This article is written by Pujari Dharani, a student at Pendekanti Law College, affiliated with Osmania University, Hyderabad. The article explains the offence under Section 494 of the Indian Penal Code, 1980, including its essential elements and nature, and, more importantly, the punishment for its commission in detail. The article further provided various defences and important case laws.

It has been published by Rachit Garg.

Introduction

From ancient times till 1955, polygyny and polyandry were practised by people, though the latter is less common. Polygyny is a practice that allows a man to have more than one wife at a time, while polyandry allows a woman to have two or more husbands simultaneously. Polygyny is well-recognised in Hindu law as well as Muslim law, whereas polyandry is considered immoral and not recognised in Hindu law, whose occurrences are very rare, besides the fact that polyandry is customary practice in very few areas like Lahaul Valley in Himachal Pradesh and among Thiyyas of South Malabar as recognised in Dr. M. Satyanarayana Reddy v. Rukma Bai and Ors. (2002).

However, in recent times, this practice of bigamy, which comprises both polygyny and polyandry, has caused many hardships to the spouses of those who are committing it. Maintaining many marriages at the same time also increases one’s marital responsibilities, which will become such a burden that failing to perform them would be inevitable. As a result, social institutions like marriage, which regulate and propagate an essential unit for any society, i.e., the family, are being damaged. Besides this, the other detriment associated with bigamous marriages is the suffering of the women and children involved in them. Even the United Nations Organisation (UNO) is against the practice of polygamous marriage, which violates the rights of women and their well-being.

Hence, the framers of the Indian Penal Code, 1860 (hereinafter mentioned as IPC), made the act of bigamy a serious punishable crime under Section 494 to protect the sanctity of marriage by abolishing bigamy and establishing monogamy as a rule for all Indians.

Crime defined under Section 494 IPC

Section 494 of the IPC defines and explains a crime, namely, marrying again during the lifetime of a husband or wife. This offence can, shortly, be termed “bigamy” under English law. Because this crime is closely associated with the institution of marriage, it was inserted under Chapter XX of the IPC which deals with the offences relating to marriage.

This provision makes a person liable to undergo the punishment prescribed under it because of marrying again despite having a legally wedded spouse, wife, or husband, as the case may be, and that subsequent marriage is considered to be void on the ground of infringing the statutory rule of monogamy. This provision also includes a description of the punishment for the offence of performing a void second marriage. The Section further provides exceptions to this punishment, which are explained in the later part of this article.

Illustrations

Let us take an illustration where a male and female legally solemnised their marriage a few years ago. Due to dissatisfaction with his wife, the husband leaves her without giving a divorce or dissolving the first marriage and marries again to another person, other than the present wife, during the persistence of the marriage with her. In this case, the husband is the offender due to his commission of the crime of bigamy, and the wife is an aggrieved party who is entitled to sue him.

Essential elements of bigamy under Section 494 IPC

The Indian Judiciary, including the Supreme Court of India, frequently repeats the significance of proving essential elements of bigamy to punish the criminal under Section 494 of the IPC. Those essential elements to convict a person of bigamy are as follows:

• The accused have already married in the past and that marriage should be a valid marriage that fulfils all essential elements, including the performance of required ceremonies, as per the personal laws of the parties to the marriage. If the first marriage is invalid, then the second marriage is not a bigamy. Thus, the validity of the first marriage is very significant and, hence, shall refer to the following statutory enactment.
  • The Hindu Marriage Act, 1955 applies to those who belong to Hinduism, Buddhism, Sikhism, and Jainism.
  • All relevant religious customs and usages of the Mohammedan and Jewish communities, in the case where parties to the marriage are Muslims or Jews, respectively.
  • The Indian Christian Marriage Act, 1872, in the case of native members of the religion of Christianity
  • In the case of Parsis, the statute that shall be referred to is the Parsi Marriage and Divorce Act, 1936.
  • If a marriage is solemnised under the Special Marriage Act, 1954, the provisions of this Act are referred to determine the validity of the wedding.
• Even if the first marriage is voidable, the subsequent marriage by the accused amounts to the crime of bigamy because a marriage shall always be valid until the person who was conferred with the right to repudiate it has not rescinded the marriage.
• The marriage in dispute, which was performed by the accused, should be second in order. The mere performance of the second marriage is not sufficient; it shall also be performed in conformity with every essential for a valid marriage, including important ceremonies and rites, according to the law to which they are governed. Additionally, the alleged second marriage of the accused shall be void on the ground of violating the monogamy rule.
• The subsistence of the first marriage of the accused is mandatory. Subsistence means the marriage is continuing and has not come to an end by a judicial decree like a grant of divorce or by any other means of repudiation of marriage. 
• Besides divorce, if the spouse, wife, or husband of the accused has passed away, then the marriage between them is considered to be dissolved. Hence, when it is said subsistence of the marriage, it means marriage is continuing with both spouses living together as husband and wife, and no dissolution of the marriage took place. This essential element is highlighted in the case of Pashaura Singh v. State of Punjab and Anr. (2010).

All the above essential elements are relevant considerations to constitute an offence of bigamy in a criminal court. Special emphasis is given to the important ceremonies that are mandatory to perform in a caste or community to solemnise a marriage. If either of these essential elements is failed to be proved by the complainant, although the accused intentionally married a person other than his or her spouse and performed a few religious ceremonies believing that such performance would confer a marital status on them, then the case of bigamy is not established. Thus, the mere intentions of the parties to the marriage are immaterial in establishing a case of bigamy.

Who can file a complaint

A complaint can be filed against a person who committed the punishable offence under Section 494 of the IPC, by his or her legal spouse, wife, or husband, as the case may be. There are no discriminatory restrictions that the victim or aggrieved party shall be only a wife. If a wife commits such a serious offence, her husband can file a complaint with an appropriate authority and succeed in punishing her by proving all the essentials of Section 494 of the IPC in a court of competent jurisdiction.

Complaint by the legal wife

If the aggrieved party in the case of bigamy is a legal wife, then Section 198(1)(c) of the CrPC allows either the wife or any of the following persons to file a complaint.

• Her parents, either father or mother;
• Her siblings, either brother or sister;
• Her children, either son or daughter;
• Her aunt or uncle, either paternal or maternal; or
• Any person who was related to her, either by blood, adoption, or marriage.

Complaint by the Armed Forces personnel

If the aggrieved party in a bigamous marriage is a legal husband, he is the competent person to lodge a complaint against the accused wife, not others. However, if he is an Armed Forces personnel who cannot obtain leave for this purpose, then any other person can file a complaint on his behalf in accordance with the procedure mentioned under Section 198(1)(b) of the CrPC.

Complaint by the second wife

To achieve the object of Section 494 of the IPC, the term “aggrieved party” shall be construed liberally and broadly by the courts in such a way as to include the second wife of the accused, even if such a marriage is void and she is not a legal spouse in the eyes of the law. Because the accused’s act of bigamy not only causes suffering to the first wife but also puts the social life of the second wife of the offender in danger. Therefore, the Supreme Court ruled in A. Subash Babu v. State of Andhra Pradesh and Anr. (2011) that the second wife of the accused is also considered to be a “wife” under the ambit of Section 494 of the IPC as well as an “aggrieved party” by competent authorities so that she is permitted to file a complaint against the offender, unless the second marriage is declared to be void by a decree as per Section 11 of the Hindu Marriage Act, 1955.

Jurisdiction of the court to try the case of bigamy

The jurisdiction of the court to conduct criminal proceedings for bigamy cases is provided under Section 182(2) of the Criminal Procedure Code, 1973 (hereinafter referred to as the “CrPC”). This provision states that a case of bigamy can be tried only by those courts that have local jurisdiction in either of the following places.

• Where the alleged crime is committed;
• Where the accused last resides with the other spouse of the first marriage;
• Where the first wife is permanently residing after the alleged commission of the offence of bigamy.

Nature of the offence under Section 494 IPC

The nature of the offence specified under Section 494 of the IPC is non-cognizable, bailable, compoundable, and triable by the magistrate of the first class.

Non-cognizable

The framers of the Indian Penal Code meant the offence of marrying again during the lifetime of the husband or wife was a very serious offence due to its adverse effect on the roots of the marriage institution. But it was made non-cognizable under the First Schedule of the CrPC, due to which the police officer who is charged with such a bigamy case is not empowered to arrest the accused and conduct any kind of investigation into the case unless the court grants permission for such functions of the police.

Here, it is worth considering that the bigamy case is related to the institution of marriage and, therefore, Section 198 of the CrPC shall be followed. According to this provision, the Court is also not authorised to take cognizance of any offence mentioned under Chapter XX of the IPC, i.e., those offences relating to marriage. Thus, in cases under Section 494, which is included in Chapter XX of the IPC, no court shall take cognizance of the offence of bigamy. But there are two exceptions to this rule, as stated in Section 198 of the CrPC. Those are:

• When a victim of bigamy lodges a complaint.
• When the police officer in charge filed a charge sheet.

In either of the above cases, the court can take cognizance of the offence even if it is a marriage-related offence. In the case of Ushaben v. Kishorbhai Chunilal Talpada and Ors. (2012), the Supreme Court held that, if a complainant alleges the commission of the offence under both Section 494 and 498A of the IPC, the court can take cognizance of that mentioned in a police report by virtue of Section 155(4) of the CrPC.

To learn about Section 198 of the IPC in detail, click here.

Bailable

Commonly, almost all non-cognizable offences are bailable, just like in the case of Section 494 of the IPC. Hence, the accused of bigamy can receive bail from a court as a matter of right. However, one has to submit bail bonds, and other requirements to avail of bail must be fulfilled to obtain bail.

Compoundable

The offence under Section 494 of the IPC is compoundable. According to Section 320 of the CrPC, the accused and his or her spouse can compound and settle the disputed matter. Furthermore, to enforce the settlement made by the parties to the suit, the permission of the court is mandatory.

Triable by the magistrate of first class

The First Schedule of the CrPC stipulates that the offence under Section 494 of the IPC shall be triable by the magistrate of the first class, who is eligible to pass a decree that punishes the convict for up to three years.

State Amendment in Andhra Pradesh state

Through the Code of Criminal Procedure (Andhra Pradesh State Amendment) Act, 1992, the state of Andhra Pradesh altered the nature of the offence of marrying again during the lifetime of a spouse to cognisable, non-bailable and non-compoundable, which applies only to the extent of Andhra Pradesh territories. This conveys that the government of Andhra Pradesh felt that the gravity of the crime’s consequences in the state was so horrible. Thus, the police can arrest the accused, register the case, and start investigating without the court’s permission. Also, the accused cannot obtain bail as a matter of right, and compounding the case is not allowed.

It is appreciated that the then Andhra Pradesh government rightly made an amendment to the First Schedule of the CrPC and made the serious offence of bigamy cognisable so that the police officer in charge of a particular case can immediately take action without any warrant if the case is against the accused. In accordance with this State amendment, the Sub-Inspector of Police, in D. Vijayalakshmi v. D. Sanjeeva Reddy (2001), took cognizance of a bigamy case by filing a charge sheet after knowing that the initial investigation proved the allegations of the complainant. The Andhra Pradesh High Court held that the said police officer was empowered to investigate without any warrant and did not violate any law because the President approved the said state amendment and, further, decided that State law would prevail over the central law in respect of the present case concerned since this subject is on the Concurrent list. However, the Court cautioned that Section 198 of the IPC is intact and unamended and, therefore, should be followed in cases related to the institution of marriage.

Punishment under Section 494 IPC

Marrying for the second time during the subsistence of the first marriage with the spouse living is a punishable offence under Section 494 of the IPC. In this provision, the maximum punishment for such an offence is prescribed, that is, imprisonment for a period of seven years. The Penal Code did not mention any minimum punishment for the convict. But it is for the appropriate court to decide upon this matter by examining the facts and circumstances of each case. Additionally, the Court will decide upon the merits of the case whether to order rigorous imprisonment or simple imprisonment.

Not only is the offender jailed, but he is also liable to pay a fine. However, the minimum and maximum fines payable are not stipulated by the Code. It differs from case to case.

Scope of the punishment

Though the Indian Penal Code is a secular and general code that applies to every Indian irrespective of the religion to which the accused belongs, Section 494 of the IPC does not apply to male members of the Muslim community. This exclusion is due to the provision in Muslim marriage laws, including the Muslim Personal Law (Shariat) Application Act, 1937, that permits a Muslim man to marry another woman even when his wife is alive and is not divorced. Mohammedan laws allow Muslim men to marry up to four women under certain conditions. (To know more about the legality of polygamy in India, click here). Except for Muslim men, the provisions of Section 494 of the IPC apply to every person in India, including Muslim women. Therefore, a Muslim man can escape punishment even if he practices bigamy.

Nevertheless, if a four-time married Muslim man marries again for the fifth time during the subsistence of his stated four marriages, then it shall be considered that he committed the crime of bigamy, and Section 494 of the IPC applies to him. In the case of Dr. Surajmani Stella Kujur v. Durga Charan Hansdah and Anr. (2001), the Supreme Court ruled that the fifth marriage of a Muslim man would be deemed void because Muslim personal laws allow a Muslim man to have only four wives at a time, not more than four. Further, the Court held that the Muslim man who married for the fifth time would be punished under Section 494 of the IPC.

Evidence by the prosecution

Firstly, the prosecution shall establish all the essential elements of the commission of bigamy, which are discussed above, before the criminal courts to punish the wrongdoer. Every essential element should be backed up with some evidence to prove it. The belief in being married and its subsistence among the couple are not enough. Even if society assumes and treats them as husband and wife, the relationship between them cannot be regarded as a valid marriage by the court. Rather, if the performance of the marriage is made valid and the same has been proved with evidence, then the court can regard it as a valid marriage.

Initially, the courts were strict in imposing the prosecution’s burden of proving the ceremonies that were performed while solemnizing the marriage. However, the courts have been changing their position in this respect. A similar position was taken by the Bombay High Court in a leading authority, Smt. Indu Bhagya Natekar v. Bhagya Pandurang Natekar (1992), where it was held that the courts should adopt a practical approach while examining the evidence, either oral, direct, or circumstantial, that proves the charge of bigamy. And the evidence does not always necessarily prove the ceremonies for solemnizing the second marriage. From this, we can conclude that for proving the performance of marriage, it is not strictly mandatory to prove all requisite religious ceremonies, but the submission of any other reliable evidence that establishes the offence of bigamy by the accused is sufficient to punish him.

The major drawback concerning the submission of evidence by the prosecution is that neither the Supreme Court nor the High Courts laid down guidelines or modes of proof in the bigamy cases.

How to defend against a charge under Section 494 IPC

The following defences can be used by the accused, who was innocent in his or her acts, to defend themselves legitimately and evade punishment under Section 494 of the IPC.

No subsistence of the first marriage

The subsistence of a marriage means the marriage is continuing without being dissolved. The concept of divorce, or dissolution of marriage, is part of every personal law in India. In bigamy, a person who marries again shall be punished for his commission, which causes mental trauma to the first spouse. On the other hand, if the first marriage is not subsisting and was dissolved in whichever manner, then the parties are said to have moved on and attained the freedom to marry again.

A marriage shall be dissolved only by the decree of the court, not otherwise. Thus, the court of competent jurisdiction shall pass a declaration that the first marriage is void, and only then is that marriage considered to not be subsisting.

To learn about the concept of dissolution of marriage and its methods under various personal laws, click here and here.

In the case of parties being members of the Muslim community, to decide whether a first marriage is subsisting or not, Mohammedan law should be referred to. This Muslim personal law allows a Muslim girl who was married to a Mulsim male before her puberty by her father or grandfather to do the following regarding the subsistence of the marriage.

• To ratify the marriage if the girl belongs to Shia; or
• To cancel the marriage if the girl belongs to Sunni.

Desertion by the first spouse

Suppose the first spouse has continually absent or deserted the accused for more than seven years, and this information is conveyed to the second spouse before marriage. In that case, the performance of the second marriage, even if the first marriage is subsisting, shall not be construed as an offence of bigamy.

If the accused wants to avail this defence, he or she has a burden of proving things, namely:

• Either of the parties to the first marriage disappeared continuously for seven years or more. That is, one spouse neither physically met the other nor communicated through any mode of telecommunications.
• Such a spouse who was absent for so many years is alive after those seven years. If he or she is dead, then this defence cannot be pleaded.
• The accused should inform the other party of this fact about the second marriage. If he or she has no knowledge of this fact because of the accused’s concealment, then this defence would not work.

If all the above is proved by the accused during trial, he or she shall not be guilty of the crime of bigamy.

Either the first or second marriage is invalid

If the first marriage is not valid, then the second marriage shall not be void and would not amount to the offence of bigamy, and vice versa. By proving either marriage invalid, the accused can escape conviction under Section 494 of the IPC.

Let us take the first scenario where the first marriage is void because of the non-fulfilment of either of the essential elements mentioned in the personal laws to which the parties are subject. In this case, if the first marriage is proved to be invalid, then the parties to that marriage are not legally married, and, hence, the law permits them to marry again. In M.M. Malhotra v. Union of India and Ors. (2006), the Supreme Court decided that a subsequent marriage by the husband during the subsistence of the first marriage would not make him guilty of the offence of bigamy if the said first marriage is proved to be void. In this way, the accused can escape the charges under Section 494 of the IPC by defending himself by proving that one or more of the essential elements of a valid marriage were not fulfilled during the performance of the first marriage.

In the second scenario, where the second marriage is invalid, there will be no question of bigamy because an invalid marriage is no marriage according to Indian laws. If the accused wants to escape the charges of bigamy by taking this defence, he or she can prove that the second marriage is void due to non-conformity to the legal and customary requirements, which are essential to their caste or religion. Once the accused can prove this in a competent court with sufficient evidence, he can safely go unpunished. In this regard, the well-known decision given by the Supreme Court of India in the case of Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra and Anr. (1965). In this case, the second marriage was performed without duly following the religious ceremonies as per the provisions of the Hindu Marriage Act, 1955, which was proved by the accused as a defence. The Supreme Court stated that even if society and the couple themselves believe that they are husband and wife, the Court still considers them a married couple only when their marriage fulfils all conditions under the Hindu Marriage Act, which was not done in the present case. Hence, the court acquitted the accused of the bigamy charges.

Here, we can understand that great importance is given to the conduct of ceremonies to establish the second marriage. It is well known that two people, despite intending to live as a couple, who did not perform the essential ceremonies, were not regarded as legally wedded husband and wife. Similarly, if the accused of bigamy omitted to conduct essential ceremonies while performing a bigamous marriage, either deliberately or inadvertently, he or she is not liable for the offence of bigamy. For instance, a husband left his wife and started cohabiting with another woman. Even if their live-in relationship is prolonged for a significant time and obtains the status of ‘relationship in the nature of marriage’, it still cannot be considered a bigamous marriage due to the non-conformity of the condition of performing essential ceremonies.

In addition to this, the confession of the accused regarding his second marriage shall not be taken as evidence to prove the case of bigamy. This was also ruled by the Supreme Court in the case of Kanwal Ram and Ors. v. the Himachal Pradesh Administration (1966). Also, the registration of the second marriage is not solemnisation of marriage, and, hence, the submission of the registration certificate pricing such a marriage is also not sound evidence to prove the validity of the second marriage. A similar decision was delivered by the Calcutta High Court in Sm. Baby Kar Roy v. Ram Rati Devi and Anr. (1975).

Immunity to Muslim men

As already stated, men from the Muslim community have special immunity from prosecution under Section 494 of the IPC, for up to four marriages, provided all conditions mentioned in the Mohammedan law have been followed. Thus, a Muslim man, who married again during the subsistence of his previous marriage or three marriages, can take the provisions of Mohammedan law as a defence to escape the punishment mentioned in Section 494 of the IPC.

It is very important to consider that there is an essential condition to submitting the said defence in a court of law. That condition is that the accused Muslim male should marry again only according to Mohammedan law and not under other personal laws. The relevant authority in this regard is the decision of the Allahabad High Court in the case Anwar Ahmad v, State of Uttar Pradesh and Anr. (1991). In this case, the accused, who belongs to the Muslim religion, married for the second time under the Special Marriage Act, 1954. Furthermore, in the affidavit concerning the second marriage, he also concealed the fact of his first marriage. The accused pleaded that his personal laws allowed him to marry a second time. In this case, the Allahabad High Court decided that the accused’s second marriage amounts to bigamy punishable under Section 494 of the IPC, not because the Mohammedan law will not allow multiple marriages but because he did not fulfil the condition of marrying under his personal law.

Second marriage after the grant of ex parte divorce

This defence can very well be explained with the help of case law, i.e., Krishna Gopal Divedi v. Prabha Divedi (2002). In this case, the accused contracted a second marriage after obtaining an ex parte decree of divorce from the competent court. Unexpectedly, after the second marriage, the first wife approached the court to set aside the stated decree and accomplished the same. Because the first marriage is not dissolved through a divorce decree, the first wife files a complaint against the accused under Section 494 of the IPC.

The Supreme Court held that the performance of a second marriage by the accused after attaining the ex parte decree is not an offence under Section 494 of the IPC because, during such a period, the first marriage is not subsisting. The Court cited the possibility that the case may be one of adultery if proven, but not bigamy, and termed the criminal proceedings against the innocent “an exercise of futility”.

Muslim women marrying during Iddat

As per Mohammedan law, Iddat (or Iddah) is a duration, that occurs after the death of a Muslim woman’s husband or after divorce between them. During this period of three months, such Muslim women are prohibited from contracting a marriage with another man. Suppose a divorced woman married another man by going against the concept of Iddat; such a marriage is termed void according to Mohammedan law. Nevertheless, Section 464 of the IPC is not applicable in this case, and such women are not punishable for bigamy. 

In Abdul Gani and Ors. v. Azizul Haq (1911), a Muslim woman is charged under Section 494 of the IPC for marrying another man during her Iddat. She rightly defended herself, saying that her second marriage was considered void because she violated the Muslim doctrine of Iddat, which has no link with the Indian Penal Code. The Calcutta High Court approved her defence and held that a re-marriage by a Muslim woman during the period of Iddat is just a civil wrong that results in the nullity of the marriage but not a criminal offence of bigamy under the Indian Penal Code.

To learn about the concept of Iddat under Muslim personal law, click here.

Bad defences

The following may seem like defences to a layman, but the court would not regard them as defences.

Good faith and mistake of law are not defences for Section 494 IPC

In the case of Narantakath Avullah v. Parakkal Mammu And Ors. (1922), a woman is accused of committing the crime of bigamy. In this case, the accused took a plea of good faith as well as the absence of criminal intent. Because the lawyers to whom she consulted affirmed that she was entitled to remarry on the ground that her first husband was an apostate because of becoming an Ahmadee. The Madras High Court highlighted Section 79 of the IPC, which exempts those offenders who committed a crime by mistake of fact, not because of a mistake of law, in good faith, and discarded the pleas of good faith and mistake of law that were taken by the accused.

Permission of the first spouse for the second marriage is no defence for Section 494 IPC

Let us take a case where the first spouse of the accused allowed her husband to marry again and keep the second spouse. The first spouse’s permission is no exception to the application of Section 494 of the IPC, even if such permission is free and voluntary. Thus, permission given by the wife is not a defence for the accusation of the commission of a crime under Section 494 of the IPC. In a similar case, Smt. Santosh Kumari v. Surjit Singh (1990), the accused pleaded that his legally recognised first wife consented to his second marriage, which was contracted to fulfil his sexual desires that were not fulfilled by his first wife because of her physical weakness. The Himachal Pradesh High Court, in this case, affirmed that the offender violated Section 5(i) of the Hindu Marriage Act, 1955.

Important case laws on Section 494 IPC

Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra and Anr. (1965)

The leading authority emphasising the importance of a second marriage being valid as an essential condition to establish the crime under Section 494 of the IPC is Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra and Anr. (1965). It further states that the intentions of the parties are not significant considerations for proving bigamy. In this case, the accused performed the second marriage following the Gandharva form but did not solemnise it with the necessary ceremonies mandated by the Hindu Marriage Act, 1955. On this ground, the Supreme Court acquitted the accused of charges under Section 494 of the IPC.

Sarla Mudgal v. Union Of India and Ors. (1995)

Smt. Sarla Mudgal, President, Kalyani and Ors. v. Union of India and Ors. (1995) is a landmark judgement both in the case of bigamy laws as well as the Uniform Civil Code (UCC). The Supreme Court answered the controversial question of whether a Hindu married man can solemnize a second marriage during the persistence of his first marriage after converting to the Muslim religion, which allows bigamous marriage. The Court outrightly held the second marriage void and convicted the accused under Section 494 of the IPC due to the presence of all essential elements to constitute the case of bigamy.

Lily Thomas v. Union of India and Ors. (2000)

In the case of Lily Thomas v. Union of India and Ors. (2000), the Hindu married man had converted to the Muslim religion solely for marrying for the second time, not because he had genuine faith in that religion. This was established by providing evidence that the accused did not perform any Muslim religious ceremonies or change his name.

The court decided upon the merits of the case that the accused is guilty of bigamy, although he converted to Islam religion, under Section 17 of the Hindu Marriage Act, 1955, read with Section 494 of the IPC.

The Supreme Court finally quoted: “Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fiber.”

Saraswathi v. Thirupathi (2014)

The respondent, in the case of Saraswathi v. Thirupathi (2014), committed the crime of bigamy and was convicted under Section 494 of the IPC by the trial court. On appeal, the matter went to the Madras High Court, which upheld the conviction made by the trial court. Thus, the respondent, for his act of bigamous marriage, is liable to undergo two years of rigorous punishment and one month of simple imprisonment with a fine of Rs. 1000.

Ravinder Kaur v. Anil Kumar (2015)

The best authority where the offence under Section 494 of the IPC was compounded is Ravinder Kaur v. Anil Kumar (2015). The respondent, in this case, was charged with bigamy by his wife, the appellant. For the reason that the respondent already consummated his second marriage and gave birth to two children, the appellant has no objection to compounding the offence. The Supreme Court accepted the request of the appellant, compounded her complaint, and ordered the respondent to pay compensation of Rs. 5 lakhs to the appellant.

Drawbacks of Section 494 IPC

The first major drawback of Section 494 of the IPC is the requirement to prove the validity of both marriages to establish the case of bigamy. It may be reasonable and logical in many aspects. But, in practical scenarios, especially where the accused is successful in proving the invalidity of either of the marriages he made and obtains acquittal from the court, it is causing injustice to the victims. For example, the accused took only six nuptial rounds, instead of seven nuptial rounds (saptapadi), while performing the second marriage, and by proving this, he can successfully get away with the conviction for bigamy due to the invalidity of the second marriage.

In this way, the accused who destroyed the lives of two persons may avoid punishment by using this loophole in Section 494 of the IPC, which ultimately results in injustice to those who suffered due to the attempt made by the accused. Bigamous and polygamous marriages are made illegal in India for a purpose, that is, to safeguard the interests of the spouses of the offender. To achieve this end, the legislature must amend Section 494 of the IPC due to the presence of various loopholes in the provision. Polygamy opponents advocate such an amendment, which treats all kinds of attempts at bigamy or polygamy as punishable crimes. They argue that those who attempt to marry another shall be punished, even though such a marriage is not valid in the eyes of the law. Because those persons have the intention to convict bigamy despite knowing it is a crime.

Apart from the steps that should be taken by the legislature, the Indian Judiciary should actively participate in solving this problem. To punish persons who committed serious marital crimes like bigamy, the courts should interpret the law constructively and liberally and broaden it to ensure the purpose is achieved.

The second major drawback of Section 494 of the IPC is the problem with the Uniform Civil Code. After reading this article, one can understand how a provision is differently applicable to various persons just because they belong to different religions. The Supreme Court observed this problem and requested the Indian government, in the Lily Thomas case, to enact a Uniform Civil Code (UCC) that applies to all religions and throughout India by exercising Article 44 of the Constitution of India. This Uniform Civil Code regarding offences relating to the institution of marriage aims to prevent the misuse of the right to convert to another religion by the offender for the purpose of having a second wife. Therefore, at present, a Uniform Civil Code is desirable for many reasons.

Conclusion

We can conclude that the crime under Section 494 of the IPC is a serious offence for which punishment goes up to seven years, along with a penalty of any amount. The Indian Judiciary, in various important cases, mandated the prosecution to prove essential elements to make the accused liable under this section. However, there are a few reasonable exceptions where the accused cannot be found guilty under Section 494 of the IPC. Furthermore, the section has been criticised due to its discrimination in the application of the provision, and, in this regard, even the Supreme Court urged the legislature to take steps for the Uniform Civil Code to solve various issues.

Frequently Asked Questions (FAQs)

Whether bigamy is allowed in India?

Bigamy, which means marrying a person other than his or her spouse during the persistence of the present marriage, is not just prohibited but also punishable under Section 494 of the IPC. The commission of this crime has a maximum punishment of seven years with a fine.

Which international organisations speak about polygamous marriage?

United Nations Organisation’s Committee on the Elimination of Discrimination against Women in its General Recommendations on Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women urged the nations that allow any form of polygamy under customary law to abolish or discourage such practices that compel a woman to engage in them against her interests. It was also deeply worried about the women and their children, whose rights are violated due to these marriages.

Which Muslim nations prohibit the practice of polygamy?

Three Muslim nations recognised the heinous practice of polygamy, which makes women suffer throughout their lives, and abolished the same, despite the fact that they regard it as their custom. Among them, Turkey is the first Muslim nation to do so. Apart from Turkey, other Muslim nations include Tunisia and Israel. Various other nations, including India, did not ban polygamy among Muslim men but restricted it to some extent.

References

• “The Indian Penal Code” authored by Ratanlal and Dhirajlal.
• https://prsindia.org/bills/states/the-andhra-pradesh-panchayat-raj-second-amendment-ordinance-2020
• https://www.shadesofknife.in/tag/ipc-494-compoundable-offence-in-andhra-pradesh/

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