This article is written by R Sai Gayatri from Post Graduate College of Law, Osmania University. This article talks about the offence of bigamy in India and its provisions, its essential elements, the status of a second wife and the effect of bigamy on conversion and live-in relationships.
Table of Contents
Bigamy is the act of marrying one person when the individual is already legally married to another person. For example, if A is legally married to B and he proceeds to marry C during the subsistence of his marriage with B then A will be liable for bigamy. However, if the first marriage is declared void due to any reason, then such two individuals have the freedom to marry any person of their choice. When a couple is undergoing the procedure of divorce, neither of them can marry until and unless the divorce is final in the eyes of the law. In the present day, bigamy is penalized in many countries as their ideology is favourable towards monogamy however there are certain countries where bigamy is allowed legally. Let us know more about bigamy and the laws dealing with it in detail through this article.
Bigamy in India and its history
The presence of bigamy in India can be traced back to ancient times when the warrior sects and rich merchants had more than two living wives at the same time. This was done due to many reasons such as the expansion of ruling territory, for sealing peace pacts, for increasing the exchequer of the territory, etc. The rule of marriage however was always based on the concept of monogamy since the period of Manusmriti but with the exception of polygamous marriages.
The texts from Manusmriti, which is one of the primary sources of the Hindu Marriage Act, 1955 distinctly mention that if the wife is suffering from some disease, or if she cannot give birth to a child, or of such vicious nature that she could be superseded then the husband of such wife can marry another woman i.e, the second marriage will be considered legally valid. The condition however is that the first wife shall always be superior to the second wife and the first-born son of the first wife shall have primacy over the other sons of such husband. However, with the advent of British rule in India, the law was altered wherein a Hindu male who is already married once may marry again without any justification or the consent of his wife.
As time passed by, the personal laws of various religions were being given primary importance which in turn had several provisions that declared bigamy an offence. The laws such as the Parsi Marriage and Divorce Act (1936), Bombay Prevention of Hindu Bigamous Marriage Act (1946) and the Madras Hindu Bigamy (Prevention and Divorce) Act (1949) were the first among the several laws which recognized and penalized the offence of bigamy.
The Hindu Marriage Act, 1955, makes monogamy the mandate for all Hindus, Buddhists, Jains, and Sikhs. If a Hindu male marries another woman during the existence of his first wife, he shall be liable under Section 494 of the Indian Penal Code, 1860. Similarly, as per the Special Marriage Act, 1954, any marriage that is solemnized as per the provisions and the conditions of the said Act would be prohibited from taking the form of bigamy.
When it comes to the personal law of Muslims i.e, the Sharia law the practice of polygamy is legally allowed however the practice of polyandry is strictly prohibited. The Holy Quran governs all Muslims and the same states that a Muslim male may marry up to four women at the same time however he must be able to maintain and take care of them. Therefore, it can be understood that Islam does not prohibit bigamy.
In the case of Radhika Sameena v. SHO Habeeb Nagar Police Station, (1996), it was held that a Muslim male married under the Special Marriage Act, 1956 would be guilty under Section 494 of the IPC if he enters into another marriage as per the Muslim Law. Since his previous marriage was done as per the Special Marriage Act and not under Muslim Law, the provisions of the Special Marriage Act shall be applicable and not of the Muslim Law, thus the respondent’s marriage was held void.
Bigamy and the provisions of IPC
Section 494 of the Indian Penal Code, 1860
The Indian Penal Code, 1860 explains bigamy under Section 494. The said provision states that any person who already has a wife or husband living, further proceeds to marry another person while being lawfully wedded to such wife or husband shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Moreover, such marriage shall be considered void in whatsoever case.
There are certain exceptions to the aforementioned provision wherein the person who marries another individual shall not be liable for bigamy. The exceptions are as follows –
- The said provision does not extend to any individual whose marriage with their partner from the prior marriage has been declared void by a court of competent jurisdiction.
- The said provision does not extend to any individual who contracts a marriage during the lifetime of their former partner wherein such partner at the time of such individual’s second marriage was not heard of for a period of seven years or wherein there is no information of them being alive. By virtue of presumption provided under Section 108 of the Indian Evidence Act, 1872, it may be concluded that a person who has been missing for more than seven years is presumed to be dead and that when the individual contracts a second marriage, it shall be understood that no husband or wife is living at the time of the second marriage and thus, the offence of bigamy is not constituted. The condition that is inclusive of this exception is that the individual contracting the second marriage must, before the second marriage takes place, inform the person they are about to marry about the facts to the best of their knowledge regarding their previous partner.
Section 495 of the Indian Penal Code, 1860
Section 495 of the Indian Penal Code, 1860 further talks about the offence of bigamy but with the addition of the vice of concealment. When an individual does the act of bigamy by concealing the fact of their former marriage from the person with whom they contract their second marriage then such individual shall be liable under Section 495. Such individuals shall be punished with imprisonment of either description for a term which may extend up to ten years and shall be liable to fine or both. In addition to this, a complaint about cheating can be filed under Section 415 of IPC in case the individual conceals the fact of first marriage.
Essential elements to constitute the offence of bigamy
As per Section 494 of the Indian Penal Code, 1860, the following are the essential elements to constitute the offence of bigamy –
Existence of a prior lawful marriage
In the offence of bigamy, one of the essential elements is that of the existence of a prior lawful marriage. The mere subsistence of a prior lawful marriage itself declares the subsequent marriage void because it confirms the existence of a living wife or husband of such individual. In case the prior marriage is not valid in the eyes of the law then marrying again will not be labelled as bigamy.
Validity of subsequent marriage
It is understood from the first element that the prior marriage must be a lawful one, however, the second essential element is that the subsequent marriage in question must also be a lawfully valid one. The couple willing to marry must take part in all the mandatory rituals and ceremonies as required in the personal law that governs their marriage. In case the subsequent marriage is contracted without following or performing the required rituals then it shall be void in itself which in turn declares that the offence of bigamy cannot be constituted.
This element can be well understood through the case of Satya Devi v. Khem Chand (2013), wherein the wife filed a case against her husband for the offence of bigamy as well as cruelty. However, since she could not prove that her marriage was contracted in accordance with the law, the second marriage remained valid and her marriage was declared void. Therefore, the case was dismissed.
Existence of the partner from prior lawful marriage
The sole basis of the second marriage being void shall be due to the existence of the partner from the prior lawful marriage. This means that the wife or husband of such individual from the prior lawful marriage must be alive during the time of the subsequent marriage to declare it void and establish a case of bigamy. It is pertinent to note that this element does not apply to the cases where subsequent marriages are allowed by personal laws such as Sharia law.
Procedure to file a complaint against bigamy
The aggrieved person can record a case of bigamy either in the police station or at the court. The father of such an aggrieved female can likewise make a complaint under Section 494 and Section 495 of the Indian Penal Code, 1860. A request for declaring the subsequent marriage void can be recorded by the parties of such subsequent marriage and not the first partner.
Conversion and bigamy – the legal paradox
As the Hindu law strictly prohibits bigamy, the men belonging to the Hindu religion started to convert to Islam to be able to marry again during the subsistence of their first marriage. Since these men converted to Islam which permitted the practice of polygamy they could conveniently escape the legal consequences arising from the provisions of Hindu law which penalize bigamy.
In the landmark case of Sarla Mudgal v Union of India (1995), the Hon’ble Supreme Court dealt with the question of whether converting to Islam and contracting second marriage will be considered valid or not and if not, then will such individual be held liable for bigamy as per Section 494 of the Indian Penal Code, 1860 or not. In an attempt to answer these questions, the Apex Court stated that when two individuals marry each other as per the provisions of a particular personal law then such marriage shall continue to be governed under the same personal law irrespective of the fact that one of the individuals to the marriage has converted to another religion. Therefore, the individual who converts to another religion and attempts to or marries again during the subsistence of their first marriage will be held liable for bigamy. Such individuals shall not escape the legal consequences as elucidated under Section 494 of the IPC.
The case of Sarla Mudgal v Union of India thus established that by merely converting to another religion, no person can escape the liability for committing the offence of bigamy and the conversion itself does not free such person from the tenets of their first lawful marriage.
Status of a second wife in India
Even in the present day, various negative aspects come along when we think about the condition of second wives in our society. These may be the lack of recognition of the marriage, the burden of bearing the shame and hate from people, the pain of not being able to give her children a legal status which includes the problem of the succession of property, etc.
The Indian Penal Code, 1860 strictly prohibits bigamy and due to this reason there is no possibility of gaining legal recognition for the second wife, however, as per the circumstances of her marriage, she may be given certain rights and legal support. One of the instances where the second wife may claim rights and legal support is when the husband conceals the fact of his first marriage. In such a situation, the husband of the second wife will be liable under Section 495 of the Indian Penal Code, 1860.
Maintenance to the second wife
In a prima facie case of a second marriage, it might first appear that the second marriage is null and void as per the laws and thus the second wife shall not be entitled to get any maintenance but the Hon’ble Supreme Court through the landmark case of Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu & Anr (2011) stated that even the second wife can claim maintenance from her husband. It further held that the claim of maintenance cannot be refused on the ground of the validity of the marriage.
In the aforementioned case, the appellant Pyla Mutyalamma alias Satyavathi was the second wife of the respondent Pyla Suri Demudu. The two parties got married in a temple as per the Hindu rites in the year 1974. They had three children and after 25 years of their marriage, the respondent deserted her. After hearing both the parties, the Trial Court in Andhra Pradesh awarded Rupees 500/- as maintenance and on appeal by the respondent the Andhra Pradesh High Court set aside the order holding that since the appellant was the second wife of the respondent she was not entitled to maintenance. Aggrieved by the order of the High Court of Andhra Pradesh, the appellant appealed before the Supreme Court.
The Supreme Court held that if the second wife was deserted by her husband, she will be entitled to get maintenance from him under Section 125 of the Criminal Procedure Code, 1973, irrespective of the validity of the marriage. Section 125 of Cr.P.C. functions on de facto marriage and not marriage de jure. Hence, the validity of the marriage cannot be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled. In the present case, the Hon’ble Apex Court allowed the second wife’s appeal and restored the Trial Court’s order which granted her Rupees 500/- as maintenance.
Rights of children born out of second wedlock over father’s property
The children born out of second wedlock will have the right to inherit their father’s property. In the case of Revanasiddappa v. Mallikarjun (2011), it was held that children born out of second wedlock will have the right to their father’s ancestral property. Further, the Hindu Marriage Act under Section 16(3) does not mention any restriction on the property right of an illegitimate child. However, such property rights only extend to the property of the parents of such illegitimate children. Thus, such children will have the right over the property of their parents whether self-acquired or ancestral.
In the case of Vidyadhari & Ors v. Sukhrana Bai & Ors. (2008), it was held by the Supreme Court that the children born of second wedlock are entitled to a share in the property of their father, though the second marriage itself is void. If an individual marries a second time during the subsistence of his first marriage, the children born out of such wedlock will still be legitimate.
Will attending a second marriage amount to abetment or not?
Attending a second marriage will not amount to abetment of the same as there is no instigation or preparatory act present on the part of the attendees during the happening of such second marriage. In the case of Manju Verma and Ors. v. State & Anr. (2012) it was held that the mere participation of the attendees in the second marriage shall not amount to abetment as there is a lack of support, preparation or active suggestion towards the commission of bigamy on part of such attendees or relatives.
Further, in the case of Muthammal and Ors. v. Maruthathal (1981), it was held that only when there is evidence to prove that the attendees have in fact abetted or instigated the acts of the principal offender towards the commission of the crime of bigamy, only then such people will be held liable for abetment of the second marriage.
Live-in relationships and bigamy
Live-in relationships have been considered taboo in Indian society for a long time and the main factors for the non-acceptance of such relationships are the lack of legal recognition, pre-marital sex and illegitimate children. But the main question here is whether the anti-bigamy laws apply to live-in relationships or not. The offence of bigamy does not extend to live-in relationships because there is no presence of a legally valid marriage contracted between the two parties.
The Supreme Court in the case of Khushboo v. Kanniammal & Anr (2010) opined that when a man and woman live together without marriage, it cannot be considered as an offence. The Apex Court had also held that there was no law that prohibits or restricts live-in relationships or pre-marital sex.
Further, in the case of Tulsi v. Durghatiya & Ors (2008), it was held that the children born out of live-in relationships are not to be treated as illegitimate. However, there are certain conditions such as the parents must have cohabited for a considerable amount of time under one roof so that the society recognizes them as husband and wife i.e, there is a presumption of marriage between such couple. Another important case when it comes to live-in relationships is the case of Rameshchandra Daga v. Rameshwari Daga (2004) which recognized and upheld the maintenance rights of the women who are tied in invalid marriages or other such informal relationships.
Bigamy is the act of marrying one person when the individual is already legally married to another person. The Indian Penal Code, 1860 explains bigamy under Section 494. The said provision states that any person who already has a wife or husband living, further proceeds to marry another person while being lawfully wedded to such wife or husband shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Moreover, such marriage shall be considered void in whatsoever case.
Section 495 of the Indian Penal Code, 1860 further talks about the offence of bigamy but with the addition of the vice of concealment. When an individual does the act of bigamy by concealing the fact of their former marriage from the person with whom they contract their second marriage then such individual shall be liable under Section 495. It is important to have stringent laws to prevent and penalize the offence of bigamy thus the presence of the Indian Penal Code, 1860 is essential to prohibit people from using the conversion of religion as a license to commit the offence of bigamy.
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