Chains do not hold a marriage together. It is threads, hundreds of tiny threads, which sew people together through the yearsSimone Signoret
Black’s Law Dictionary defines marriage as “the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex”. In the case of Pinakin Mahipatray Rawal v. State of Gujarat, Supreme Court held that, Marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on.
Definition under the Indian Penal Code
Section 494 of the Indian Penal Code defines “Bigamy” which can be stated as follows:
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.
Classification under the Code of Criminal Procedure
Under the Schedule 1 of the Code of Criminal Procedure, the offence of Bigamy could be defined as follows:
|Marrying again during the life-time of a husband or wife||7 years and Fine|
|Non-Cognizable||Non-Bailable||Magistrate First Class|
Section 494, IPC, inter alia, requires the following ingredients to be satisfied, namely,
- The accused must have contracted first marriage;
- He must have married again;
- The first marriage must be subsisting;
- The spouse must be living.
A combined reading of Sections 17 of Hindu Marriage Act and Section 494 of the Indian Penal Code require that to make out a case for bigamy the following essential ingredients must be established as laid down in Nagalingam v. Sivagami4:
- The accused must have contracted the first marriage
- Whilst the first marriage was subsisting, the accused must have contacted a second marriage.
- Both the marriages must be valid.
What is important to keep in mind is that not only the first but the second marriage must also be a valid marriage in accordance with the Hindu Marriage Act.
The accused must have contracted the first valid marriage.
The first essential element of the offence of bigamy under Section 494, is a valid marriage entered into by accused prior to the alleged bigamous marriage; thus, an indictment for bigamy cannot be sustained where the prior marriage relied on was void, as where it was itself bigamous by reason of the existence of a valid marriage entered into still earlier. In order to constitute a valid marriage certain ceremonies have to be necessarily gone through. What ceremonies are necessary depends upon the custom of the community to which the parties belong.
If the first marriage is not a valid marriage no offence will be committed by contracting a second marriage. For instance, if A marries B, a person within prohibited degrees of affinity, and during B’s lifetime marries C, A has not committed bigamy. In order that an offence of bigamy can be committed, there must be at the time of the second ceremony of marriage a previous valid subsisting marriage
Prima facie, the expression ‘whoever… marries’, under Section 494, must mean ‘whoever…marries validly’ or ‘whoever… marries and whose marriage is a valid one’. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises.
In the case of State of H.P. v. Rajinder Kumar, court held that the statement of wife that accused husband harassed her for dowry and even after his demands were met he had solemnized second marriage. Pandit appeared as witness and stated that he had performed marriage of accused with another woman according to Hindu customs but nowhere stated ceremony of ‘Saptapadi’ was performed. Saptapadi, ceremony required to prove Hindu marriage. So without the proof of marriage offence of bigamy not made out.
He must have married again.
A subsequent marriage, or, more accurately, subsequently going through a form of marriage, is essential to the offence under Section 494. A subsequent marriage is an indispensable element of the offence of bigamy, or in other language, alone constitutes the offence, such marries is, of course, always void. The offence of bigamy is directed against the second marriage. The second marriage, therefore, must be legally valid marriage so as to come within the mischief of Section 494. Prosecution is under an obligation to satisfactorily establish by evidence that the second marriage has been solemnized in accordance with law or custom which is applicable to the parties.
In the case of Kannan v. Selvamuttukani, husband and wife takes divorce by mutual consent. But on appeal by wife, decree of divorce set aside by appellant court. Husband contracting second marriage after about one month of setting aside decree of divorce. Evidence on record showed that husband was not aware of setting aside decree of divorce when he got
married. The court held that no offence under Section 494, Indian Penal Code, 1860, made out. The word ‘Solemnize‘ means in connection with a marriage’ to celebrate the marriage with proper ceremonies and in due form.
In the case of Kanwar Singh v. NCT of Delhi, husband contacting second marriage during subsisting of first wife. A criminal complaint under Section 494, Indian Penal Code, 1860, made against husband, second wife and other relatives who attended the marriage. Summoning offence under Section 494, Indian Penal Code, 1860, is committed by either spouse, who remarries during subsistence of a legal and valid marriage. The law prohibits and makes punishable a husband who marries for the second time during the
life time of the first wife. It is a settled principle of law that in order to attract the penal provision of Section 494, it must be shown that the subsequent marriage was solemnized upon due performance of the essential ceremonies upon which only a marriage becomes a valid marriage.
The First marriage must be subsisting
The first spouse must be alive at the time of the second marriage, to the knowledge of the accused. If the prior marriage was dissolved, as by divorce or annulment, before the second took place, there is no bigamy, but a fraudulent or otherwise ineffectual divorce is no defense. Since the prior marriage must be still subsisting, the first husband or wife must be alive at the time of the second marriage. Accused has been required to have knowledge that the first spouse is still alive, and the requirement of such knowledge has been incorporated in the definition of bigamy.
In the case of Smt. Vidya Tomar v. State of Rajasthan and Others, held that second marriage during subsistence of first marriage is offence under Section 494, Indian Penal Code, 1860. That there was a first marriage and that it had not been declared void, as provided in the exception, does not suffice to show that the marriage was a subsisting marriage at the time the
offending marriage took place. For, it is provided in the second clause of the Section 494, that a person not heard of for seven years may be presumed to be dead. If, therefore, the husband or wife have separated under conditions which create the presumption, the other party may validly contract a second marriage, and such marriage would not be void even though the
husband or wife are, then still alive.
The Exception speaks only of the court declaring a marriage void, but a marriage may also be dissolved by proceeding under the Divorce Act, in which case the court dissolves the marriage and gives the parties freedom to re marry after such dissolution.
The spouse must be living
It must be shown that the husband or wife is alive at the date of the second marriage.
Both the marriages must be valid
The Supreme Court has observed that prima facie, the expression ‘whoever‘… marries‘ must mean ‘whoever….marries validly‘, or ‘whoever— marries and whose marriage is a valid one. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person arises. If the marriage is not a valid marriage, it is no marriage in the eye of the law. The word ‘solemnize‘ means ‘to celebrate the marriage with proper ceremonies and in due form’. Unless the marriage is ‘celebrated or performed with proper ceremonies and due from’ it cannot be said to be ‘solemnized‘. It is essential for the purpose of Section 17 of the Hindu Marriage Act, 1955, that the marriage to which Section 494, applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form.
In the case of Azad alias Naresh R Azad v. State of Bihar & Another, court held that offence under Section 494, Indian Penal Code, 1860, may be inquired into or tried by a court within whose local jurisdiction the wife by the first marriage has taken up permanent residence after the commission of offence.
Exceptions to the rule of 494 IPC
The exception speaks of (1) the first marriage having been declared void by a court; and (2) seven years ‘absence on the part of a spouse in a manner not heard of by the other party. Under the English law there is third element, viz. bona fide belief in the spouse’s death, which is not adopted in the exception. The proviso to this exception confines its application to cases in which the accused before the second marriage discloses the real state of the case, and such knowledge as he or she may have concerning the circumstances, to the person about to be married.
If it is proved that the accused and his first wife have lived apart for seven years preceding the second marriage, it is incumbent on the prosecution to show that during that time he was aware of her existence; and, in the absence of such proof, the accused is entitled to be acquitted.
Where a woman, who having the means of acquiring knowledge of the death of her first husband, does not make use of them, and marries, she commits bigamy. Under this exception it is incumbent on the person contracting the second marriage, if it is contracted within seven years, to inform the other party about the first marriage. It is ordinarily on the prosecution to establish all the elements necessary for proving the offence of bigamy.
The accused may them plead the exception, and if he can prove that he had not heard of his spouse for a period of seven years, he would be acquitted, unless the prosecution prove the contrary as a fact.
Abetment in Bigamy
Mere permission to allow one’s premises to be used for the purpose of the marriage does not in itself lead to the conclusion that the person has abetted the performance of the marriage. Just because the mother of the first accused along with petitioners 2, 3, 5 and 6 was present at the time when first accused married the second accused it cannot be said that she was there only to commit abetment of the offence committed or committed by the first accused.
For proving an offence punishable under Section 494, read with Section 109, Indian Penal Code, 1860, it has to be established
- First that the family members or relatives of the principle accused had either attended the first marriage or knew the couple as husband and wife and had no reason to believe that the marriage has been dissolved.
- Secondly, they should do some act in the actual celebration of the second marriage, which may be considered as an act of abetment such as putting knot in token of the due performance of the marriage
In the case of Smt. Rupa & Other v. State of U.P. & Another, there is no allegation that. applicants engaged themselves in any criminal conspiracy to commit an offence under Section 494, Indian Penal Code, 1860.
It is the case of applicant No. 1 that she did not know about any prior marriage of ‘R’ with opposite party No. 2. Her presence at the time of incident has been falsified. Court held that, in absence of any knowledge of prior marriage of ‘R’, applicants cannot be held guilty for offence under Section 494, read with Section 109, Indian Penal Code,1860.
Conversion and Bigamy
Where the accused, belonging to a scheduled caste, had converted himself to Buddhism and contracted a second marriage, and the prosecution was successful in proving that both the marriages had been performed according to customary rites and the second marriages had been performed according to customary rites and the second marriage had been contracted while the first was subsisting, the accused was rightly convicted and sentenced for offences punishable under Section 494 and 109, Indian Penal Code, 1860.
In Sarla Mudgal v. Union of India, after considering a number of decisions on the point, the Supreme Court held that the second marriage of a Hindu husband after embracing Islam is violative of justice, equity and good conscience. Such marriage would also be void and attract the provision of the Section 494. The Court observed:
“Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law.”
The court further observed that the second marriage of an apostate-husband married under the Hindu Marriage Act, 1955, would be in violation of the rules of equity, justice and good conscience, as also those of natural justice. The Supreme Court concluded that:
“The interpretation we have given to Section 494, Indian Penal Code, 1860, would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. The result of the interpretation, we have given to Section 494, Indian Penal Code, 1860, would be that the Hindu
law on the one hand and the Muslim law on the other hand would operate within their respective ambit without trespassing on the personal laws of each other.”
In Lily Thomas v. Union of India, an apprehension expressed that in view of judgment of Sarla Mudgal, men having undergone second marriage under Muslim law after conversion would be liable to be convicted without any further proof, was held to be without substance inasmuch as the person seeking conviction of the accused for a commission of offence under
Section 494, is under a legal obligation to prove all the ingredients of the offence charged and conviction cannot be based upon mere admission made outside the court. To attract the provisions of Section 494, the second marriage has to be proved besides proving the previous marriage. Such marriage is further required to be proved to have been performed or celebrated with proper ceremonies.
Bigamy and award of compensation
In the case of Laxmi Devi v. Satya Narain, the court held that in absence of proof of Homa and Sapatapadi the factum of second marriage cannot be held to have been made out, though it was concluded that the first respondent is undoubtedly living with Vimla as Husband and wife, merely because the appellant is not in a position to prove the factum of second marriage punishable under Section 494, Indian Penal Code, 1860, that does not mean that the appellant should be left in the lurch. The Supreme Court quantified compensation at Rs. 25,000/- to be paid by the first respondent – accused to the appellant wife.
In the case of Ashoka Hurra v. Rupa Ashok Hurrarupa Bipin Zaveri, court observed that second marriage during the pendency of proceeding comes under Section 494, Indian Penal Code, 1860 and ordered of entire sum of rupees ten lakh by the appellant (Ashok Hurra) to the respondent, Rupa Ashok Hurrarupa Bipin Zaveri.
Section 495 of the Indian Penal Code
Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.—Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Bigamy by Deceit
Section 495, Indian Penal Code, 1860, merely prescribes an enhanced punishment for the offence of bigamy when it is committed by a person who conceals from the other person with whom he contracts the second marriage the fact of his previous marriage. Now, since the offence is in essence bigamy it follows that all the elements necessary to constitute that offence must be present here also.
For instance, of the two marriages, the previous marriage must have been a valid marriage, and a marriage which was known to be a subsisting at the time of the second marriage. If, therefore, the previous marriage was invalid, or had been lawfully dissolved, its nondisclosure is wholly immaterial, for the second marriage being valid there is no offence of bigamy, and except in a prosecution for bigamy the fact of such non-disclosure is immaterial.
The offence of bigamy punishable under Sections 494 and 495, Indian Penal Code, 1860, materially differs from the corresponding rule of English law, under which monogamy being the universal practice, the rule is simpler. But under Section 494, Indian Penal Code, 1860 the criminality of the second or subsequent marriage depends upon the practice of the caste or race to which the accused belongs.
From the days when a Hindu could marry as many wives as he would like to and a Muslim can even now marry at a time four wives, the society in recognition of the respectable position of the women has reached a stage where monogamy is the order of the day. Polygamy is statutorily barred in the case of Hindus and a recent decision of the Supreme Court would make it economically impossible for a Muslim to marry more than one wife. Equality of sex or eschewing sex discrimination needs tightening up of law which prohibits second marriage in the life time of the first spouse.
Bigamy is a serious offence and no leniency should be shown29.
However, while awarding sentence, the court may take into account facts and circumstances of the case, such as, fact of irretrievable break down of first marriage; fact of birth of a child by second wife; long lapse
of time between the marriage and final disposal of the case; the fact that the accused is merely an abettor, etc.
Where the accused as a young peasant and his first marriage was in disarray irreparably and he married a second time because of the natural need of a comrade – at hand as also to help him pursue his vocation of agriculture, the sentence of nine months’ imprisonment was reduced to twenty-nine days imprisonment already undergone but the sentence of fine was increased from Rs. 200 to Rs. 2,000.
In Sarla Mudgal (supra) and Lilly Thomas (supra) the court expressed its distress over the Governments failure in enacting a uniform civil code to end discrimination among various religious communities in the areas of marriage, succession and property and observed that such a code would help in removing contradictions based on religious ideologies and such matters of secular characters cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution of India. The Supreme Court of India settled the law once for all in its Sarla Mudgal ruling of 1995 affirmed in Lily Thomas case of 2000. We are in complete
agreement with the thinking of the Supreme Court. The verdict that a married non-Muslim even on embracing Islam cannot contract another marriage without first getting his first marriage dissolved is undoubtedly in conformity with the letter and spirit of Islamic law on bigamy.
In any case, this is now the inviolable law of India… whatever one may erroneously presumethe Islamic law to be. Unfortunately this law as settled by the Supreme Court is now widely known to the public at large and is being constantly violated in numerous cases. The need of the hour, therefore, is to turn to apex court’s ruling in to a clear legislative provision inserted into all matrimonial law statutes of the country. Though these rulings were handed down in the context of the Hindu Marriage Act, 1955, they will apply to all marriages governed by the other family – law statutes that are Pari materia.
Author: Vaibhav Goyal,University Institute of Legal Studies, Panjab University Chandigarh