polygamy
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This article is written by Soma-Mohanty of KIIT School of Law, Bhubaneswar. In this article she has explained about punishments, essentials of bigamy, the provision of bigamy in Hindu laws, the provision of polygamy in Muslim religion and about fraudulent marriages.

Introduction

    • The previous definition of bigamy consisted of these stated words “having a husband or wife”, but these words become vague once the first marriage ceases to be legal after separation.
    • Thus the definition of bigamy under Section 494 of IPC was suggested to be redrafted.
    • According to Section 5 of the Hindu Marriage Act,1995 the conditions necessary at the time of marriage is that both the partners getting married should not be having a living spouse.
    • But there is an exception provided by Section 494 of IPC, it states that either of the partners can contract a second marriage after the long absence of her partner for a period of seven years.

Essentials of Section 494 of IPC

  • The first marriage should be according to the law i.e, it should be legal
  • Second marriage should have taken place
  • The first marriage should be existing
  • The spouse must be alive
  • Both marriages should be valid

Classification of offence

  • It is a non-cognizable offence.
  • It is a bailable offence 

bigamy meaning

Who can file a complaint

  • Any person who has been deceived by their partner can file the complaint.
  • In the case of a wife, her father, mother, brother, sister or any person related to her by blood, with the leave of the court can file a complaint on her behalf.
  • In the case of the husband, only he is permitted to file the complaint.

Compoundable offence

  • Offences under bigamy are compoundable only if there is a consent of the wife and if the competent court permits.

Bigamist meaning 

 When a person is already married and the marriage is still valid, then contracts another marriage with another person is called bigamy and the person committing this is called bigamist.

Example: “A” was married to “B” who is his wife and due to some fights she left her in-laws place and went to her parental home. Then after some days, her husband married another woman. In this case, “A” is to be called as a bigamist.

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Bigamy vs polygamy 

 

Basis 

Bigamy 

Polygamy 

Meaning 

When a person marries another person, despite the fact that he/she has been married legally before.

When a person is having more than one spouse at a time.

Religious practice 

It is not a religious practice.

It is considered to be a religious practice.

It is seen in the Muslim religion mostly.

knowledge

  • The second spouse may not be aware of the first marriage.
  • The first spouse comes to know about the fact only after the second marriage.
  • As most of them reside in the same place, they are aware of the fact.

legal

  • Bigamy is not legal in any of the countries
  • But in certain cases where the first marriage has already been dissolved, the second marriage can be considered legal
  • In countries like India, Pakistan, Philippines, etc, it is considered to be legal. 

Punishment 

  • In India, a person who has committed the offence of bigamy is to be convicted under Section 494 of IPC

N/A

Cases 

Bhaurao Shankar Lokhande and Ors.

Vs.State of Maharashtra and Ors.[1]

Jafar Abbas Rasool Mohammad Merchant

Vs.

State of Gujarat and Ors.[2]

 

Muslim polygamy

 

Origin 

  • After the Battle of Uhud, it was seen that may Muslims died fighting for the Prophet as well as Islam.
  • Many women were left without a husband and their children were left behind as orphans.

Thus Allah was concerned about the suffering and thus polygamy was introduced as follows.

  • According to Muslim Marriage Law, a husband can have up to four wives only.
  • Muslim polygamy is not abolished in India.
  • According to Muslim Personal Law, a Muslim male is permitted to marry again in the presence of the validity of his previous marriage.
  • The validity of polygamy comes from Chapter 4 of the Quran.
  • In most of the places, Muslim polygamy is practised without the wife’s consent.
  • Thus, Pakistan in 1961 passed the Muslim Family Laws Ordinance in which a husband needs to seek permission from the  Chairman of the Union Council, who is an elected local government body.
  • This rule prohibits the man to get married secretly.
  • Muslim Law permits a man for polygamy but it restricts the man to force his first wife to stay with him. [3]

Hindu polygamy in Modern India

  • The Hindu Marriage Act, 1995 prohibits polygamy. According to this Act marriage arising out of polygamy is not void in nature any person not abiding by the law would be punished under Sections 494 and 495 of IPC.
  • Section 5 of The Hindu Marriage Act, 1995 states that to consider a marriage to be valid the main essential should be that both of the parties have no surviving spouse.
  • In the case of Sarla Mudgal v. Union Of India, it was held that the marriage had taken place according to The Hindu Marriage Act, 1995 and it would only dissolve with the provisions of this Act. The man converting himself to other religions won’t provide him immune to escape from the punishment.

Christian polygamy 

  • According to the Old, Testament polygamy is explicitly forbidden.
  • Minister of Religion of a Church and the Marriage Registrar are the authorities who administer Christian marriage.
  • According to the provision, there are two criteria for marriage
  • The person should be marrying for the first time.
  • The person getting married should not be having a living spouse.
  • But there is no scope for existing marriage.
  • And the person who takes the false oath and hides the fact of his previous marriage and a living spouse would be punished under Section 193 of IPC.

Fraudulent marriages

According to Section 493 of IPC

  • When a man tactfully traps a woman to believe that they are married lawfully and with that believe she had a sexual relationship with him, despite the fact that the marriage is invalid.
  • In this case, the person would be punished with imprisonment for a term which may years.
  • He would also be liable to pay the fine; or
  • Both imprisonment as well as fine.

According to Section 496 of IPC

  • When a person gets married again, with the sufficient knowledge that it is not valid according to the law and hides the fact.
  • Then, in this case, he would be punished with imprisonment for a term which may exceed to seven years.
  • He can also be liable to pay the fine.

Essential ingredients to constitute the offence

Fraudulent intention

  • In both of the sections it is necessary to show that the act done is fraudulent in nature.
  • It is necessary to show that the woman is completely unaware of the voidness of the marriage but the man is clearly aware of the situation.
  • A marriage is considered to be valid when both people are going through all the necessary rituals of marriage under bonafide impression, though the marriage in not valid in real life.
  • This situation arises because the man is not aware of the facts and there was no fraudulent intention at the time of marriage.
  • From the above facts stated it is clear that means rea constitute one of the strong elements under this section.

Arising false belief

  • The mere act of a man to cheat the women won’t be sufficient enough to constitute the offence.
  • It has to be shown that with the false interpretation the man married the women and under this false impression that they are legally married, they had sexual intercourse.
  • But if the women have closure to all the facts and still allows him to have sexual intercourse then it won’t be valid.
  • When the dissolution of the previous marriage of a man is running in the court and during the period he gets married again then it is not valid. But if he gets married informing the girl and her parents about the above-stated fact, then it won’t be considered as a fraudulent action.

Conversion for the purpose of polygamy

  • Taking references of different judgments it is quite evident that the conversion of religion for the purpose of second marriage in existence of previous marriage won’t be an aid to the punishment under Section 494 of IPC
  • In the case of Sarla Mudgal v. Union Of India [4] it was observed that her husband changed his religion to Islamic religion to get married to another woman. But it was seen that there was no dissolution of the first marriage. 
  • But the Supreme Court, in this case, decided that the changing of religion for the purpose of getting married to another person during the existence of the first marriage would amount to an offence under Section 494 of IPC.

Why is bigamy illegal

  • When bigamy is performed in the existence of the second marriage and the facts are not disclosed before the partners, then it is considered to be illegal.
  • When a person hides the fact of his previous marriage,e and gets married again, then it constitutes fraudulent action. Thus it is illegal.
  • In the case of existence of first marriage which is valid, when a person goes through another marriage then the other partner is deprived of rights that the person was entitled by law during the marriage. And according to law, no person would be deprived of rights.

Bigamy IPC

Section 494

  • This Section states that any person who is already having a husband or wife and marries another person in existence of previous spouse, then the person shall be punished with imprisonment which shall extend to seven years and would be liable to fine.
  • But a person can not be convicted under this section when the marriage has already been declared void by the court.
  • When one of the spouses is missing for a period of seven years and there is no information about his existence then the other partner can contract another marriage. But the spouse needs to open the facts before the person whom they are getting married.

Who can file bigamy charges

  • The person who has been cheated by their spouse in the contract of second marriage can only file a case against the person under this Section.
  • The first spouse does not have the right to file a complaint under this section.

In the case of women

  • She can herself file the complaint.
  • In the case of a wife, her father, mother, brother, sister or any person related to her by blood with the leave of the court can file a complaint on her behalf.

In the case of a husband

  • No person on behalf of the husband can file the case i.e, he has to file the complaint himself
  • But in the case of  the person in Armed Forces, who is not able to take leave to file the complaint exception is provided

Rights of the second wife

  • There is no provision for the right of a second wife in the case of a second marriage. She can not claim the property right of her husband.
  • But a second wife can claim the rights if the marriage is valid under the exceptions provided in Section 494 of IPC.
  • Where the second marriage has taken place according to the Hindu Marriage Act but is invalid according to the provisions of this act, then the second wife has no right to claim.

Child from the second marriage 

  • When the second marriage is declared valid, the child born would have equal rights as per the child from the first marriage have.
  • But if the second marriage is not valid according to the provisions of the Hindu Marriage Act, then also the child born out of the second marriage would inherit the same rights as the child from first marriage would.
  • Section 16 of the Hindu Marriage Act, provides provision where the second child can inherit the rights.

Bigamy in Goa

  • Any Muslim man who has done his marriage registration under Goa is not permitted to perform polygamy.
  • But Goa allows polygamy as well as bigamy in certain cases such as
  • When a wife of a previous marriage is not able to give birth to a child and she reaches the age of 25 years.
  • When the wife of a previous marriage is not able to give birth to a male child even after the completion of 30 years of age.
  • When the previous marriage is dissolved according to the provisions of the Goa Civil Code

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Reference 

[1] MANU/SC/0068/1965

[2] MANU/GJ/1225/2015

[3] Itwari vs. Asghari and Ors.  MANU/UP/0196/1960

[4] MANU/SC/0290/1995

 

 

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