This article talks about the fraudulent use of bigamy and the repercussion of this heinous practice in India.
Introduction
In Indian culture, marriage has been recognized as a pure sacrament between two individuals who join their hands and promise each other to remain with each other till the end of their lives. In some situations of marriage, one of the spouses intends on deceiving their partner by entering into a marital bond with a third person, which occurs during the lifetime of their partner. This act of marrying another person, other than your partner, whilst the partner is alive is called Bigamy. Bigamy has been prevalent in India for years and it was in practice by kings who tried to annex another kingdom by marrying the daughter of the emperor who possessed that land. Given the dynamics of diversity and broadness of India, there have been several religions that are practiced by the population of the country.
Although Bigamy has been criminalized under the Indian Penal Code (hereinafter, IPC), entering into marriage more than once is legal under some personal laws such as Muslim laws, etc. Due to the un-codified nature of India, many people marry twice whilst using a personal law as a shield to escape the scrutiny of legal proceedings that could be issued against them for committing a crime. Bigamy has been prohibited under Section 494, IPC. IPC proscribes the act of bigamy and considers any such marriage void from the very beginning if the person committing such an offense already has a living spouse at that time. Bigamy has been a debatable topic in law and many reformers have found it to be unjust and inequitable to the partner who has to bear the act of their spouse that commits bigamy.
Statutes Governing the offense of Bigamy
Section 494 & 495, Indian Penal Code
Section 494 of the Indian Penal Code explicitly states that whoever in the lifetime of their existing husband/wife marries another person, such a marriage would be considered void and is punishable with imprisonment which may extend up to seven years and will also be liable to fine. Therefore, it is a non-cognizable offense.
However, to prove that Bigamy took place, the following ingredients need to be established:
- The accused should have already been married/ contracted first marriage.
- The accused should have contracted the second marriage.
- The first marriage should be subsisting (must be in existence).
- The first husband/wife must be alive.
- Both the marriage should be valid.
One of the exceptions to section 494 is that if the husband or wife has been absent for a continuous period of seven years and has not been heard of by such person as being alive within that period. However, facts should be disclosed to the person, with whom the second marriage is contracted. Another exception is that if the competent court has declared the first marriage of such a person void, then he can contract a second marriage.
Section 495 of the Indian Penal code states that whoever tries to conceal their previous marriage to a person whom he/she subsequently marries, then such cheating and defraud is liable with imprisonment that may extend up to 10 years and shall also be liable to fine. Hence, this section prohibits the disguise of an already existing marriage and criminalizes it as an offense.
Personal Laws in India
Although Bigamy is punishable under the Indian Penal Code, there are several personal laws in India that either prohibit or propagate the act of Bigamy:
Hindu Marriage Act, 1955
Section 1 of this act specifically states the person that comes under the Hindu Marriage Act. According to section 17 of this act, any person who considers himself Hindu (under section 1), shall be held punishable if he/she marries more than once during their lifetime. Section 5 of the Hindu Marriage Act provides that both the partners willing to enter into wedlock should not have any living spouses at that time.
Parsi Marriage and Divorce Act, 1936
Section 4 of this act states that no Parsi shall contract any marriage if they have a spouse living at that point in time unless such a marriage has been lawfully declared void or has been dissolved.
Christian Marriage Act, 1872
The Christian Marriage Act does not have any specific provisions for Bigamy. Registration of marriage is only for Bachelor/Spinster and Widow/Widower. For the Marriage Certificate, Section 60 Sub Section (2) states that “neither of the persons intending to be married shall have a wife or husband still living”, and making false oath or declaration is punishable under Section 193 of IPC, this clarifies that more than one marriage would be considered illegal under this act.
Special Marriage Act, 1954
Section 44 of this act levies punishment for any person who contracts a marriage during the lifetime of his/her spouse and imposes a penalty under Section 494 and 495 of The Indian Penal Code.
Foreign Marriage Act, 1969
Section 19 of this act states the punishment for Bigamy and imposes a penalty under Section 494 and 495 of the Indian Penal Code.
Muslim Marriage Law
There is no codification or specific provisions for this law. It is written in the Quran that a Muslim male can marry two, three, or four times, if they are capable to treat and respect each wife equally after marriage, if not then only one. All Muslims in India are liable to follow the Muslim Personal Law (Sharia) Application Act of 1937, which is interpreted by the All India Muslim Personal Law Board.
Scheduled Tribes and Scheduled Castes
The government of India has made a conscious effort to protect the customary practices of the socially backward classes of the society and thus some statutory laws are made in such a way, to protect their beliefs and interests. Thus, Section 2 (2) of The Hindu Marriage Act states that “Nothing contained in this shall apply to the members of any Scheduled castes within the meaning of Article 366(25) of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.” Therefore, if practices like bigamy are practiced by such backward groups, then the punishment for such offenses will be looked into consideration.
Landmark Cases
Pashaura Singh v. State of Punjab
In the Pashaura Singh v. State of Punjab[1], the appellant had remarried after the dissolution of the first marriage and hence, the respondent cannot file a suit against the appellant claiming that he committed bigamy. The court held that “Section 494 of IPC requires the following ingredients to be satisfied, namely, (i) the accused must have contracted first marriage; (ii) he must have married again; (iii) the first marriage must be subsisting and (iv) the spouse must be living. Insofar as the present case is concerned the appellant’s marriage with the respondent was not subsisting when he is said to have married the second time.”
Neelaveni Vs. State Rep.By Insp.Of Police & Ors
In the case of Neelaveni Vs. State Rep.By Insp.Of Police & Ors[2], where the wife had appealed the decision of the High court for revoking the charge sheet filed under section 406 and section 494 of the Indian Penal Code. It was held “Report and the materials collected during the investigation are required to be considered” and “Truthfulness or otherwise of the allegations is not fit to be gone into at this stage as it is always a matter of trial.” Even though no evidence is required to lodge a complaint, it is always useful to collect evidence as mentioned above to solidify cases in trials.
Sarla Mudgal v. Union of India
In the landmark of Sarla Mudgal v. Union of India[3] judgment passed by the Supreme Court of India, In this case, there were four petitioners including Sarla Mudgal, Meena Mathur, and two other petitioners named Geeta Rani and Sushmita Ghosh. Sarla Mudgal managed an NGO named Kalyani. The second petitioner Meena Mathur, who had three children with her husband Jitender Mathur, was later found to be the husband of Sunita Narula a.k.a Fatima as his second wife after the conversion into Islam. When Jitender was asked the reason for conversion he stated that he did so for the sole purpose of marrying Sunita/Fatima. A child was born out of wedlock. The second wife claimed that under the influence of his first wife, Jitender converted his religion to Hinduism and agreed to maintain his first wife only and his children from her because of which Sunita/Fatima was unable to take compensation from him. Geeta Rani, who was married to Pradeep Kumar was being harassed by her husband, stated that her husband had married another girl by converting his religion to Islam and another petition- Sushmita Ghosh also has the same allegation on her husband and she wants to prevent her husband from marrying a woman called Vinita Gupta.
The Supreme Court held that “where any man (not Muslim initially) converts his religion into Islam for the sole purpose of contracting a second marriage without legally divorcing his first wife, the marriage shall be regarded as void and illegal and he shall be punished in the similar manner as he would have been punished had he not converted his religion.” Therefore, such a person would be punishable with imprisonment and a fine under section 494 and section 495 of The Indian Penal Code.
Priya Bala Ghosh v. Suresh Chandra Ghosh
In another case of Priya Bala Ghosh v. Suresh Chandra Ghosh[4], It was ruled out that if the alleged second marriage is not a valid one according to the law applicable to the parties, it will not be void because of its taking place during the lifetime of the husband or the wife of the person marrying so, as stated under section 494 of The Indian Penal Code.
Trailokya Mohan v State of Assam
In the case of Trailokya Mohan v State of Assam[5], the petitioner had an existing wife named Subarna Bala Nath, however, he remarried a second time to Shefali Debi and therefore, was charged the offense of Bigamy under IPC read with the Hindu Marriage Act, 1955. The accused reiterated that he did marry a second time and such an admission was corroborated by oral evidence of witnesses who in their cross-examination did not go against the fact that a second marriage was in existence. Thus, it was held that “the presumption of a valid marriage and where a strong satisfactory and conclusive evidence was present to rebut the presumption was lacking in the case, it must be held at a valid second marriage was solemnized and in such circumstances, the basis of the admission made by the accused could be relied upon.”
Naurang Singh v. Sapla Devi
In the case of Naurang Singh v. Sapla Devi[6], the petitioner filed an application under section 488 of The Criminal Procedure Code, claiming maintenance on the grounds that she married Naurang Singh twelve years ago. However, the relationship lasted only one year and Naurang Singh went to marry another, named Kalpa Devi. The petitioner claimed that her husband dispossessed her and threw her out of the house, driving her back to her father’s home. She also stated that the maintenance to her was neglected. The court held that she was entitled to maintenance even if she had lived with her husband for one year and a child was born out of wedlock.
Banshidhar v. Chhabi Chatterjee
In the case of Banshidhar v. Chhabi Chatterjee[7], a Hindu woman alleged that she had been married to the petitioner in 1962 however, the petitioner claimed that he had not been married to her and was already in a proven married since 1952, for which he had evidence for proof. The court also held that the petitioner’s marriage with the claimant would be void under Section 11 of The Hindu Marriage Act and a claim under Section 488 of CrPc would not subsist as the marriage was void and according to the Hindu Adoption and Maintenance Act, 1956, a wife in a void marriage cannot claim maintenance.
Kanwwl Ram and others v. The Himachal Pradesh Administration
In the case of Kanwwl Ram and others v. The Himachal Pradesh Administration[8], the Supreme Court held that “the witnesses have not proved that the essential ceremonies had been performed in the second marriage. It was contended that an admission made by the accused regarding the second marriage is conclusive of the fact of a second marriage has taken place and that without any other evidence a conviction could be based on such admission.” Therefore, with the help of the evidence of this case, the Supreme Court recapitulated the basic principles that govern “Bigamy” stating that to prove bigamy took place, the second marriage should have been performed with the suitable and established customs of marriage. Thus the Supreme Court held that, “it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it must be proved.
Current Scenario
In today’s time, although Bigamy has been looked down upon, there are various cases in which bigamous marriage is taking place without the wife/husband having any knowledge or information about it. In Indian society, a second wife is not accepted and not given any equitable rights as the first wife. Thus, in recent years it has been observed that there is a social stigma associated with second marriages and the deep pain one goes through in cases where the marriage is held void.
Under all personal laws except Muslim law, bigamy is explicitly prohibited. However, at present, Muslim law permits bigamy and polygamy provided the husband can treat all wives equally, otherwise one is allowed to keep only one wife. Children that are born out of void marriages, find it extremely difficult to get maintenance from their father. There have been numerous disputes where children are not given equal rights in the property. In order to eradicate the practice of Bigamy in India at present, the legislation should try to enforce a Uniform Civil Code.
International Perspective on Bigamy
Polygamy is infrequent in most parts of the world except a few countries. The United States of America criminalized bigamy and polygamy in 1882. The U.S.A has imposed strict laws against multiple partners in a marriage. However, in the state of Utah, a bill was passed for adults who voluntarily live in polygamous relationships, making the practice an infraction, a minor offense that is not punishable with jail time.
In other parts of the world like the Middle East and Asia, although bigamy is legal, it is not widely practiced. However, it has been observed that bigamy is widespread and legal in West and Central Africa. The majority of the countries that permit bigamy have a Muslim population, but not many are seen practicing it. Many of the countries that permit polygamy have fewer than 1% of Muslim men that live with more than one spouse. In countries like Afghanistan, Pakistan, Bangladesh, Iran, and Egypt, the practice is legal but not widely spread or practiced. Muslim men who observe bigamy claim that the Quran has allowed men to take up to four wives if the husband can take care of them equally. Although statistics show the prevalence of Bigamy in parts of the world, most people consider it unethical and immoral to take more than one wife, and hence this practice is gradually declining.
Conclusion
It is the tendency of a diverse country like India to take undue advantage of the legal loopholes that are readily available for escape. This can be seen in cases where a man conveniently changes his religion just so that he can marry and keep two wives. These fraudulent acts are not looked into it and the legislation has failed to take action against any such act that a man intends to commit. No law levies a restraining order on a husband that tries to remarry a second time. In such situations, the wife is left helpless and can only take protection under section 494 of The Indian Penal Code.
Time and again, it has been stated that no religion promotes immorality and exploitation of one’s sentiments even if that personal law permits bigamy. In order to curb the fraudulent acts of bigamy, there is an urgent need to implement a Uniform Civil Code (UCC) for this issue. One cannot escape the law under UCC and will be criminalized with the offense of bigamy, irrespective of the religion they profess. Although malpractice continues to exist, Bigamy has gradually slowed down to a large extent. The decrease in such a practice can help in the establishment and procurement of an ideal society to live in.
FAQs
How prevalent is the practice of Bigamy in today’s time?
Although Section 494 of The Indian Penal Code criminalizes the offense of bigamy, personal laws like Muslim sharia law permits bigamy due to which there have been cases where one fraudulently converts to another religion for marrying a second wife.
What are the property rights of a second wife, out of a void marriage?
The second wife does not possess any rights that normally the first wife possesses. The second wife doesn’t have the right to her spouse’s property unless such marriage is valid under exceptions provided in Section 494.
What are the repercussions in cases where the first marriage is not disclosed to the second wife?
Section 495 of the Indian Penal Code criminalizes any person who fraudulently cheats another by disclosing their marriage to them and such a marriage will be void from the very first day in existence.
Who is allowed to file a petition for declaring a bigamous marriage void?
The second wife has the right to declare her marriage void as per law and the first wife cannot hold any such claim.
What is the punishment for abetment of a bigamous marriage?
Whoever abets Bigamous offense shall be punishable under Section 494 read with Section 109 of IPC. A priest, who officiates a bigamous marriage, would be an abettor, but, the mere presence of persons at such a marriage would not necessarily constitute abetment.
To what extent does the legislation need to reexamine bigamy laws?
The legislation needs to establish a uniform civil code in order to protect those who are affected by bigamous marriages. The government needs to adhere to stricter policies to restrain one from committing such an offense.
Why is bigamy looked down upon in society?
The act of bigamy is emotionally torturous to the person who is affected by their partner’s actions and leads to injustice to the suffering person. Society deems this practice as immoral as it negatively affects the ethicality of society.
[2] CA NO.574
[3] AIR 1531 SC
[4] [1965] 2 S.C.R. 837
[5] AIR 1968 22
[6] AIR 1968 All. 1958
[7] AIR 1967 277
[8] AIR 1966 614