IS BIGAMY LEGAL IN INDIA?

IS BIGAMY LEGAL IN INDIA?

Shruti Gupta, 4BA LLB, Christ (Deemed to be University), Delhi- NCR

ABSTRACT

This paper talks about the practice of bigamy in India and how it originated in the past during the king’s rule and its relevance in the Indian statute. Factors that are essential for bigamy to be held relevant only when it is shown that the person is already married and is in a process to get married again. It also views how Indian law reacts to bigamy and how different religions see it and how their laws give it validation or just hold it invalid. Different religious practices have different views regarding various practices but some see it the same as Indian statute sees it. Under Indian Penal Code Section 494, “if a person marries for the second time during the lifetime of his wife or her husband without divorce, the marriage is void. If convicted of the offence, the person shall be punished with imprisonment of “either description for a term which may extend to seven years”.

ORIGIN OF THE PRACTICE OF BIGAMY

Bigamy has existed as a common practice since the Vedic era. Kings and princes used to have several spouses. All religions, namely Hindus, Muslims, Buddhists, Christians, and Sikhs, were impacted by bigamy. It is still unclear when bigamy first became prevalent. It was never viewed as a crime until the Indian Penal Code (IPC) was created in 1860. “Marrying again during the lifetime of husband or wife,” as stated in Section 494 In addition to being subject to a fine, anybody who marries while their spouse is still alive and the marriage is void because it occurred while they are still alive will be penalised by imprisonment of any kind, with a maximum sentence of seven years. Bigamy is a crime that is not cognizable and is subject to bond. It is against the law for either the husband or the wife to hide the fact that they were married before”, according to Section 495 of the IPC.”

The Indian Penal Code, in its exception clause, delineates circumstances where the provisions specified under the aforementioned sections would not apply. These exceptions include scenarios where a person’s marriage with the spouse in question has been judicially declared void by a competent court. Additionally, the provisions do not extend to individuals contracting a subsequent marriage during the existence of a former spouse, provided certain conditions are met. One such condition specifies that if a spouse remains continuously absent for a period of seven years without being heard of as alive during that time, and the individual seeking to contract a subsequent marriage has informed their intended spouse of the actual circumstances, the provisions of the IPC regarding bigamy wouldn’t be applicable. 

Essentially, these sections of the Indian Penal Code concerning bigamy would only come into effect if the second marriage, deemed bigamous, was deemed unlawful by another pertinent legislation that governs the specific circumstances of the individuals involved in that particular case.

ESSENTIAL FACTORS OF BIGAMY

1. Existence of an earlier marriage is the primary component of bigamy.The fact that the individual was previously married at the time of the second marriage must be shown.

2. For this section’s restrictions to apply, the first and second marriages must both be legal unions.

3. Only because the second marriage took place while the original husband or wife was still alive, and for no other reason, must it be declared null and void.

WHO CAN FILE A COMPLAINT?

Under Section 198 of the Indian Penal Code (IPC), the provision allows only the aggrieved party affected by their spouse’s act of contracting a second marriage to file a complaint. For husbands, specifically, the right to file a complaint rests solely with the husband himself, except in cases where the husband is serving in the Armed Forces and is unable to obtain leave to file the complaint.

In instances involving wives, the right to file a complaint is extended to the wife herself or her immediate family members, including her father, mother, brother, sister, son, daughter, father’s or mother’s brother or sister. Furthermore, with the Court’s permission, any other individual related to her by blood, marriage, or adoption can also seek redress by filing a complaint on behalf of the aggrieved wife.

PROOFS TO FILE COMPLAINT

The aggrieved wife appealed a High Court ruling that struck down the charge sheet under Sections 406 and 494 of the Indian Penal Code in the matter of Neelaveni vs. State Rep. By Insp. of Police & Ors[1]. In accordance with the ruling, “Report and the materials collected during the course of 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,” were not appropriate topics for discussion at this time.

Even if no evidence is needed to file a complaint, gathering the aforementioned evidence is usually helpful to support your case in court.

PROVISIONS UNDER DIFFERENT RELIGIONS

Even though the Indian Penal Code forbids and punishes bigamy, personal laws in India still need to do the same. To comprehend this idea, we can look at the following Personal Laws of India:

HINDU MARRIAGE ACT

The Hindu Marriage Act delineates the specific religions and individuals it encompasses in Section 1 under Subsections (a), (b), and (c). As per Section 17 of the Hindu Marriage Act, if an individual, classified as Hindu under the criteria outlined in Section 1, enters into a subsequent marriage while their prior spouse is still living, such action would render them liable to the legal ramifications specified within the Indian Penal Code. Therefore, according to the provisions of the Hindu Marriage Act, any person falling within the definition of Hindu as per Section 1, who undertakes a subsequent marriage while their first spouse is alive, would be subject to the legal consequences prescribed under the Indian Penal Code.

PARSI MARRIAGE AND DIVORCE ACT

Section 5 of this act declares Bigamy null and void or dissolved and imposes a penalty under Section 494 and 495 of Indian Penal Code.

CHRISTIAN MARRIAGE ACT

The Christian Marriage Act does not expressly mention provisions pertaining to bigamy. However, the Act stipulates that the form of registered marriage it governs is exclusively available to unmarried individuals (bachelors, spinsters, and widows). Any false oath or declaration made in the context of this Act constitutes an offence punishable under Section 193 of the Indian Penal Code. Thus, if an individual enters into a marriage while falsely claiming single status, this action would be considered illegal under this Act.

Additionally, Section 60(2) of the Marriage Certificate prescribed by this Act explicitly states that neither of the individuals intending to marry should have a living spouse. This provision establishes the condition that individuals seeking marriage under the Christian Marriage Act must not have an existing spouse still alive, thereby indirectly prohibiting bigamy within the scope of this Act.

SPECIAL MARRIAGE ACT, 1954

Under Section 44 of the Special Marriage Act of 1954, the act of bigamy is addressed and penalised in accordance with Sections 494 and 495 of the Indian Penal Code. Similarly, the Foreign Marriage Act of 1969, through its provisions in Section 19, not only criminalises bigamy but also imposes fines as stipulated under Sections 494 and 495 of the Indian Penal Code for individuals found guilty of such an offence.

MUSLIM MARRIAGE LAW

The legal landscape regarding marriage and bigamy in various religious and personal laws in India lacks explicit codification and comprehensive provisions. Under Islamic principles, a Muslim man is permitted to contract up to four marriages on the condition of equitable treatment and fair treatment of each wife as stipulated in the Quran. This allowance exists within the confines of Islamic law. However, contrary to this allowance, the Hindu Marriage Act, Parsi Marriage and Divorce Act, Christian Marriage Act, Special Marriage Act, and Foreign Marriage Act impose legal restrictions on individuals marrying more than once. Violation of these stipulated marriage laws may lead to penalties under the Indian Penal Code for those engaging in multiple marriages under these circumstances. It’s important to note that despite the legal constraints in several personal laws, bigamy per se is not explicitly prohibited under certain interpretations, especially in the case of a Muslim man remarrying within the boundaries set by Islamic law. Consequently, while multiple marriages may be permissible under Islamic principles, they could conflict with other statutory laws governing marriage and consequently lead to legal consequences for individuals involved in such unions outside the purview of Islamic law.

LEGAL STATUS OF SECOND MARRIAGE IN INDIA

The second marriage is invalid legally if the original marriage is still going strong. Bigamy is illegal in India under Section 494 of the Indian Penal Code, unless a second marriage is eligible for the exception described in this section.

JUDICIAL PRONOUNCEMENTS

PRIYA BALA GHOSH V. SURESH CHANDRA GHOSH ([1965] 2 S.C.R. 837)

The plaintiff in this case filed a bigamy action against her spouse for getting married to someone else while she was still married. Regarding the second marriage, it was discovered that Hindu law did not require any marriage rites to be conducted in order for a marriage to be deemed legally solemnised. It was therefore held that the plaintiff has to prove that the second marriage is a valid marriage, performed according to the rites and rituals of the personal law.

NAURANG SINGH V. SAPLA DEVI (AIR 1968 All. 1958)

The petitioner had denied his first wife’s support claims, using the respondent’s lack of formal marriage as justification. Along with having a kid from his first wife, the petitioner also had a second wife, which he married while the previous marriage was still going strong.  It was held that he must provide maintenance to his first wife and  child.

LINGARI OBULAMMA V. VENKATA REDDY( AIR 1979 SC 848)

In this case involving allegations of bigamy, the burden of proof rests upon the first wife to establish two critical elements. Firstly, she must substantiate her status as the legally wedded wife of the accused individual. Secondly, she must provide evidence supporting the validity of the accused’s second marriage, demonstrating that it was lawfully conducted through the required ceremonies or rituals.

It is imperative for the first wife, acting as the plaintiff, to adequately demonstrate both aspects of the case. If there exists a failure to sufficiently prove the occurrence of the second marriage through appropriate evidence or documentation, the charge of bigamy against the accused would consequently not be substantiated and would likely not stand. In summary, the successful prosecution of a bigamy charge necessitates the proof of both the plaintiff’s lawful marriage to the accused and the validity of the alleged second 

CONCLUSION

In legal systems where bigamy is permitted by specific laws or cultural practices, distinctions arise among various religious or personal laws regarding its acceptance. For instance, while certain personal laws within Islam prohibit bigamy, the laws within Hinduism, Christianity, and Parsis do not necessarily impose such restrictions. However, these legal frameworks often lack comprehensive provisions concerning the rights and obligations of cohabiting individuals in cases where a married man maintains a simultaneous domestic relationship. This legal gap creates opportunities for exploitation, enabling married individuals to cohabit with others without legal ramifications, leaving the aggrieved spouse without substantial evidence or legal recourse against the erring partner.

This discrepancy highlights a significant issue within these legal systems where the regulations governing bigamy fail to extend adequately to address the rights and responsibilities of individuals cohabiting with married persons. Consequently, it presents challenges for aggrieved parties, particularly the wives in such scenarios, who lack the necessary legal grounds or evidentiary support to address and remedy the situation effectively. Despite all of this, bigamy has significantly declined in recent years, and the future appears promising.

REFERENCES

1. https://www.scconline.com/blog/post/2016/10/19/law-for-laymen-s-494-ipc-bigamy/

2. http://www.legalservicesindia.com/articles/rfs.htm

3. https://taxguru.in/corporate-law/bigamy-punishable-offence-india.html