then the couples are not said to be married. And, they have the liberty to marry another without any bigamy laws.

It is treated as a crime so as to secure and maintain marital happiness for people of monogamous communities. Thus, an offense of Bigamy can only be committed by people whose first marriage exists as a hindrance to others. Bigamy is actionable under Section 494 and 495 of the Indian Penal Code, 1860.

The nature of the offense of Bigamy under Section 494 and 495 of IPC is compoundable, bailable and non-cognizable. In the case of  Narotam Singh v. State of Punjab,[1] it was held that the offense is a non-compoundable offense by mutual consent of both the parties. After local Amendment in the State of Andhra Pradesh in 1992, the offense was made cognizable, non-bailable and non-compoundable.

Bigamy and Indian Laws

Bigamy or marrying twice is a crime. Muslims are allowed by their personal laws to have married four times. In India bigamy is considered as an offense under Section 494 and 495 of IPC. The chapter dealing with the offenses related to marriage under IPC includes two provisions related to bigamy:

  • The first applies to married persons marrying again without disclosing the fact of his first marriage to the second spouse.
  • The second is who marry again by keeping the second spouse in dark regarding first marriage.

Section 494 of IPC says that: Marrying again during lifetime of husband or wife:

Whoever, having a living wife or husband, marries in any case in which such marriage is void by any reason of its taking place during the lifetime of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine.

In the case, Karim Baksh v. Emperor[2], it was held that if the accused believed that his first marriage was set aside by the competent Court, then he will not be punished for bigamy.

Where a person is indulged into bigamy by misguiding the second spouse, then Section 495 is applicable which says: Same offense with concealment of former marriage from person with whom subsequent marriage is contracted:

Whoever commits the offense of Bigamy by disclosing the fact of the former marriage from the person with whom the subsequent marriage is contracted, shall be punished with imprisonment of either description which may extend to 10 years and shall also be liable to fine.

Elements of Section 494

To constitute an offense of Bigamy following elements are required:

The first marriage of accused shall be valid:

The first element for the offense of Bigamy is that accused must have solemnized his or her first marriage validly. The offense cannot be said to exist if the first marriage of the accused is void. Moreover, if the first marriage took place in any other State or Country then it should be done in accordance with the laws of that State or Country for its validity. For a valid marriage, certain ceremonies need to be done.

The ceremonies depend on the customs of communities to which each spouse belongs. The validity of marriage in the case of Jains, Sikhs, Buddhists, and Hindus are governed by the Hindu Marriage Act, 1955. In the case of Jews and Muslims, it will be determined by their religious usages. For Christians, it will be governed by the Christians Marriage Act, 1872. AS for the case of Parsis, the Parsi Marriage and Divorce Act, 1936 will be applicable. If the first marriage is not valid then no offense could be committed.

Accused must have married again:

The accused doing second marriage without dissolving the first marriage is essential to constitute Bigamy. In such cases the second marriage itself becomes void. The second marriage should be legally valid marriage so that it cannot come in the ambit of Section 494. In the case of Bolaram Baruti v. Mat. Suriya Baruti,  it was held that the prosecution has to show by evidence that second marriage has been in accordance with the customs and laws of both the spouses.[3]

When the second marriage becomes bigamous: 

There is a difference between first marriage and second marriage due to which complainant can file a complaint under Section 494 of IPC. For the first marriage to be legally valid:

  • Firstly, there should not be a legal barrier to the contracting of such marriage.
  • Secondly, the marriage was performed according to the ceremonies of each spouse.
  • Finally, if the marriage is not found to be legally valid as per the above points, no offense of Bigamy can be said.

Cohabitation with the second wife

Cohabitation under second marriage is not necessary to constitute bigamy except under particular status. Except under particular status have a different effect. To constitute Bigamy the necessary condition is solemnizing the second marriage and not cohabitation with the second wife.

First marriage to be in existence: The first spouse must be living and must be in knowledge to the accused. If the person knows that his or her first spouse is living but still gets involved in second marriage then Section 494 will apply here. If the first marriage was dissolved by divorce or death of a partner before the second marriage took place, no Bigamy will be but an ineffective divorce or fraudulent divorce is no defense. The Court in a case, Smt. Vidya Tomar  v. State of Rajasthan held that the second marriage during the existence of first marriage is an offense of Bigamy under Section 494 of IPC.

Other Provisions

The anti-bigamy provisions of IP are applicable to all marriages which are governed by:

Special Marriage Act, 1954:

As per section 4(a) of the Act, an important condition for the validity of a marriage is “neither party has a living spouse.” Monogamy is important in this Act. For Bigamy, there are two provisions under this Act. If a person is already married and performs a marriage fraudulently then Section 43 will apply. Section 44 deals with punishment for Bigamy.

The provisions if this Act for Bigamy is applicable to every marriage irrespective of the religion of the couples. The Court in a case, S. Radhika Sameena v. S.H.O. Habeeb Nagar Police Station[4] held that if a Muslim marries under Special Marriage Act rather than personal laws then anti-bigamy provisions will be applicable to him.

Foreign Marriage Act, 1969:

Monogamy is an important condition in this Act. This Act provides for marriage in foreign countries between an Indian and a foreigner or two Indians. Section 4(a) says that “neither party has a living spouse.” Section 19 of the Act applies to both marriages. In other words, the provisions of the Act are applicable to every marriage irrespective of the religion of the couples.

Christian Marriage Act, 1872:

Bigamy is prohibited by Christians. This Act is applicable to all marriages among Christians. Section 4 says that “every marriage of Christians has to be solemnized under the provisions of this Act when both parties to the marriage are Christians or when one of them is a Christian and other is a non-Christian.

Marriage under this Act can either be solemnized by being present in Marriage Registrar or by Minister of Religion of Church.

Parsi Marriage and Divorce Act, 1936:

The Parsi Marriage and Divorce Act, 1936 prohibits bigamy under Section 4 and 5 of the Act.

Hindu Marriage Act, 1959:

Section 5(i) says an important condition for the validity of a marriage is “neither party has a living spouse.” Violation of this condition makes the marriage null and void and either party can file a petition for a decree of nullity under Section 11. Section 17 of the Act makes a bigamous marriage null and void and makes it punishable under Section 494 and 495 of IPC.

Abetment of Bigamy

In the case of Malan v. State of Bombay, it was held that the permission to allow premises of one to be used for the purpose of marriage does not mean he has abetted the performance of marriage[5]. In the case of Muthammal v. Maruthalal, it was held that just because the mother of the first accused was present at the time when the first accused was marrying second accused, it does not mean that she was there to abet the offense committed by the first accused.[6] To prove the offense of bigamy under section 494 read with section 109,

Firstly, it has to be proved that relatives or family members were present at the time when the main accused was marrying and knew the couple as husband and wife and there is no valid reason to dissolve the marriage.

Secondly, they should perform some in the actual celebration of the second marriage.

Presence at the time of the commission of a crime with the awareness that a crime is about to commit does not come in an intentional aid. In the case of B.Chandra Mani Kyamma v. B. Sudarsana Rao alias Saleem Mohammad, it was found that to be present at the crime scene and to be aware that a crime is to be committed does not mean abetment of that offense unless the persons present there holds some position of rank or influence in such way that their permission is a direct encouragement.[7] The priest who performs the bigamous marriage is an abettor under setion494 and 109 of IPC.

Defense to the charge of Bigamy

Except for the exception of Section 494, there can be other defenses to charge of bigamy. In a case, R v. Tolson,[8] where wife believed her husband to be dead as her husband was absent for more than 6 years and then she remarried but her husband was alive. He sued her for bigamy. The Court held that she believed that her husband was dead and did a reasonable act. She was given defense to charge of bigamy.

Judiciary Approach

Shantimani Dei v. Lingaraj Moharana[9]: The Supreme Court held that for bigamy case considering the fact of second marriage the essential elements must be proved. Marriage by an accused is not evidence for proving marriage in the case of bigamy or adultery.

The case of Paresh Chaturdas Patel v. State of Gujarat,[10] deals with Sections 406, 498-A, 504, 506(2). In this case, the petitioner made allegations on Petitioner (her Husband) regarding bigamy by contending that she is the legally wedded wife of Petitioner and the marriage was performed according to law and since the marriage has not ended, the petitioner has remarried with another woman. So, the husband was held guilty of bigamy under Section 494 of IPC.

Padullapath Mutyala v. Subhalakshmi[11]: The Court held that if marriage is solemnized as per Section 7(2) of Hindu Marriage Act, 1959, which talks about Saptapdi ceremony then the marriage will complete but taking the seventh step around the sacred fire cannot be evidence to prove bigamy case.

Sarla Mudgal v. Union of India[12]: The Supreme Court held that every bigamous marriage of Hindu who are converted to Islam would be void and hence punishable under Section 494 and 495 of IPC.

Lily Thomas v. Union of India[13]: Where husband converted to Islam to marry another woman, it was held that conversion does not dissolve the first marriage and husband was liable for Bigamy.

Conclusion

Considering the legal status of bigamy, most of the countries have prohibited polygamous marriage and treat bigamy as an offense. Such a case is found in some of the States of the United States. Though it is considered as an offense many wives are unable to collect the evidence and show it to Court for questioning the validity of second marriage by the husband because the Court demands hard proof.

Though there are many strictly prohibiting laws in India against Bigamy it is still found in the society. Measures need to be taken to prevent it. And, punishments need to be made harsh at least in the case of Hindus this should be. This will protect the right of aggrieved party mainly women.


Author:

sneha srivastava Sneha Srivastava | Banasthali Vidyapith, Rajasthan

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