This article is written by Shivani Panda. This article is further updated by Monesh Mehndiratta. The article aims to cover the laws prohibiting Bigamy in India with special reference to the Sarla Mudgal case. It provides necessary details of the case and explains the judgement and provisions discussed therein. 

It has been published by Rachit Garg.

Introduction

Can you wear casual clothes in your schools if it is against the rules? Can you give two exams at a time, if not allowed? Can you be present at two different places at the same time?

The answer to all these questions is ‘No’. Similarly, in a society, you cannot do anything which is against the established rule or law. Thus, an act that is recognised as an offence by law cannot be committed by any person in the society. Bigamy is one such act. Moreover, The conduct of a person is majorly governed by his or her religion. Marriage is one such institution. It can be understood as a culturally and legally recognised union, generally between two people. Black’s Law Dictionary defines it 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”. Different religions have different rituals and practices related to marriage that a person is expected to follow. For example, in Hindus, a marriage is considered complete after the bride and the bridegroom have completed saptapadi i.e., seven rounds around the fire; while in Islam, marriage is done through a sacred agreement called nikahnama. 

It should be noted that the world generally follows the concept of monogamy, which is a conventional rule which is recognised by the legal systems all over the world. A contravention of this general rule, that is, bigamy or polygamy, is also punishable by law. Thus, bigamy is a practice that is considered an offence in our country. However, in India, people from Islamic religion are allowed to have up to four wives. 

The article explains the concept of bigamy and why it is considered an offence. However, this will be incomplete without including the Sarla Mudgal case, which is a landmark case on bigamy in India. Thus, the present article explains the facts, issues, and judgement of the case and also explains the concept of bigamy under different laws in light of the above case. In this article, the author also analyses the laws against bigamy in India and landmark judgements of the same.

Meaning of monogamy, bigamy, and polygamy 

Marriage is considered one of the sacred institutions. There are various customs and traditional practices associated with it, which are different in different religions. For example, personal laws provide for the process of solemnization of marriage, process of divorce etc. Similarly, it also provides for the number of marriages allowed in a particular religion. Muslim law allows polygamy, while monogamy is the rule in Hindu law. 

Before delving in more details, we must know the answer to the question of what is polygamy, monogamy and bigamy? Firstly, these are forms of marriage. Monogamy means that a person can marry one person at a time. He or she cannot marry someone else during the lifetime of their spouse. Thus, monogamy restricts a person from having more than one spouse at the same time. This also means that a man can marry another woman or a woman can marry another man only when the spouse dies or the marriage is dissolved by divorce.  

Bigamy is another form of marriage where a male or female marries another person during the lifetime of their spouse. It is defined by the Cambridge dictionary as a ‘crime wherein a husband or wife marries another person during the lifetime of their spouse and while the marriage is subsisting’. Bigamy is considered an offence in a society whereas, monogamy is a rule. It is considered an offence. In India, monogamy is a general rule among Hindus while polygamy is only allowed under Muslim law. However, bigamy has been categorised as an offence under Section 494 of the Indian Penal Code, 1860. The article explains the concept of Bigamy in the context of the Hindu Marriage Act, 1955 and, the Indian Penal Code, 1860.

Lastly, Polygamy means that a person can have more than one spouse at a time. That means, a man can marry more than one woman at a time. It also applies to a woman marrying more than one man. Polygamy is further divided into:

• Polygymy, under which a man can have more than one wife at a time. 
• Polyandry, by which a woman can have more than one husband at a time. 

Bigamy under Indian law 

Polygamy or bigamy in India was not prohibited in ancient times, but it was also not a practice among the common populace. It was widely practised among the Hindu aristocrats and kings. Monogamy is generally imposed on Hindu females. Manusmriti, which is one of the sources of Hindu jurisprudence, states that when a wife is barren, diseased, or vicious, she could be superseded, and the second marriage would be valid. However, if a Hindu man solemnised a second marriage when the first wife is not barren or diseased, she and her son would always have primacy over the other wife and her son. 

After independence, the personal law was codified in the country  and bigamy was not allowed except for the Muslims. Further, the Parsi Marriage and Divorce Act, 1936, which governs the Parsis in India, also made bigamy punishable.  

Hindu Marriage Act, 1955 

Under the Hindu Marriage Act, 1955, there are a few conditions given under Section 5, fulfilling which a marriage can be legally solemnised. Section 5(i) of the Act stipulates that marriage between two Hindus can be contracted only when “neither party has a spouse living at the time of the marriage.” Here, ‘Hindu’ includes any person who is a Buddhist, Jain and Sikh. Further, Section 11 declares all marriage that is solemnised after the enactment of this act, that is in contravention of Section 5(i), it is void. Lastly, Section 17 provides for the punishment for bigamy in accordance with Section 494 and 495 of the Indian Penal Code (hereinafter IPC), which is discussed in detail below. Further, for a wife to file a case under Section 11, she needs to be a part of the marriage. 

In the case of Ajay Chandrakar v. Ushabai (1999), when a husband entered into a second marriage while the first marriage was subsisting, the petition to declare the second marriage null and void by the first wife was rejected, and the court held that the remedy under Section 11 is available to the second wife, who is a party to the subsequent marriage.

In the case of Priya Bala Ghosh v. Suresh Chandra Ghosh (1971), the court held that the offence of bigamy can be made out only when the spouse from a previous marriage was living during the time of subsequent marriage and the previous marriage was legal and valid. Both marriages must be solemnised according to essential religious ceremonies and requirements of the law, only then can a person be punished for the offence. 

In the case of Smt. Yamuna Bai Anant Rao Adhav v. Anant Rao Shiv Ram Adhav (1988), the Supreme Court held that if the first condition of valid Hindu marriage as mentioned in Section 5(i) of the Hindu Marriage Act, 1955, is violated, the marriage so solemnised would be rendered null and void according to Section 11 of the Act and the wife will not be able to claim any maintenance under Section 125 of the Code of Criminal Procedure, 1973. The same view was observed by the Supreme Court in the case of Bhogadi Kannababu and Ors. v. Vaggina Pydamma and Ors. (2006). Additionally, it was held that since such a marriage is void ab initio, the wife cannot claim or inherit the property of the husband. 

In the case of Nilesh Narain Rajesh Lal v. Kashmira Bhupendra Bai Banker (2010), a Christian man who was already married, solemnised a marriage with a Hindu girl according to the rituals and practices of Hindu marriage. After some time, when a baby girl was born out of marriage, he deserted his wife and filed suit to declare the marriage void. The court declared the marriage null and void. 

Bigamy under Indian Penal Code, 1860

Bigamy is criminalised under Section 494 of IPC like  the English law of bigamy. This Section makes it an offence for both males and females, regardless of their religion, except male Muslims. Under the Muhammadan Law, male Muslims are permitted polygamy, and they can have up to four wives. Thus, this Section applies to a Muslim man marrying a fifth wife during the subsistence of four earlier marriages. Further, all four marriages have to be conducted under Muslim law. If a marriage takes place under the Special Marriage Act, 1954, a subsequent wedding will be held invalid, and the man will be guilty of bigamy. 

The Section states that, if a valid marriage subsists between a man and a woman, and either of them contracts another valid marriage while they are living, such a subsequent marriage will be void. Thus, to attract this Section, both the first and second marriage must be valid, i.e., necessary ceremonies should take place according to a religion’s personal law. If the marriage is not a valid marriage, it is no marriage in the eye of law. 

Exceptions to Section 494 of IPC (Bigamy)

A person, whether man or woman, is subjected to punishment under Section 494 of IPC once he or she solemnizes a second marriage while the first still subsists. However, this Section also states some exceptions to the general rule on criminalization of bigamy. These exceptions are listed below- 

• When the husband or wife has been absent for seven years or more, and they have not been heard of being alive by the other party within that period. Further, the party marrying shall also inform the absence of their former spouse to the person they are marrying. 
• When a court of competent jurisdiction has either declared the first marriage as void or has granted a valid divorce to the first marriage. 
• The second, third, and fourth marriage of a Muslim person is also counted as an exception to criminalization of bigamy.

In the case of Dr. Suraj Mani Stella Kujur v. Durga Charan Hansdah (2001), the Supreme Court held that a person will not be punished under Section 494 if the second marriage is allowed by the custom or law governing parties to marriage. Thus, where the parties belonged to a tribe, a person cannot be charged for bigamy unless shown by the custom that second marriage is void during subsistence of first marriage. In the case of Sankaran Sukumaran v. Krishnan Saraswathy (1984), the spouses have entered a divorce deed and started living together. The Kerala High Court held that in a situation where divorce has been taken by the parties, and they believe that they are no longer husband and wife, either of them cannot be charged for bigamy if contracted for a second marriage. This is because the first marriage is put to an end. 

Punishment for bigamy

It should be noted that the offence under Section 494 of IPC is non-cognizable, bailable, compoundable and triable by the magistrate of the first class. Whosoever, will marry another person while the first marriage is valid and the first spouse is living, then such person shall be punished with imprisonment of either description which may extend to seven years, and they will also be liable to fine.  

Concealment of former marriage: Section 295 of IPC

We all know that bigamy is an offence under Section 494 of IPC. Bigamy is an offence committed against a former spouse. However, the person marrying for the second time could also be liable towards the subsequent spouse if he/ she married her/him while concealing the facts about the former marriage. Section 495 of IPC makes a provision for punishment of offence of concealment of former marriage from the person with whom subsequent marriage is contracted.

It covers the aggravated form of bigamy. It states that, if a person solemnised a second marriage and conceals the fact about his or her first marriage from the person with whom the subsequent marriage is contracted, the punishment may extend up to imprisonment of either description of 10 years and shall also be liable to fine. The offence is non-cognizable, bailable, non-compoundable and triable by a magistrate of the second class. In the landmark case of R v. Tolson (1889), a woman remarried another man 6 years from the date when her husband went missing as the ship in which he was sailing was lost. Eleven months after her marriage, the previous husband returned and filed a case against her for the offence of bigamy. She filed an appeal against her conviction, stating that she remarried without an intention of committing the offence of bigamy and also waited for her husband for six years. The court held that this was a reasonable defence in this situation.

Sarla Mudgal vs. Union of India

Our Constitution, under Article 25, gives the freedom to practise and professes any religion, which also includes the freedom to convert to any religion other than one assigned to him by birth. However, with diverse religions and personal laws, this provision is sometimes misused. Bigamy is punishable for all religions under IPC, except those tribes or communities whose personal law permits polygamy, such as the Muslim law. In order to practise bigamy, all a person has to do is relinquish his religion and adopt Islam. The instances of men doing this are not uncommon.

Under the Parsi Marriage and Divorce Act and Special Marriage Act, the second marriage of any party is void if the first marriage is already subsisting under these Act. This means that a second marriage is void when the first marriage is still subsisting. Also, if a person converts to any other religion where polygamy is allowed and marries another person while his or her first marriage solemnised before the conversion, is still subsisting, it is not valid because the first marriage solemnised before conversion is not dissolved yet. However, the Hindu Marriage Act, 1955 has not specified the status of a person marrying after conversion. It declares a subsequent marriage between two Hindus is void if their partner is living, and they have not divorced at that time. This issue was scrutinised by the Supreme Court at length in the landmark case of Sarla Mudgal & Ors. v. Union of India and it settled the ambiguity surrounding the rights, duties, and obligations of people who change religion to defeat the law. The court held that a change of religion does not permit a person to defeat the provisions of law and to commit bigamy. A detailed analysis of the case is given below.

Name of the case

Smt. Sarla Mudgal, President,…v. Union of India & Ors. 

Citation

1995 AIR 1531, 1995 SCC (3) 635

Date of judgement

10/05/1995

Judges

Justice Kuldip Singh, and Justice R.M. Sahai

Name of petitioners

Smt. Sarla Mudgal, President, Kalyani, Meena Matur, Geeta Rani, Sunita Narula @ Fathima and Sushmita Gosh. 

Name of respondents

Union of India, Jitendra Mathur,  Pradeep Kumar and G.C. Ghosh.

Laws involved 

Constitution of India (1950), the Hindu Marriage Act, 1955 and Indian Penal Code, 1860. 

Brief facts of Sarla Mudgal vs. Union of India

• There were four petitions filed in the Supreme Court under Article 32 of the Indian Constitution that were heard together. Firstly, in Writ Petition no. 1079/89 where there were two petitioners. Petitioner 1 was Sarla Mudgal, the president of a registered society called Kalyani, which was a Non Profit Organisation (NGO), working for the welfare of needy families and distressed women. Petitioner 2 was Meena Mathur, who was married to Jitender Mathur since 1978 and had three children born out of wed-lock. Petitioner 2 found out that her husband had married another woman, Sunita Narula alias Fathima, after they both converted themselves to Islam. She contends that the conversion of her husband to Islam was only to marry Sunita, thereby avoiding Section 494, IPC. The respondent asserts that after converting to Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu. This would also mean that he will not be held liable under Section 494 of the Indian Penal Code, 1860 as polygamy is permitted under Mohammedan Law. 
• Another petition was filed by Sunita Narula alias Fathima, registered as Writ Petition 347/1990, where she contended that she and the respondent converted to Islam to marry, and a child was born out of wedlock. However, under the influence of Meena Mathur, the respondent gave an undertaking in 1988, that he will convert back to Hinduism and maintain his first wife and three children. She also claimed that the husband was not maintaining her, and she did not have any other protection in either Hindu law or Muslim law.  
• Thirdly, a petition registered as Writ Petition 424/1992 was filed in the Apex Court. The petitioner, Geeta Rani was married to Pradeep Kumar in 1988 according to the Hindu rituals. In December 1991, the Petitioner learned that her husband converted to Islam and married another woman, Deepa. The Petitioner asserts that the sole purpose of conversion to Islam was to facilitate the second marriage and to escape the matrix of Section 494 of IPC.
• Lastly, Sushmita Ghosh who was the petitioner in the Civil Writ Petition 509/1992, married to G.C. Ghosh according to Hindu rituals in 1984. In 1992, her husband/respondent asked her to agree to divorce by mutual consent, as he did not want to live with her any more. The petitioner was shocked, and when she questioned him more, he revealed that he had converted to Islam and would marry Vinita Gupta. In the writ petition, she prayed that her husband must be restrained from entering into a second marriage.  

Issues involved in Sarla Mudgal vs. Union of India

• Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise a second marriage? 
• Whether such a marriage, without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continues to be Hindu? 
• Whether the apostate husband, i.e. one who renounced Hinduism, would be guilty of the offence under Section 494 of the IPC? 

Arguments of both parties 

Arguments by petitioners

It was contended by the petitioners that the marriage was solemnised only when the husband converted to Islam thus, indicating that the whole purpose of conversion was to solemnise the marriage as polygamy is allowed in the Muslim religion. They further contended that this practice of converting to Islam for marriage violated their rights mentioned in the personal laws. The first marriage is still subsisting, and the husbands solemnising the second marriage without dissolving the previous is a violation of personal rights. Further, they commonly contended that another aim was to evade the provisions of bigamy and escape the punishment under Section 494 of the Indian Penal Code, 1860. The other petitioners also argued that their spouses forced them to convert to Islam just because they converted, thus violating their fundamental right to religion under Article 25 of the Constitution. 

Arguments by respondents

The respondents, on the other hand, contended that the provisions of the Hindu Marriage Act, 1955 and, the Indian Penal Code, 1860 are not applicable in their case. This is because the religion of Islam allows polygamy, and they can have four wives while the first marriage is subsisting. They further argued that under Muslim personal laws, if either spouse does not follow or embrace the same religion as the other, it results in the dissolution of the marriage. Thus, if one has converted to Islam, the other must do it as he or she is duty-bound to do so or else, the marriage is dissolved; hence, the spouse who converted and married in Islam will not be liable for any punishment. 

The respondents in all the petitions assert a common contention that once they convert to Islam, they can have four wives despite having a first wife who continues to be a Hindu. Thus, they are not subject to the applicability of the Hindu Marriage Act, 1955 and IPC. 

Judgement of the court in Sarla Mudgal vs. Union of India

Ratio decidendi 

The court discussed all the issues in question in detail and laid down the following: 

• When a marriage takes place under Hindu Marriage Act, 1955, certain rights and status are acquired by both the parties, and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would destroy the existing rights of the spouse who continues to be Hindu. A marriage performed under the Act cannot be dissolved except on the grounds given under Section 13 of the same Act. Until this is done, neither party to a legal marriage can solemnise a second marriage. The second marriage of an apostate would, therefore, be an illegal marriage qua his wife who married him under the Act and continues to be Hindu. This reasoning is asserted by a doctrine of traditional Hindu law, the doctrine of indissolubility, which states that law did not recognise that the conversion would have the effect of dissolving a Hindu marriage. It further held that such a second marriage, solemnized by conversion to Islam, is violative of justice, equity, and good conscience. It also emphasised the need for harmonious working of the two systems of law, in the same manner as to bring harmony between two communities. 
• Secondly, the court further held that the apostate husband would be guilty under Section 494 of IPC. The expression ‘void’ used in the Hindu Marriage Act, 1955 and the Indian Penal Code have different purposes. Conversion to Islam and marrying again would not, by itself, dissolve the previous Hindu marriage under the Act, but it will be a ground for divorce. However, it can be inferred from the ingredients of Section 494 explained in detail in the preceding parts of the article, that the second marriage would be void, and the apostate husband would be guilty under Section 494 of IPC. 
• Lastly, the court advocated the necessity of the Uniform Civil Code (hereinafter referred to as “UCC”) in the Indian legal system, that will stop Indians from trespassing the personal law of one another. The court further directed the Government of India, through the Secretary of Ministry of Law and Justice, to file an affidavit regarding the steps taken by the Government of India towards securing a UCC for the citizens of India. 

Dissenting opinion 

There was no dissenting opinion regarding the ratio decidendi of the case that the second marriage after converting to Islam is void and punishable under IPC, and it does not dissolve the first marriage solemnized under Hindu Marriage Act, 1955. However, the obiter dicta of the case, in which the Apex Court advises the implementation of UCC in the Indian legal system to avoid conflict, was dissented by Hon’ble Justice R.M. Sahai. He opined that:

• The implementation of UCC would lead to more bad than good. It will cause dissatisfaction and disintegration among different religions. The Constitution of India upholds the freedom to profess any religion, and forcing UCC upon the citizens would be arbitrary and unconstitutional. 
• Further, uniform personal law can only be laid down when there is harmony between the people of all religions, and when their religion does not feel threatened. 
• He also recommended the government to establish a committee to enact the ‘Conversion of Religion Act’ to check the abuse of religion by any religion. The Act will be binding on all the citizens irrespective of their religion and will prohibit the conversion of religion to marry. Provisions for maintenance and succession will also be provided to avoid a clash of interest between the heirs.

Obiter dicta 

While deciding the issues in the case, Justice Kuldeep Singh observed that marriage is the foundation of every civilised society under which when a relationship is formed and the law is involved, it binds the parties to carry out certain obligations. It is an institution in which the public at large is concerned about its maintenance. It can be said that marriage is the foundation of a family, without which there can be no society. It was also observed that since monogamy is a rule in Hindu law, Hindu husbands usually convert to Islam for polygamy which is allowed therein. 

While dealing with the issue of whether conversion to another religion by either of the spouses would dissolve the subsisting marriage, the judge relied on various judicial pronouncements. In the case of Gul Mohammed v. Emperor (1947), the accused took a Hindu wife fraudulently and married her after forcefully converting her to Islam. It was held that this conversion of Hindu married women to another religion does not ipso facto dissolve her marriage. It was also observed that in India, a marriage is governed by the personal laws of different religions. 

A marriage solemnised under one religion cannot be dissolved by another personal law just because one of the spouses changed his or her mind and converted to another religion. It was further observed when a marriage is solemnised under Hindu law, the parties acquire the status and obligations according to the law governing Hindu marriages and if either of them is allowed to dissolve the marriage by converting to another religion, it would affect and violate the rights of another spouse who is still a Hindu. Thus, there can be no dissolution of marriage automatically upon conversion. 

It was observed that a marriage solemnised under Hindu law can only be dissolved according to the grounds mentioned in the Hindu Marriage Act, 1955. The court also relied on the case of Robasa Khanum v. Khodabad Bomanji Irani (1946) where the court held that the conduct of a spouse who converted to Islam has to be judged based on the rule of justice and equity and food conscience. Another angle is that the second marriage when the first is subsisting also violates principles of natural justice. The object of conversion must not be to encourage Hindu husbands to convert merely to enjoy polygamy. 

With respect to the Uniform Civil Code, it was observed that the Constitution itself provides for the uniform civil code under Article 44. However, there has been no development or work to achieve the goal. It was further observed that implementation of UCC would contribute to national integrity and avoid disparities in issues related to personal laws. It is not the duty of communities but the state to secure a uniform civil code for its citizens. Justice Sahai opined that it would provide protection for oppressed minorities and promote national unity and solidarity. However, the first step is to rationalise the personal laws of minorities to develop religious and cultural amity.  

Laws discussed in Sarla Mudgal vs. Union of India 

Apart from the Hindu Marriage Act, 1955 the case also discusses the following the laws:

Section 494 of IPC

Section 494 of the Indian Penal Code, 1860 deals with punishment and provides the following ingredients of bigamy:

• The person committing the offence of bigamy must have a spouse living at the time of the second marriage.
• The person marries another person during the lifetime of the spouse.
• The second marriage will be void.
• The person committing such an offence will be punished with imprisonment for up to seven years and a fine. 

The offence of bigamy is a non-cognizable bailable offence. It can be better understood with the help of an illustration:

Illustration: X married Y in 2000 according to Hindu customs and practices. In 2002, X married another woman Z, according to the same rituals. The marriage with Y is still subsisting and has not been dissolved. Here, X will be liable for the offence of bigamy, as he married another woman Z during the lifetime of his spouse Y while his first marriage was still subsisting. 

However, there are certain exceptions to the offence of bigamy. A person will not be held liable for the offence of bigamy if:

• The first marriage has been declared void by the court of competent jurisdiction.
• The second marriage was solemnised after the spouse from the first marriage was absent or missing for seven years and was not heard of as being alive during the time and so, the person contracted a subsequent marriage. Provided that the real facts within the knowledge of the person must be informed to the person with whom marriage is solemnised. 

Constitution of India

The case also discusses Articles 25, 26, and 27 of the Indian Constitution, which revolve around the right to religion. Article 25 provides people the freedom of conscience and to freely, profess, propagate and practice religion. However, this is not an absolute right and is subject to public order, morality, and health. It further provides that the right will not affect or prevent a state from making any law:

• To regulate or restrict any financial, economic, political or any other secular activity that is associated with any religious practice. 
• To provide for the social welfare or reforms or opening Hindu religious institutions of public character for all classes and sections of Hindus.

The explanation attached to Article 25 provides that the term ‘Hindu’ includes Sikh, Jaina, or Buddhist. Article 26 further provides freedom of any religion or section to manage religious affairs and to:

• Establish and maintain institutions for religion and charity. 
• Manage the affairs related to their religion. 
• Own and acquire movable and immovable property. 
• Administer such property. 

However, such a right is subject to certain reasonable restrictions like public order, morality, and health. Article 27, on the other hand, deals with freedom related to payment of taxes for the promotion of religion and that no person will be forced to pay any taxes in this regard. 

Aftermath of Sarla Mudgal vs. Union of India 

Lily thomas v. Union of India (2000)

The judgement of Sarla Mudgal was reviewed by the Supreme Court in the case of Lily Thomas v. Union of India in 2000. This review was made on the ground that the judgement in the impugned case violates the fundamental right to life and liberty and freedom to practise any religion enshrined under Articles 20, 21, 25 and 26 of the Indian Constitution.

The Apex Court held that the contention of the petitioner that the judgement of Sarla Mudgal amounts to the violation of freedom of conscience and free profession, practice and propagation of religion as guaranteed under Article 25 and 26 of the Constitution, is far-fetched and is alleged by those who hide behind the cloak of religion to escape the law. The court further stipulated that the freedom of religion guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon similar freedom of the other persons. This means that the right of  one person does not deny the right to another. People can exercise their right to religion without interfering with the rights of each other. 

On the argument of petitioners that making converts liable for committing polygamy would be against Islam, the Apex Court observed the ignorance of the petitioners and rightly said that even under Islamic law, purity of marriage is upheld by Prophet Mohammad. The interpretation of Islamic law in the modern sense would never allow such acts in its religion. Islam is a progressive, pious and respected religion that cannot be given a narrow concept as has been allegedly done by the petitioners. 

Law Commission on voluntary legal declaration of conversion 

The Law Commission has been active in its role of submitting its report regarding loopholes in a legislation, need of revision and suggestions to deal with the same. They have also worked to strengthen the laws related to bigamy in the country. Law Commission’s 18th report on Converts’ Marriage Dissolution Act, 1866 provided that any conversion from a religion having monogamy to a religion allowing polygamy does not dissolve the marriage ipso facto. However, the Act was particularly related to Christians. There have been other reports on the same issue, which are explained below. 

The 235th report of the Law Commission of India in 2010 recommended a voluntary legal procedure to declare the conversion of the religion of a person. The procedure can help avoid controversies regarding the legal status of a person upon conversion. So, if a married man seeks to convert his religion to Islam, there is an apprehension that he is converting to take advantage of polygamy. This means that it can avoid confusion regarding whether a person has converted or not and what was the purpose of such conversion. The procedure as laid down by the commission is discussed in brief below: 

• If the convert chooses, he or she can send a declaration of conversion within a month, to the officer responsible for marriage registration. The declaration will be displayed on the notice board of the office till the date of confirmation. 
• The declaration shall mention the religion to which the convert originally belonged to and the religion to which he or she converted. It shall be mandatory to mention the date, place of conversion, along with the marital status of the person. 
• The convert shall verify the declaration within 21 days in the registering office, and the officer shall record the same along with confirmation and objection, if any, with the details of the objector. The copies of the declaration, confirmation, objection, and extracts from the register shall be forwarded to the convert. 

Ineffectiveness of voluntary legal declaration of conversion

There are certain lacunas in this procedure of voluntary declaration which is proposed by the law commission. Such lacunas must be addressed for the effectiveness of the proposed procedure. It is claimed that the procedure given by the Law Commission will not be effective, if established, for the following reasons: 

• It is a voluntary process that will be avoided by most of the converts. A compulsory declaration of conversions should be observed, like the mandatory registration of marriage. 
• The procedure laid down by the Law Commission is obsolete. For the process to be worthwhile, an online declaration procedure can be thought of, as the offline display of the declaration in the office’s notice board is not practical. This process can be helpful both for the convert and the objections if any.  
• The offline process laid down by the commission should be adopted as an alternative for those who want to register it offline.

Law Commission’s 227th Report on preventing bigamy via conversion to Islam

The 227th report of the Commission deals with prevention of Bigamy via conversion to Islam. For this, the commission proposed for giving statutory effect to the Supreme Court rulings. The report provided that it has been the practice of men belonging to those religions where bigamy is not allowed, to convert to Islam for enjoying polygamy and contract a second marriage while the first marriage solemnised, before conversion, is still subsisting. This was recognised and outlawed by the Supreme Court in the case of  Sarla Mudgal. In order to deal with such immoral practice, the commission made suggestions to make certain amendments in the existing legislations. These are:

• The commission recommended to insert a new Section in the Hindu Marriage Act, 1955 providing that a person married according to the provisions of the Act, cannot marry again even after converting to another religion unless the first marriage is not dissolved and if done, such a marriage would be null and void and the person will be charged for the offence of bigamy. 
• Similar provisions must be added in the personal laws of other religions other than Islamic religion. 
• It further provides that the offence of bigamy must be made cognizable under the criminal laws. 
• A provision must be added in the Special Marriage Act, 1954 to provide that if any existing marriage becomes inter-religious due to change of religion by either of the parties, it will be governed by the provisions of the Act. 

Uniform Civil Code (UCC)

In India, there are multiple religions and cultures. Every religion has its own personal law governing marriage, adoption, maintenance, divorce etc. These multiple personal laws have given rise to confusion and offences as well. For example, monogamy is a rule in Hindu religion but in Islam polygamy is practised. This has led to a lot of conversion of Hindu men to Islam just to enjoy the practice of polygamy and marry more than one person without dissolving the first marriage. Marrying another person during the lifetime of your spouse while your first marriage is still subsisting amounts to the offence of bigamy. Thus, the court has felt and expressed the need for a Uniform Civil Code in the country in various cases, and the case of Sarla Mudgal is one such case. 

The history of UCC can be traced back to the 1950s, when the first Prime Minister of newly independent India, Jawaharlal Nehru, wanted such a code to be enacted under the Hindu Code Bill. The Bill had received various criticisms for upholding monogamy, divorce, and inheritance to daughters in a Hindu Joint Family business. Since the Act only applied to Hindus, other religions and tribes were left to be governed under their respective personal laws. 

Further, it was established as Directive Principles of State Policy (DPSP) under Article 44 of the Constitution to secure for citizens a UCC throughout the territory of India. However, the discussions and debates regarding UCC ceased, until the case of Shah Bano came into limelight in 1985. A futile attempt was made in the direction of UCC by the judiciary in the case, which the Government of India ignored and went on passing the Muslim Women (Protection of Rights on Divorce) Act, 1986. 

• To know more about Shah Bano case, refer and for the summary of the case, refer
• Read more about UCC on this link and to know about the challenges before implementing UCC, refer this link

The next discussion of UCC was in the Sarla Mudgal case, which has been discussed above. In the 21st century, there have been frequent discussions on the implementation of UCC by the judiciary, which till now has proved to be redundant. In the recent landmark judgement of Shayara Bano v. Union of India (2017), which invalidated the practice of Talaq-ul-Biddat or triple talaq, the subject-matter of UCC, was also discussed at length. However, no step towards the implementation of the same has been taken by the Parliament, either due to protests against it by the religious communities or due to the fear of political backlash. 

Live-in relationship and bigamy

Live-in relationships are situations where two adults are cohabiting and living together as if they are married without getting married. Whether such relationships are legally recognised in society, it was a big question until the case of Khusboo v. Kannaimmal (2010), where in the Supreme Court ruled that live-in relationship comes within the ambit of Right to life under Article 21 of the Constitution and are permissible and is not unlawful or illegal. Further, the court in the case of Indra Sarma v. V.K.V. Sarma (2013) observed that such relationships, though not accepted in the society, are neither considered a crime nor sin. 

In the case of Dhanulal v. Ganeshram (2015), the Supreme Court held that couples living in a live-in relationship will be considered legally married and that women will be able to inherit property of her partner after death. However, whether such relationships fall under the purview of those relationships for which bigamy is an offence or not is a question yet to be considered. There is no particular law with respect to these issues which led to different judgements by different High Courts. It is necessary to answer these questions and make legislation in this regard in order to avoid confusion and contrary judgements. 

In the case of Smriti Singh alias Mausami Singh v. State of U.P. (2022), the complainant alleged that his wife has sanctified a second marriage and is living with her second husband without dissolving her previous marriage. The applicant on the other hand alleged that the complaint was a counter to the FIR lodged by her against her husband and in-laws. The Allahabad High Court in this regard held that no offence of bigamy can be made out against the applicant as for the offence of bigamy to be made out, it is necessary that the second marriage is solemnised properly and in Hindus a marriage is incomplete without performing the ceremony of saptapadi. Similarly, it can be understood that bigamy as an offence does not apply in cases of live-in relationships as the two people are living together without solemnising a proper marriage. 

However, in the case of Harpreet Kaur and Another v. State of Punjab and others (2021), the Punjab and Haryana High Court observed that where the petitioner is a legally wedded wife of respondent and is living in an adulterous relationship with another man without seeking divorce from her husband, may amount to offence under Sections 494 and 495 of the Code. The court observed that such a relationship cannot fall within the phrase of ‘live-in relationship’ and so cannot be granted any protection. Thus, there is still no clarity with respect to this issue. 

Recent cases on bigamy

Khursheed Ahmad Khan v. State of U.P. (2015)

Facts of the case

In this case, the appellant was a government servant (Irrigation Supervisor, Tubewell Division, Irrigation Department, Government of Uttar Pradesh). He was served a charge sheet in which it was alleged that he married another woman during the time his first marriage was subsisting with Sabina Begum. It was also alleged that he provided misleading information that he divorced his first wife. He denied the charges and alleged that the sister of his first wife filed a complaint in the National Human Rights Commission (NHRC) out of personal enmity. He also alleged that he duly divorced his first wife before solemnising the second marriage. However, this was contrary to the statement he made in the enquiry by the National Human Rights Commission. 

He was also charged for violating the U.P. Government Servant Conduct Rules, 1956. His department was also directed to take necessary action against him, which led to his removal after due inquiry. Aggrieved by the order of removal from service, the appellant filed a writ petition in the Allahabad High Court. However, the High Court has dismissed the writ petition, stating that the inquiry conducted by the department was correct and that he did not inform anyone about his divorce with his first wife and about the second marriage. 

Issues involved in the case

• Whether there is a violation of the conduct rules?
• Whether the decision of the Allahabad High Court is correct?

Judgement of the court

The Hon’ble Supreme Court held that there is no evidence or record to show that the appellant divorced his first wife and solemnised a second marriage after the divorce. Also, according to the conduct rules of the irrigation department of Uttar Pradesh, a second marriage during the existence of the first will amount to misconduct. Thus, it was held that there is no doubt, and it has been proved, that the second marriage was solemnised without dissolving the first marriage.

In this case, the Apex Court has also observed that the conduct rules of the irrigation department  are not in violation of Article 25 of the Indian Constitution because a practice that is religiously accepted and permitted can be regulated by legislation in the interest of public order, morality, and health. 

Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat (2015)

Facts of the case

The respondent, in this case, was married to the applicant and their marriage was governed by the Muslim personal law as they practised the religion of Islam. The applicant alleged that she was harassed physically and mentally by her husband and in-laws for dowry. She was sent back to her paternal house and after her daughter was born, her in-laws and husband never inquired about them. She filed the complaint stating that her husband solemnised a second marriage after that while the first marriage was still subsisting. 

Issues involved in the case

Whether the act amounted to the offence of bigamy?

Judgement of the court

The Gujarat High Court observed that the laws on marriage and the personal laws, other than Muslim law, prohibit bigamy and such a marriage is void. It has been a practice for a long time that men resort to unethical and immoral practices of converting to Islam for contracting more than one marriage. There is a mentality that conversion allows them to solemnize more than one marriage without dissolving the previous marriage. It was also held that the offence is a continuing offence. However, with respect to the present case, it was held that the provisions of Section 494 of the Indian Penal Code, 1860 would apply only to cases wherein the personal laws do not allow polygamy. This is because there is no Uniform Civil Code in this regard in the country. Hence, the respondent was not charged for the offence of bigamy as the marriage was governed and solemnised according to Muslim law, which allows polygamy. 

Sri Anand C v. Smt. Chandramma (2022)

Facts of the case

In this case, the petitioner, aged 76 years, is the husband of the respondent or complainant, aged 69 years. He married another woman with the consent of his first wife, and then another with the consent of both of the wives. The property was equally divided among all of them. However, due to certain disputes, a complaint was filed by the first wife against the petitioner (husband) under Section 494 of the Indian Penal Code, 1860 and Section 200 of the Code of Criminal Procedure, 1973 (“CrPC”). This complaint was filed before a civil judge. However, the petitioner has filed a petition in Karnataka High Court to use its inherent power under Section 482 of the CrPC and quash the proceeding of lower court. He argued that his act does not amount to bigamy as every marriage was solemnised with the consent of his wives and requested to quash the proceedings.

Issues involved in the case

Whether the act of marrying thrice amount to bigamy?

Judgement of the court

In this case, the Karnataka High Court held that the proceedings against the petitioner could not be quashed. If a person marries another while his or her spouse is living, it amounts to an offence of bigamy and the consent of the spouse is immaterial. So, if the second marriage is solemnised with the consent of the wife, it is immaterial and would amount to the offence of bigamy. The Karnataka High Court also held that the plea of delay in registration of complaint in the present case is not significant as bigamy is a continuous offence. 

Conclusion 

Marriage is considered one of the most important and universal social institutions of society. Every religion emphasises its importance and purpose. On one hand, the aim of marriage in Hinduism is Dharma or to fulfil the requirements of law and religion while in Islam, the purpose is progeny i.e., continuity of life. However, some people do not consider it a sacred institution and often commit crimes against their spouses. One such offence is Bigamy, wherein one of the spouses marries another person during the lifetime of the other spouse while the previous marriage is subsisting. 

The worst form of Bigamy is when some people take advantage of the customs and practices of different religions to commit the offence. Religion is not a commodity and neither it must be considered so, nor can be used in this way. Conversion of people to Islam just to take advantage of polygamy while their previous marriage subsists amounts to religious bigotry and is disrespectful towards a religion. This should never be encouraged and hence, the Supreme Court in the above cases held that if any person converts to Islam for polygamy, when he is already married according to Hindu law, it would amount to bigamy, and he will be punished accordingly. This is correct because a person cannot take shelter in the name of religion to hide his misdeeds and no society should tolerate such activities. 

The Indian legal system recognizes bigamy only when there is a valid marriage between a male and a female. The inclusion of UCC in the system is a step towards secularism, and the legislature shall take steps to enact it in the Indian legal structure. Prof. H.L.A. Hart propounded the theory of modern Analytical Legal Positivism, where he differentiated a static and non-static society. In both the societies, the rule of change shall be applied along with the primary principles, for the civilization to move forward. If the author may interpret it in a modern sense, it is fundamental for the law to keep up with the change in society. Thus, reforming the law of bigamy and personal laws in India is pertinent to suit the needs of modern Indian society.

Frequently Asked Questions (FAQs)

What do you mean by the term ‘bigamist’?

Bigamy is an offence wherein one of the spouses marries another person during the lifetime of his or her spouse while the marriage is still subsisting and has not been dissolved. The person committing the offence of bigamy is called a bigamist. 

What is the classification of the offence of bigamy?

Bigamy is a non-cognizable and a bailable offence triable by a magistrate. Offences which are less serious in nature are non-cognizable and bail is easily granted in such cases, hence called bailable offences. 

What punishment has been prescribed for the offence of bigamy under Section 494 of the Indian Penal Code, 1860?

A person committing the offence of bigamy will be punished with imprisonment up to seven years and fine. 

Where will the offence of bigamy be tried or inquired into?

According to Section 182(2) of the Criminal Procedure Code, 1973, the offence of bigamy will be inquired into or tried by the court within whose jurisdiction it was committed, or the offender resided with the first spouse or where the spouse is residing after the offence has been committed. 

What are the rights of the first and second wife in a bigamous marriage?

In case of bigamy, the first wife has a right to file a complaint against the husband for committing the offence of bigamy under Sections 494 and 495 of the Indian Penal Code, 1860. This will result in a declaration of second marriage as void. Further, no recognition will be given to the second wife, as the second marriage is not legally valid. Their marriage is simply void. 

References

• https://blog.ipleaders.in/bigamy-india/
• https://www.jstor.org/stable/43953817
• https://blog.ipleaders.in/section-494-ipc-punishment/
• https://www.scconline.com/blog/post/2016/10/19/law-for-laymen-s-494-ipc-bigamy/
• https://blog.ipleaders.in/section-494-ipc-essential-elements-and-case-laws/ 
• https://blog.ipleaders.in/section-494-ipc-essential-elements-and-case-laws/#Essential_elements_to_constitute_the_offence_of_bigamy 
• https://blog.ipleaders.in/shayara-bano-v-union-of-india/#:~:text=Judgment%20of%20the%20court,stop%20the%20abuse%20against%20women. 

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