Bigamy is an offence under Sec. 494 of IPC and is applicable to both husband & wife. The law against bigamy forbids any person from marrying again during the lifetime of their husband or wife.
Section 494 states that:
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.
The section comes with well-defined exceptions to the rule of bigamy.
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.
The offence is made cognizable, bailable, compoundable and triable by Magistrate of first Class.
Essential ingredients of bigamy:-
(a) The accused spouse had already married.
(b) That while first marriage was subsisting.
(c) That both marriages have been held valid in the sense that the essential ceremonies, such as Dutta Homa & Saptpadi required by the personal laws governing the parties had been duly performed (in case of Hindu).
In Bhaurao Shankar Lokhonde v. State of Maharashtra the respondent was convicted for bigamy under Sec. 494lPC read with Section 17 of Hindu Marriage Act, 1955.
SCOPE: This section makes bigamy & offence in case of all Indians irrespective of religion of either sex, namely Hindu, Christians, Parsis except Muslim Males etc.
Illustration: A Muslim male marrying a fifth wife during continuance of four earlier marriages is punishable under Section 496 IPC.
In Radhika Sameena Vs. SHO Habeeb Nagar Police Station it was observed that a Muslim male married under Special Marriage Act, 1956 would be guilty under Sec. 494 IPC if he enters into another marriage under Muslim Law. Since here the marriage was conducted not under Muslim Law but under the Special Marriage Act thus, the provisions of the Special Marriage Act shall be applicable and not of the Muslim Law, hence respondent’s marriage was held void.
When the accused was already married and the first marriage was subsisting: the first and the foremost condition for application of this section is that the accused is already married. There must be a husband or wife available at the time of .second marriage. The first marriage should be valid as per the law.
In Gopal Lal v. State of Rajasthan, it was held that while the first marriage is valid, the second marriage must have been properly solemnized according to the customs of the parties. It is only then the offence falls under this section. If the first marriage is invalid then, no offence shall be constituted.
Illustration: If A marries B, a person within the prohibited degrees of affinity, and during B’s lifetime marries C. Then A does not commit any offence.
The section cannot be applied in cases where second marriage is allowed.
In Priya Bala Ghosh v. Suresh Chandra Ghosh, it was held that where second marriage is allowed by the law or customs of the parties then no offence is committed.
Thus to attract the provisions of this section both the marriages should be solemnized as per the proper customs. If a man and a woman merely live together and do not give each other status of husband or wife, then it does not amount to marriage.
Admission of marriage by the accused is not evidence for the purpose of proving marriage in case of bigamy; this was observed in Kanwal Ram’s case.
In Baby Kar v. Ram Rati, it was held that the second marriage was not proved showing saptapadi, mere production of certificate was not sufficient to prove that marriage was performed validly by performing all the essential ceremonies.
A person can take divorce and then get re-married as divorce dissolves the valid marriage. In even case of death of one of the spouse the other person can re-marry. In case of Santosh Kumari v. Surjit Singh it was held that divorce dissolves valid marriage; the parties obtaining such dissolution can remarry.
Effect Of Conversion Of Religion
Conversion of religion does not give a license to commit Bigamy:
Conversion cannot be used as a way out for committing second marriage while the first one is still valid. This is to keep a check on those who may use the shield of religion to engage into nefarious activities.
In Sarla Mudgal v. Union of India, AIR 1995 SC 1531, the Apex Court ruled that change of religion does not permit a person to defeat the provisions of law and give a license to bigamy. The question was whether the apostate (convert) husband would be guilty of committing the offence of bigamy under Section-494 of I.P.C. It was held that second marriage of the apostate would be in violation of rules of natural justice and as such it would be a void marriage punishable under Section-494 of LP.C.
There has to be a necessary mens rea to constitute the offence of bigamy. In Sankaran Sukumaran v. Krishnan Saraswathy, a divorce deed was entered between the accused and his wife and they lived separately. They had liberty to marry again. The Court observed that the recitals of the deed clearly showed that the parties were no longer husband and wife. In such circumstances the accused had contracted a second marriage, acting on a bona fide belief that his first marriage has been put to end. Thereby, he did no wrong act.
Bigamy under English Law.
In Tolson Vs. Tolson, the accused i.e. Mrs. Tolson was prosecuted for the offence of bigamy for contracting second marriage during the lifetime of her husband. The House of Lords quashed conviction and held that reasonable belief in good faith in the death of the first husband negates the mens rea. Thus the accused is not guilty of bigamy if he believed on reasonable grounds that:
a. His first wife is dead.
b. His first marriage was void.
c. His first marriage has been annulled.
A person is exempted from the offence of bigamy under Section 494 of I.P.C if:
1. When first marriage has been declared void by a competent court – If the court with the competent jurisdiction declares the – marriage null and void then the parties are free to marry again.
2. When husband or wife has been absent continuously for a period of seven years- For contacting into second marriage the other party must have been continuously absent for a period of seven years but if the marriage takes place within seven under a bona fide belief based on reasonable grounds that the former consort is dead, no offence is committed.
3. The absent spouse must have not been heard of by the other party as being alive during that period- In case of Curgerwan, it was proved that the accused and his first wife lived apart for seven years preceding the second marriage. It is on the prosecution to prove that during that time he was aware of her existence and in absence of such proof the accused is entitled to be acquitted.
4. The party marrying must inform of the fact of absence to the person who he or she marries – In Enai Beebee (1865)4 WR (Cr)25, it was held that it is essential for the person contracting into second marriage to inform about his first marriage.
5. A valid divorce has taken place as per the law of spouse.
Thus this section is basically to root out polygamy from the country In Indu Bhagya Natekar v. Bhagya Pandurang Natekar, it was held that the accused can be convicted Under Section 494 even if there is reliable evidence to establish the charge.
TEST:
A marries again during the life time of her husband B. She also concealed her first marriage from Z with whom subsequent marriage took place. what offence is committed by A
In this case the first marriage is valid and subsisting yet the accused performs subsequent marriage. Thus A can be convicted under offence of bigamy. As earlier mentioned, in Enai Beebee , it was held that is essential for the person contracting into second marriage to inform about his first marriage. Even A did not inform Z about her previous marriage. All the conditions of bigamy are satisfied and thus A is guilty of bigamy under Section 494 I.P.C.
TEST:
A, a Muslim who is married to a Muslim woman under Special Marriage Act marries again to another Muslim woman as per personal laws, Discuss his liability, if any.
Again, in light of S. Radhika Sameena Vs. SHO, Habeeb Nagar Police Station, A Muslim male married under Special Marriage Act, 1956 would be guilty under Sec. 494 IPC if he enters into another marriage under Muslim Law. Since, here marriage was not under Muslim Law but Special Marriage Act thus, the provisions of the Special Marriage Act shall be applicable and not Muslim Law. In the aforesaid case A, a Muslim had married under Special Marriage Act, therefore, he has given up his entitlement to be governed by his personal laws.
