Black’s Legal Dictionary defines bigamy “as the act of marrying a person while one is legally married to another.”[1]
The offence of bigamy is covered under both personal laws and criminal law in India. While the primary criminal code of the country the IPC establishes the offence of bigamy, the personal laws like Hindu Marriage Act, Special Marriage Act etc. provide for the recourse available to the aggrieved spouse and the effect of the offence on the institution of marriage.
In criminal law, Bigamy has been criminalized under section 494 and section 495 of the Indian Penal Code. Section 494 of the I.P.C states, “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”[2]
In India, people from different religions are governed by different personal laws, which lay down the remedies and the status of bigamous marriages under those particular personal laws.
In modern-day India, polygamy is prohibited amongst Hindus, Parsis, Christians, Jews and Muslim Women by virtue of their personal laws. It is pertinent to note that only Muslim men are allowed to marry more than once and have four wives.
In this essay, the author seeks to look into the various provisions under criminal law and different personal law proscribing bigamy. It also seeks to look into the standards and burden of proof to establish the offence, which according to the author inevitably involves an interface between criminal law and family law.
The author also seeks to establish the fact that the current penal and family law provisions are inadequate to protect women and the existing loopholes are very well exploited by the male gender to successfully evade their liability for entering into bigamous relationships.
It is pertinent to note that the 227th Law Commission has explicitly stated that most of the perpetrators with regards to the offence of bigamy are men and there are certain lacunas in the legislations, which need to be plugged.[3]
Bigamy under Family Law
The special marriage act only provides for monogamous marriages and lays down that “neither party should have a spouse living at the time of marriage” as an essential condition for the solemnization of a valid marriage.[4] Under the Special Marriages Act, section 43 and section 44 provide for the punishment for bigamy. Section 43 of the Special Marriage Act states that a person will be held liable under section 494 or 495 of the I.P.C. if he or she enters into the second marriage under the special marriage act during the lifetime of his or her spouse.[5] Similarly, section 44 states that if a person who is already married under the special marriage act and marries again during the lifetime of his or her spouse will be held liable under section 494 or 495 of the I.P.C. read with section 44 of the act.[6] In Rabindra Nath Dutta v. State,[7] the court declared the second marriage void when a person having already married as per Hindu rituals and ceremonies married again under the special marriage act, during the lifetime of the spouse, under section 43 of the special marriage act.
It is pertinent to note that these provisions apply to every marriage contracted under the special marriage act irrespective of the religion of the contracting parties. The courts have held that a Muslim man will be held guilty of bigamy by virtue of section 43 if he had contracted the earlier marriage under the special marriage act, 1954 and marries again during the lifetime of the first spouse.[8]
Section 24 of the special marriage act, 1954 explicitly states that all bigamous marriages are void.[9] It is pertinent to note that this is one of the novelties included in this legislation as its preceding statute i.e. the special marriage act, 1872 did not declare a bigamous marriage as void, though it provided for the prosecution of the person committing bigamy under section 494 and section 495.[10]
The author believes that the special marriage act is very unambiguous and efficient with regards to punishing and affording remedies for the offence of bigamy because to hold a person guilty for the offence of bigamy it must be proved that both the marriages are valid,[11] and it is very easy to prove that a marriage solemnized under the special marriage act is a valid marriage because it necessitates the registration of every marriage solemnized under its provisions.
The Indian Christian Marriage, 1872 and Indian Divorce Act, 1869, codify the law relating to the marriage and the divorce of Christians. Section 60 of the Indian Christian Marriage Act lays down the necessary conditions for the certification of marriages,[12] with one of the prerequisites being that “neither of the couples should have a spouse living”.[13] But it is stated that apart from section 60, there are other provisions as well under the Indian Christian Marriage Act which provide for the solemnization and the certification of marriages like section 25, 51 etc. On the basis of such provisions it can be said that the Indian Christian Marriage Act does not prohibit the solemnization of a bigamous marriage.
Section 18 and 19 of the Indian Divorce Act, 1869 provides that a spouse to marriage can file a petition for the declaration of marriage as null and void on the ground that the marriage was a bigamous marriage.[14]
The author believes that the Christian personal law on the issue of bigamy is weak as it always leaves some scope for the solemnization of a bigamous marriage i.e. a person already having a living spouse can solemnize the second marriage under the provisions of Indian Christian Marriage Act. One reason for such an omission could be that the Christian Marriages are believed to be inherently monogamous and the Christian religion is oblivious of the offence of bigamy.
The Hindu Marriage Act, 1955 codifies the law relating to the marriage and divorce of Hindus to a large extent and explicitly lays down that monogamy as the only form of righteous marriage and banning all forms of polygamy. Section 5 of the HMA, 1955 while laying down the essential conditions for the solemnization of a valid Hindu marriage explicitly states that neither party should have a living spouse, thus implying that monogamy is the only permitted form of marriage under the Hindu marriage act.[15] Section 11 of the Hindu Marriage Act in pursuance of the aforementioned provision states that any bigamous marriage will be void.[16]
The author believes that this codification of monogamy as the only valid form of marriage and provisions prohibiting and penalizing of the bigamy becomes very important because there have been evidence and religious texts, which indicate that though monogamy was the righteous form of marriage, polygamy was widely prevalent amongst the Hindus. There are ancient texts to suggest that Hindus were allowed to marry more than once albeit in some special circumstances like infertility of the first wife or her incapability of bearing a male child.[17]
The author submits that the codification of monogamous marriage under the Hindu Marriage Act enacted after independence is an expression of the Brahmanical norms and principles as the overarching law of all the Hindus.[18] It is stated that the British while reneging on their initial promise of non- interference in the personal laws of natives, began codifying the personal laws of Hindus and Muslims in order to bring uniformity and coherence in their administration. It was in this process of codification that they established the Brahmanical principles and notions as the comprehensive and all-inclusive law of the Hindus.[19]
The Hindu personal law is in stark contrast to other personal laws. While, the Special Marriage Act and the Indian Divorce Act, provide for bigamy as a ground for divorce, under the Hindu Marriage Act, Bigamy does not form a ground for divorce on its own but it is a ground for divorce under cruelty under section 13 of the Hindu Marriage Act.[20]
It is pertinent to note that section 17 of HMA,[21] provides for the prosecution of a person committing Bigamy under section 494 and 495 of the I.P.C.
Thus, both the Hindu Marriage Act and the Special Marriage Act provide for the offence of bigamy and its prosecution under the relevant provisions of the Indian Penal Code.
Standard of Proof for Bigamy
It is pertinent to note that the term ‘marriage’ in the phraseology of section 494 implies that that the marriage should be valid in accordance with the personal law.[22]
The courts have categorically stated that for a person to be convicted for the offence of bigamy it must be proved that the second marriage was solemnized during the lifetime of the first spouse and both the marriages are valid as per the rules laid down by their personal laws and is strictly in accordance with the essentials laid down by the law governing them.[23] For example: The Madras High court explicitly stated that to establish a person’s guilt under section 494 of the I.P.C who is governed by Hindu Marriage Act, it must be proved that the second marriage took place and all the essential ceremonies laid down under section 7 of the Hindu Marriage Act, were performed to solemnize the marriage.[24]
Under the Hindu Marriage Act, for a person to be liable under section 17 and be held guilty under section 494 of the I.P.C. for the offence of bigamy it should be proved that impugned marriage has been performed validly and in due form i.e. all the essential ceremonies laid down in section 7 of the HMA have performed duly. In the landmark judgment of Bhaurao Shankar Lokhande v. State of Maharashtra,[25] the court while elucidating on the ingredients of the offence of Bigamy, stated that it should be proved that the second marriage is a valid marriage and all the essential ceremonies to this effect were performed. It categorically stated that the mere intention to live as husband or wife would not form it a bigamous relationship.
The author believes that with reference to a marriage solemnized under the Hindu Marriage Act, evidence of essential ceremonies is a prerequisite to establish that the impugned marriage is a bigamous marriage and hold a person guilty for bigamy.
Section 7 of the HMA lays down the essential ceremonies necessary for the solemnization of a valid marriage.[26]
Basically, there are two essential ceremonies for the solemnization of a valid marriage, the first being solicitation to the holy fire and the second being the seven steps around the sacred fire by the couple which is also called the saptapadi.
A marriage can also be valid if it is solemnized in accordance with customary rites and rituals but the burden rests on the party asserting such a fact to prove that the performance of such customs and rites validates and consummates a marriage. It is pertinent to note that the courts in Devainai v. Chidambaram,[27]have explicitly stated that for a custom to validate a marriage such a custom or ritual should have ancient roots and should be binding on the members of a particular community.
To establish the charge of bigamy the validity of the first marriage should also be established i.e. it should be proved that all the essential ceremonies and rituals were performed. Proof regarding the validity of the first marriage should be well established in order to convict a person for the offence of bigamy under the Indian Penal Code. Thus implying that for a person to be convicted for the offence of bigamy under section 494 or section 495, the validity of both the marriages should be established. The burden to proof in both the cases rests on the prosecution.[28]
But it is pertinent to note that there is a strong presumption regarding the validity of the first marriage.[29] There are a number of factors, which raise a strong presumption that the first marriage is a valid marriage. The fact that the person and the first spouse had been living as a couple and were also perceived to be the same by the society adds weight to the presumption that the first marriage was a valid marriage one. The presumption is further strengthened by the fact that a child has been born out of the wedlock. In other words, when a man and a woman have been putting up together for a long period of time, have children out of the wedlock, the wife and the children are considered by the husband to be his own wife and husband, various government records like the ration card, school registers etc. there is strong presumption regarding the validity of the marriage. But it is pertinent to note that such a presumption is always rebuttable,[30] though the standard of proof required for rebutting such a presumption is very high. The courts have explicitly stated that a presumption regarding the validity of the first marriage is always drawn and it can be only rebutted by very cogent and strong evidence.[31]
Whereas, with regards to the second marriage, for bigamy to be established, it must be proved that the impugned marriage is a valid marriage and all the essential ceremonies have been performed.[32] There should be evidence to suggest that the essential ceremonies namely the saptapadi and homar, were performed to solemnize the marriage, and even an admission by the accused regarding the solemnization of the second marriage does not validate the second marriage and is not sufficient to establish the offence of bigamy.[33]
Remedies for Bigamy
In cases of Bigamous marriages, it is pertinent to note that the second wife does not have the status of the wife. It is pertinent to note that women in such relations have to face a lot of stigmas and their status in society is reduced to that of a concubine.
Though they are not accorded the status of a wife, if the second wife approaches the court to declare the marriage a nullity, she is entitled to both interim and permanent maintenance. In case of bigamous marriages, the aggrieved spouse can also approach the court and seek an injunction against such a marriage.[34] The aggrieved spouse can also approach the court and seek to issue a permanent injunction against the other spouse under section 9 of the Civil Procedure Code read alongside section 38 of the Specific Relief Act.
Section 494 and 495 of the Indian Penal Code penalize the offence of bigamy. An important and a fundamental principle of criminal law is the presence of criminal intent i.e. mens rea while committing a criminal act. The Common law system accords utmost importance to the element of guilty mind and the English courts have categorically stated that mens rea is an essential ingredient of an offence even if the statutory provision is silent with regards to the necessity of a guilty mind. It is pertinent to note that the requirement of mens rea can be done away with only if the statutory provision explicitly provides for such exclusion.
With regards to bigamy, it is pertinent to note that the provision in the I.P.C does not explicitly exclude the requirement of mens rea. Thus the author believes that mens rea is an essential ingredient of the offence of bigamy and the absence of mens rea rules out the possibility of the commission of the offence of bigamy. It is pertinent to note that the aforementioned view has also been upheld in many judicial pronouncements as well. Thus, the author states that a person cannot be convicted of the commission of the offence of bigamy if he in good faith believed to have no living spouse at the time of the impugned marriage. In Sankaran v. Krishnan,[35] the court stated that when a person marries under the honest belief that the divorce deed had done away with his first marriage and he had been conferred the right to remarry, it won’t amount to bigamy.
The offence of bigamy is a non-cognizable offence in India,[36] implying that the police does not have the power to arrest a person without a warrant or initiate investigations into the commission of the offence.[37] In other words, the courts and the police can take action against a person accused of bigamy only on the basis of a complaint filed by the aggrieved person. However, it is subject to some exceptions laid down in clause a to c of section 198 (1) of the Cr.P.C.,[38] the most notable of them being that if the aggrieved party is the wife, then the complaint can also be filed by any person related to the wife apart from the wife.
Conclusion – Way Ahead
The author believes that with a lot of women being economically and socially backwards and economically dependent, it is an onerous task for them to approach to the court to complain about the bigamous act of their spouse. Though the legislature has attempted such impediments through section 198(1) (c) of the Cr.P.C, it is pertinent to note that they still not serve the best interests of the aggrieved women.
The author further believes that the requirement of validating both the marriages to establish the offence of bigamy leaves a huge lacuna especially in cases involving Hindu Law. The fact that the performance of essential ceremonies as laid down in section 5 of the HMA should be proven to validate both the marriages infuses a degree of absurdness into the prosecution proceedings for the offence of bigamy.
It is not always easy to prove that all the essential ceremonies were performed in the solemnization of marriage. This situation is further aggravated by the fact that Hindu Law also recognizes the use of customs for the solemnization of marriages.
It is pertinent to note that many people manage to wriggle out of the criminal proceedings for the offence of bigamy by taking advantage of this vagueness.
The author submits that this legal procedure should be revamped and a single ceremony or registration certificates should be introduced to validate the marriage. It is firmly opined that either a single ceremony should be introduced or certificates should be issued at the time of marriage as proofs regarding the validity of the marriage.
It is also submitted that Bigamy
should be made a cognizable offence because of it an onerous task for the
aggrieved women to approach the court in wake of their social and economic
dependence in a patriarchal society like that of ours.
[1] Bryan A. Garner, Blacks legal dictionary 212 (9th ed. 2009).
[2] The Indian Penal Code, sec. 494, 1860, No. 45 of 1860.
[3] 227th Report of the Law Commission of India, Preventing Bigamy via Conversion to Islam – A Proposal for giving Statutory Effect to Supreme Court Rulings, 5th Aug, 2009.
[4] The Special Marriage Act, sec. 4(a), 1954, No. 43 of 1954.
[5] The Special Marriage Act, sec. 43, 1954, No. 43 of 1954.
[6] The Special Marriage Act, sec. 44, 1954, No. 43 of 1954.
[7] Rabindra Nath Dutta v. State, A.I.R. 1969 Cal 55 (India).
[8] Radhika Sameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad, 1997 CriLJ 1655 (India).
[9] The Special Marriage Act, sec. 24, 1954, No. 43 of 1954.
[10] Sephali Chatterjee v. Kamala Banerjee, A.I.R. 1972 All 531 (India).
[11] Bhaurao Shankar Lokhande v. State of Maharashtra, A.I.R 1965 S.C. 154 (India).
[12] The Indian Christian Marriage Act, sec. 60, 1872, No. 15 of 1872.
[13] The Indian Christian Marriage Act, sec. 60(2), 1872, No. 15 of 1872.
[14] The Indian Divorce Act, sec. 18-19, 1869, No. 4 of 1869.
[15] The Hindu Marriage Act, sec. 5(1) (a), 1955, No. 25 of 1955.
[16] The Hindu Marriage Act, sec. 11, 1955, No. 25 of 1955.
[17] Id. at 371.
[18] Flavian Agnes, Family Law 25 (2011).
[19] Id. at 27.
[20] Mayne, Hindu law and Usage 944 (16th ed. 2008).
[21] The Hindu Marriage Act, sec. 17, 1955, No. 25 of 1955.
[22] Subir Kumar Kundu v. State of West Bengal, (1991) 2 Cal LJ 71 (India).
[23] Saha, supra note 14, at 535.
[24] Gomathi v. Vijayraghavan, 1995 Cr LJ 81 (India).
[25] Bhaurao Shankar Lokhande v. State of Maharashtra, A.I.R. 1965 S.C. 154 (India).
[26] The Hindu Marriage Act, esc. 7, 1955, No. 25 of 1955.
[27] Devainai v. Chidambaram, A.I.R. 1954 Mad 657 (India).
[28] Kakarala Purnachandra Rao v. Kakarala Sita Devi, 1980 Cr Lj (N.O.C.) 118 (India).
[29] Manikyam v. Atchama, (1953) 1 Mad LJ 34 (India).
[30] Bikash Mukherjee v. Nanadarani, A.I.R. 1979 Cal 358 (India).
[31] Subhash Popatlal Shah v. Late Subhash Shah, (1994) 1 DMC 115 (India).
[32] Gopal Lal v. State of Rajasthan, A.I.R. 1979 S.C. 713 (India).
[33] Kanwal Ram v. Himachal Pradesh Administration, A.I.R. 1966 S.C. 614 (India).
[34] Shankarappa v. Basamma, A.I.R. 1964 Mys 247 (India).
[35] Sankaran v. Krishnan, 1989 Cr LJ 3 (India).
[36] The Code of Criminal Procedure, sec. 198, 1973, No. 2 of 1974.
[37] The Code of Criminal Procedure, sec. 2(1), 1973, No. 2 of 1974.
[38] The Code of Criminal Procedure, sec. 198, 1973, No. 2 of 1974.
This article is written by Ashish Gupta
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is a part of the 1st National Essay Competition, 2019.