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VICE OF BIGAMY AND INDIAN PENAL CODE : RAMIFICATIONS
OF AN ARCHAIC LAW*
I Bigamy in Indian law
IN TH E Ind ian legal tradition the question of number of spouses a man or
woman can have was, initially, in the exclusive domain of religion. Rules
in this regard were found in the
religio-legal
literature of various communi
ties.
Hindu, Buddhist and Jain
shastras
of varying periods in the Indian
legal history, have been replete with dictates, postulates and tenets relating
to marriage and its discipline—including the question of permissible number
of spouses. Islamic law, introduced in this country over a thousand years
ago, also incorporated detailed injunctions and guidelines relating to m ono
gamy and polygamy. Ch ristians, Jews and Par sis had their own religious
laws on th e permissibility of plurality of spouses. The latest religion added
to the galaxy of Indian faiths, viz., Sikhism, too treated the issue spiritually,
taking as its basis the indigenous religious tradition and local usage in this
regard. Un til 1860 the issue of monogamy
versus
polygamy was thus
accepted and acknowledged as a subject to be tackled exclusively by reli
gion—different
religion based personal laws dealing with it differently.
In 1860 the newly enacted Indian Penal Code (IPC) introduced some
general provisions relating to polygamy. It contained two consecutive
sections—494
and
495—dealing
with polygamy. Section
494,
titled M arry
ing again during life time of husband or wife, provided punishment for a
second marriage during the subsistance of an earlier one (except when the
earlier m arriage had been nullified or the first spouse was missing for a long
period). Section 495 provided punishment for cases where the same 'offence'
had been com mitted concealing the fact of former marriage from the person
with whom subsequent marriage was contracted . During 130 years that
followed the enactment of the Penal Code these provisions have remained
substantially unamended but have, at the same time, been significantly
affected in their meaning and scope by social legislation adopted from time
to tim e. In this paper we shall have a critical look at these provisions of
the code in their historical perspective and also make an appraisal of their
interpretation by the courts.
II History of IPC provisions
As is
well
known, IPC had been based
by
its chief architect
T.B.
Macaulay
on the then English criminal law; and it had altogether replaced H indu and
Drawn
on author's Ph.D . thesis, The Institution of Polygamy in Modern India
and the Contemporary Islamic World : A Comparative Socio-Legal Study (University
of Delhi) (1990).
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1990] VICE OF BIGAMY AND INDIAN PENAL CODE 387
Islamic criminal laws which till then prevailed in different parts of British
India. Neither the traditional Hindu law nor Islamic law treated polygamy
as on offence. The relevant
IPC
provisions found in sections
494
and 495
were clearly an innovation introduced into Indian law by the British rulers
and these were expectedly based on the British law.
In England, long before the enactment of
IPC,
bigamy had been treated
as an offence. Though even earlier local ecclesiastical courts had juri s
diction to penalise bigamists, specific penal legislation on polygamy was
first promulgated in 1603. It was enacted in the aftermath of the decision
in
Rye
v. Fuliambe
1
bringing forth the extent of bigamous marriages in the
country. The statute declared bigamy to be an offence except when the first
spouse was missing or absenting himself or herself for seven years, or in case
the earlier marriage had been dissolved or declared void by the ecclesiastical
court. Two and a qua rter centuries later the Offences against Persons A ct
1828 re-enacted the law on bigamy and sought to enforce it more stringently
by making no exceptions for situations where an earlier
marriage was
sub
sisting in any form.
2
This was where the English law on polygamy lay
when Macaulay started drafting IPC
Soon after the code was enacted, but before it was enforced, England
enacted its new Offences against Persons Act
1861.
The law on polygamy
under this Act was contained in section 57 which remains unaltered until
now. At present in British law bigamy is committed when a person, being
married, goes through a legally recognised ceremony of marriage with
another while the first spouse is still living. It is a defence to a charge of
bigamy that the first marriage has been dissolved or declared void by a
competent court. There is a further defence : if the accused can show that
the first spouse has been continuously absent for seven years and has not
been h eard of by him or her during th at time, he or she will be acquitted.
It was the aforestated English law of 1828 which must have shaped the
decision of the architect of IPC to incorpora te anti-bigamy provisions into
it.
Ill
Scope of sections
494
and
495
: past and present
Section 494 of IPC declares the following to be an offence:
(1) remarriage of a woman having a husband, and
(2) remarriage of a man having a wife.
In either case remarriage will be an offence if it is void by reason of its
taking place during the life of such husband or wife . The following
salient features of this section are notable:
1. (1602) M oo. K.B. 683.
2.
S.W. Bartholomew, The Origin and Development of the Law of Bigam y, 74
Law
Q.
Rev. 259 (1958).
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388 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32
:
3
(1)
It prohibits both polyandry and polygyny and treats them on pa r.
(2) The prohibition is of a penal natu re and does not talk of the status
of a bigamous marriage at the civil law.
(3) The pena l provision applies only if the civil law applicable prohibits
the second additional
maniage
to the extent of treating it as void .
(4) The offence of bigamy can be established only when the first spouse
is living and marriage with him or her is legally subsisting.
(5) The provision will be attracted only if the second marriage is a
marriage in th e eyes of law.
(6) The section will no t apply to a case where the first marriage of a
person has been declared void by a court.
(7) Th e provision also will no t apply to a case where the first spouse
has been missing for seven years or more in the circumstances in
which the law of evidence and most of the p ersonal laws would
raise
presumption
of death (in such a case it being necessary that
the second spouse must have been informed of the facts before
remarriage takes place).
The provision of section 495 may be described as a special rule under the
general law laid down in section 494. All essential elements and ingredients
of the offence of bigamy under section 494 are fully applicable also to cases
under section 49 5; here there is an additional ingredient,
viz.,
concealment
of the existence of an ea rlier marriage from the person with whom the subse
quent marriage is contracted. In other words:
(1) If
a
married person m arries again telling his or her new spouse that
this is a second additional m arriage , section 494 will apply.
(2) W here a married person m arries again keeping his or her new spouse
in the dark about his or her earlier marital status, section 495 will
apply.
Bigamy, whethe r in the form of polygyny or polyandry, would attract
application of sections 494 and 495 only if the resulting marriage is void
by reason of its taking place during the life of such (first) husband or w ife.
Th is clause, in effect, subjects en tire provisions of these sections to the family
law applicable to the person concerned. In other w ords bigamy will be
penal only if the family law governing him or her tre at it as void. Or,
conversely, if the concerned familyl
w
trea ts bigamy as void it will also
be
an
offence un der
IPC—where
bigamy
is
permissible by the family
law
applicable,
it will not be an offence under the code.
In 1860 when IPC was enac ted th ere was no codified or statuto ry family
law in India; all the religious communities of India were governed by un
codified trad ition al or conventional laws. Am ong the various uncodified
laws, the one applicable to C hristians in British India trea ted both polygyny
and po lyandry as void, and so Indian Christians came very much within the
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1990] VICE OF BIGAMY AND INDIAN PENAL CODE 389
purview of sections 494 and 495. Polygyny among H indus , Buddh ists,
Sikhs and Jains was to be wholly outside its ambit as they were governed
either by their religion based personal laws or by customary law, both of
which did not trea t polygyny as void. How ever, polyandry am ong these
communities could att rac t application of IPC , except where customary law
permitted it. Jews and Parsis were then following their custom and usage
which did not specifically prohib it polygyny. As regards M uslims, to th e
extent Islamic law perm itted polygyny they also remained outside the scope
of sections 494 and 495. The fifth marriage of a Muslim man and second
marriage of a Muslim woman could apparently attract application of the
code if it could be shown tha t such a marriage was void under the school
of Muslim law applicable to a particular case.
The process of reforming laws applicable to marriages so as to invalidate
bigamy started in British India within the decade in which IPC had come
into force. In
1865
Parsis earned the distinction of being the first comm unity
to be given a statute of matrimonial law prohibiting bigamy.
3
Then, the
two statutes of family law enacted in 1869 and 1872 for Christians declared
bigamy to be void.
4
So did the first law on civil marriages enacted in 1872
which was made available to those who could give up their religion and
personal law.
5
During the same year
Brahmosamajis
were willingly sub
jected to an anti-bigamy statute.
6
During the first half of the twentieth century polyandry was banned by
law for Hindu and Jain matrilineal tribes in South
India
7
and for Buddhists
in Ladakh
8
—polygyny was also restricted or abolished under statutes made
applicable to the former. Restriction of polygamy by law was attem pted
at about the same time also in the then princely State of Baroda.
9
Later,
provincial legislation in Bombay, Madras,
Sauiashtra
and M adhya Pradesh
wholly prohibited bigamy for Hindus, Buddhists, Sikhs and Jains.
10
After Independence the Hindu Marriage Act 1955 prohibited bigamy for all
3.
Parsi
Marriage
and Divorce Act 1865, ss. 4, 5, 9 & 30, replaced by Parsi Marri
age and Divorce Act 1936, ss. 4, 5, 11 & 32 d).
4. Indian Divorce Act 1869, ss.
10,18
& 19(4); Christian Marriage Act 1872, s. 60(2).
5. Special Marriage Act 1872, ss. 2 1), 15, 16
&
17, replaced by Special
Marriage
Act 1954, ss. 4 a), 15, 24 i), 43 & 44.
6. Brahmo Marriage Act 1872, ss. 2 (i) & 15.
7. Malabar Marriage Act 1896, Travancore Nayar Act 1925, Travancore Ezhava
Act 1925, Travancore Nanjinad Vellala Act 1929, Madras Nambudiri Act 1932, Madras
Marumakkathayam Act 1932, Cochin Thiyya Act 1932, Travancore Kshatriya Act 1933,
^Cochin Nayar Act 1938, Cochin Marumakkathayam Act 1939, Cochin Nambudiri Act
1939, Travancore
Krishnanyaka Marumakkathayee
Act 1939, Cochin
Makkathayam
Thiyya Act 1940, Madras Aliyasanthana Act 1949 and Kerala Nambudiri Act 1958.
8. Laddakh Buddhists Polyandrous Marriages Prohibition Act 1941.
9. Baroda Hindu Nibandh 1937, s. 116.
10.
Bombay Prevention of Hindu Bigamous M arriages Act 1946, Madras Hindu
(Bigamy Prevention and Divorce) Act 1949, Saurashtra Prevention of Hindu Bigamous
Marriages Act
1950,
Madhya Pradesh Prevention of Hindu Bigamy Act 1955.
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390 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32 : 3
these comm unities throughout the country ; in Jammu and Kashmir too
the new law was adopted by local legislation.
11
Outside British India, in Goa, Daman and Diu the former Portuguese
rulers had enforced various
codes
of native
usages during 1854-1912, trea t
ing differently
different communities
and sects in the m atter of polygamy;
13
while in Pondicherry the French Civil Code 1804, absolutely prohibiting
polygamy, had been adopted by a section of the local people.
18
The present position of the various religious comm unities vis a vis
sections 494 and 495 of the Code is as follows:
(1) Hindus, Buddhists, Sikhs and Jains: All
cases
of polygamy and poly
andry among persons governed by the Hindu Marriage Act 1955
attract application of IPC provisions.
(2)
Scheduled tribes among Hindus, Buddh ists, Sikhs a nd Jains:
Being
exempt from the Hindu Marriage Act among them neither
polygyny nor polyandry, if sanctioned by custom, attracts IPC law.
(3)
Christians and Parsis: AH
cases of polygyny and polyandry all over
India attract IPC provisions.
(4) Jews: Modern Jewish law prohibits also polygyny,
14
while polyandry
was never allowed by it; hence the IPC
law
applies to a ll bigamous
marriages among Jews.
(5) Muslims: Polygyny to the extent permitted by Muslim law (i.e., up
to four wives) does not attract the
IPC law, while
polyandrous
marriage of a woman does attract it.
(6) Parties to civil marriages: Irrespective of religion and community
bigamy on the part of any married man or woman whose first
marriage is a civil marriage attracts application of the IPC law.
Curiously, in regard to the various comm unities referred to above, while
the Parsi M arriage and Divorce Act 1936, Special Marriage Act 1954, Hindu
Marriage Act
1955
and Foreign M arriages A ct 1969 make a pointed refe
rence to sections 494 and 495, the Divorce Act 1869 of Indian Christians
makes no reference to these provisions of the code. To Christians these
provisions apply because while the Christian law treats bigamy as void,
IPC says that if personal law does so, its anti-bigamy provisions apply
automatically.
11. Jammu and Kashmir Hindu Marriage Act 1955.
12. Goa, Daman and Diu Codes of Native Usage 1854; Portuguese Civil Code 1867,
arts. 1073-74; Goa Code of Usages and Customs of Gentile Hindus 1880; Diu Code
of Usages and Customs of Non-Christian Inhabitants 1894; Law of Marriage 1911, arts.
4,
11
& 12; Dam an Amended Code of Usages and Customs of Non-Christian Inhabitants
1912.
13. French Civil Code 1804, art. 146.
14. Rachel
Benjamin
v.
Benjamin
Solomon Benjamin, (1926) 28 Bom. L.R. 328.
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1990] VICE OF BIGAMY AND INDIAN PENAL CODE 391
IV Judicial interpretation of sections 494 and 495
(1) First marriage:
proof
validity and subsistence in law
An offence under section 494 will be established only if—
(i)
there has been an earlier marriage of the accused;
(ii) it was a valid marriage under the law applicable; and
(iii)
the same is legally subsisting when the alleged second marriage
takes place.
Where there has been no earlier marriage at all, the existence of which
can be proved to the satisfaction of court, there will be no room for the
application of section 494. Existence of an earlier marriage can be proved
with reference to the form of its solemnisation and its validity; and both
these aspects
will be
considered under the matrimonial law applicable to the
accused.
As per section 50 of the Indian Evidence Act
1872
no offence involving
a marriage can be established unless the fact of marriage is strictly proved.
Co urts have applied this rule of evidence in the cases of bigamy under IP C ;
without a satisfactory proof of an earlier marriage, they have held tha t
section 494 of the Code cannot be invoked.
15
It is notable here that admis
sion of first marriage by the accused,
or
the statemen t
of a
witness that he
had attend ed it, does not prove formal marriage
so
as to warrant conviction
under section 494 read with section 109 (abetment).
16
A mere statement of
the accused tha t his second m arriage was bigamous is not sufficient.
17
Proof
of lawful performance of the first marriage is as essential as that relating
to second marriage, though according to
iecent
judicial opinion the degree
of proof required to prove the first marriage may not be the same as re
quired for the second marriage and the first marriage may be proved by
presumptive evidence and circumstantial evidence.
18
Regarding validity and valid peiformance of the earlier marriage it has
been held in a case that want of guard ian's consent will no t m ake an earlier
marriage
invalid—a
woman m arried
with
the consent of her father, though
in bis absence, cannot be married again.
19
W here the first marriage is
void under the law applicable to the parties the second marriage cannot be
bigamous—voidable nature of the first marriage would be immaterial.
20
15.
Shantimani Dei v. Lingaraj Moharana, 1982 Cri. LJ . 1567; Godawari v. State of
Maharashtra, 1985 Cri. L.J. 1472.
16.
Talep li Choudhary v. Sabdar Khan, (1940) 45 C.W.N. 84.
17.
Gopal
Anant
Musalgaonkar
v. State of Madhya Pradesh, 1976 Cri. LJ. 1333.
18.
Godawari supra note 15; cf . Ventipalii Neelaveni v. Ventipalli Venkateswara Rao,
(1988) 2 Andh. L.T. 770; Binapani Debi v. Ajit Banerjee, 1983 Cri. L.J. 1440.
19.
Benodini Howladar v. Emperor, A.I.R. 1927 Cal. 480; Gajja Nand v. Em peror
AJ.R. 1922 Lah. 139.
20.
Padi v. Union of India, A.LR. 1963 H.P. 16; Krishni Devi v. Tutsan Devi, A.I.R.
1972 Punj. 305.
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392 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32 s 3
Marriage performed
during
minority will he a valid marriage so as to make
a fresh maniage bigamous.
21
As regards subsistence of the
fust
marriage until the date of the second
allegedly bigamous marriage, a marriage may be dissolved only either by
the death of either party or by a proper and legally recognised process of
divorce at the instance of either pa rty or by mutual consent of both the
parties. Dissolution by divorce has raised some complications, mainly
in view of differences of scope between the statutory and uncodified laws
relating to marriage and divorce prevailing in the country and applicable to
different communities.
In Hindu law divorce is at present possible both by law and by custom.
In the former case it is now strictly by a judicial process whereas extra
judicial customary divorces are recognised by section 29(2) of the
Hindu M arriage Act. W here th e first marriage has been dissolved by a
customary divo rce, proof of custom becomes very relevant to the ques
tion whether a subsequent second marriage would amount to bigamy.
In one such case where
minoi
spouses got themselves
divoiced
without
parents' consent, the divorce was held by the court to be invalid for the
purpose of legalising the subsequent bigamous marriage.
22
In the absence
of proof of subsistence of first marriage , second marriage canno t, however,
be held invalid.
23
In a very recent case where a Lingayat Hindu woman
exercised her customary right of divorcing herself and then remarried, the
Supreme C ourt held that she
was
not guilty of polyandry.
24
To the question
whether remarriage of a Hindu prohibited by section
15
of the Hindu
Marriage Act (which prohibits remarriage of parties until divorce becomes
final) would amount to bigamy, judicial response is an emphatic no .
25
The question whether a Christian marriage can be dissolved outside the
court so as to validate a fresh marriage, the answer of the court has been in
the negative; a judicial decree under the
&tatutory
law is a must.
26
A s
regards the question whether the marriage of a Muslim woman can be dis
solved
extrajudicially
making room for a lawful second marriage, we have
conflicting judicial opinions. Some courts have upheld rules of Muslim
law allowing termina tion of an existing marita l bond at the instance of a
wife but without a judicial process;
27
some have insisted on confining
Muslim women's rights strictly to the statutory law on the subject, i.e., the
Dissolution of Muslim Marriages Act 1939.
28
We find a conflict between
21. Pinninti Venkataramana v. State of Andhra Pradesh, A.LR . 1977 A P 4 .
22. Sodha v. Mansha Ram, A.LR. 1971 H.P. 27.
23 . Mohan Ram v.
Badamo
Devi
1974
Cri. LJ. 227;
Usman
v. Budhu, A.I.R. 1942
Sind 92.
24 .
Shakuntatabaiv.
L.V.
Kulkarni, A.LR.
1989 S.C. 1359.
25 .
Kailash Singh Pariharv. Priti
Parihar
1982 Cri. L.J. 1005.
26.
Gyanasoundari
v.
Naliathambi,
A.LR. 1945 Mad. 516.
27.
Shaft Ullahv. Emperor, 1934 Cri. L J . 1053; Muhammad Baksh v. Khuda Baksh,
1950 Cri. LJ. 1169.
28 . Usman, supra note 23 ; K.C. Moyin v.
Nafessa,
1972 K.L.T. 785.
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1990] VICE OF BIGAMY AND INDIAN PENAL CODE 393
the attitude adopted by the courts in some of these cases and the clear clause
of section 494 of IPC protecting contrary rules of personal laws. W here the
matrimonial law applicable to a woman recognises an extra-judicial term i
nation of her first marriage how can her second marriage be covered by sec
tion
494
which accords protection to the (civil) law applicable to the accused
?
The latest Supreme Court ruling in the
Lingayat
w oman's case does
appeal
to be sound, whereas those applying the IPC law to women rem arrying after
lawfully dissolving their first marriage
extra-judicially
seem to be incorrect.
(2) Second marriage: proof solemnisation and validity
To attract application of section 494, the second marriage should be
void under the personal law governing the partie s by reason of its taking
place during the life time of the first spouse. Nullity of second m arriage
under the personal law applicable to the bigamist is thus one of the essential
ingredients of section 494. The alleged second marriage which may att rac t
application of section 494 has to be proved to the satisfaction of the co ur t;
and it can, clearly, be proved only with reference to a pro pe r solemnisation
of the marriage. In other words, if an alleged second marriage has no t been
properly solemnised with due rites and rituals as per the personal law or the
customary law applicable to the pa rties, it would remain ou t of the ambit of
section 494. In a large number
of cases
co ui ts, insisting on a strict proo f of
the second marriage, have called for evidence of a meticulous compliance
with the process of solemnisation under the law governing the parties.
Since among Hindus marriage is a sacrament and m ust take place through
a ceremony
shastric
or customary) as per section 7 of
the
Hindu Marriage
Act, a proper performance of marital rites and their strict proof has been
insisted upon by the Supreme Court in respect of prosecution for bigamy.
29
A good number of High Courts have followed suit in deciding that in the
absence of strict proof of marital rites having been properly performed, an
alleged second marriage cannot be recognised as marriage under section 494
of IPC—if not so proved the relationship assailed will be simply an adul
terous unio n not hit by the provisions of
the
section.
30
On the contrary, in
a recent case the Calcutta High Court has apparen tly been inclined to
recognise the existence of a second marriage even on the basis of its estab
lished reputation .
31
In our opinion this seems to be more reasonable. The
nature and divergence of marital rites among Hindus m akes the judge
29.
Bhaurao Shankar Lokhande v. State of Maharashtra, A.LR. 1965 S.C. 1564; Priya
Bala Ghosh v. Suresh Chandra Ghosh, A.LR. 1971 S.C. 1153; Gopal Lalv. State of Rajas-
than, A.I.R. 1979 S.C. 713.
30. B.Chandra Manikyamma v. Sudarsana Rao, 1988 Cri. L.J. 1849;
Shantimani
supra
note 15; maliammal v. Rayarswami 1983 Cri. LJ. 1719; Ram Singh v. R. Sushila Bai,
A.I.R. 1970 Mys. 201; Mukta Jesing v. Vallabhadas Kalidas, 1974 Cri. LJ. 121; Swapna
Mukherjee
v. Basanta Ranjan Mukherjee, A.I.R, 1955
Cal.
533.
31.
Binapani
supra note
18.
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394
JOURNAL OF THE INDIAN LAW INSTITUTE [Vol, 32 I 3
made law requiring meticulous compliance with them as a pre-condition to
prosecution for bigamy, rather unreasonable.
In Muslim law , strictly speaking, there are no marriage ceremonies.
However, in India a certain procedure of marriage has attained the force of
law and the courts have in some cases required proof of this procedure to
substantiate an allegation of polyandry.
32
Difficult questions have arisen
where persons professing Islam or
Christianity
remarry as per Hindu rites
without changing religion. In one such case the Punjab High Court regarded
this as a case of
bigamy,
while the M adras High Court has expressed a diffe
ren t opinion holding that in such a case the marriage could not be said to
have been duly performed.
33
A formal declaration that the second
marriage is void unde r the personal law applicable is not a pre-condition
for trial of the offence of bigamy.
34
Must the second marriage (which is allegedly bigamous) be otherwise
valid under the matrimonial law applicable to the
accused?
The question
has not been uniformaUy answered by cou rts. For instance, will a second
marriage which is incestuous (violating rules of prohibited degrees) as per
the matrimonial law applicable be acceptable to courts as a bigamous
marriage under section 494 of
IPC
? In some old cases it was decided that
even an invalid second m arriage would fall within the scope of this section.
36
But in recent years cou rts have seemingly insisted tha t only that second
marriage can be bigamous which is otherwise valid under the law applicable.
86
The observation of Justice Sanjeeva Row Nayudu in Morrapu Satyanarayan
v.
State of
Andhra Pradesh® reproduced below is notable:
This object of the person committing bigamy, and which is sought
to be defeated by the section
by
declaring it an offence, is no t achieved
if the second m arriage is one which is no marriage a t all in the eye of
law, oi which is otherwise void, in which case it cannot be said that
there was a valid marriage, and the meaning of the word m arries
is not satisfied.... There may be many instances where a second
marriage m ay be no marriage at all and in which case there could
be no question of bigamy, as for example, where the parties are so
closely related that a marriage between them is void according to
their personal laws, or where the person sought to be taken in second
marriage is himself or herself no t eligible to be taken in marriage; and
there
may be
many other instances,
and
it is unnecessary to notice all
32.
Badal Aurat
v.
Queen-Empress,
(1891) 19 Cal. 79.
33. Payariv.
Faqir Chand Alakha, A.LR. 1961
Punj.
167; Amaliammal supra note 30.
34. Channamma
v.
Dhalappa,
A.L R. 1958 M ys. 147.
35.
Taher Khan v. Emperor, A.I.R . 1918 Cal. 136; Sant Ram v. Emperor, A.LR. 1929
Lah .
713;
Emperor
v.
Soni,
A.LR. 1936 Nag. 13;
Payari, supra
note 33.
36.
C.G. Rangabashyam
v .
Ranjani Murugan,
1981 Cri. L J . 577;
Kalanjam
Ammal
v. Shanbayam, 1989 Cri. L J . 405.
37. Morrapu Satyanarayan
v.
State of
Andhra
Pradesh,
1962 (2) Cri. L J . 644.
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of them in this connection. I am inclined to agree...that the second
marriage should be something which could be regarded as a m arriage
in the sense in which marriages are understood; and if it is no marriage
at a ll, and if it cannot have any validity in law, apart from the fact tha t
by reason of its being a bigamous marriage, it would be declared void,
it cannot be said that the offence of bigamy had been committed.
38
This thinking has led the judiciary in this and some other cases even to
the seemingly unreasonable opinion that if a married man m arries a married
woman who is no t by law eligible for m arriage , this would be th e case of a
legally non-existent relationship that would not attract the application of
section 494.
39
This judicial attitud e has the effect of curtailing the scope of
this section and restricting it to cases where at least one party to an allegedly
bigamous marriage has been hithe rto unmairied or where the first marriage
of the party other than the accused is no t subsisting on the date of the
second marriage. In our opinion such an interpre tation of the law is no t
warranted either by the language or the spirit of the IPC law on polygamy.
(3) Section 494: some other aspects
Like any other offence mens rea would be an essential ingredient for
constituting the offence of bigamy under IPC . This has been specifically
clarified by the courts in a number of cases.
40
So where a married person
marries again in good faith and without any criminal inten t, the provision
of section 494 may not apply.
Where, after a second bigamous m arriage is contrac ted, the first marriage
is dissolved either by death of the first spouse or by any form of a lawful
divorce, will section 494 become inapplicable? Apparently it will not be so.
As regards the effects of a subsequent divorce, there are a num ber of judicial
decisions that this would not exonerate a bigamist.
41
Like any other offence under IPC, in respec t of the offence of
bigamy too section 109 of the code would apply so as to render abetment of
bigamy also an offence. Several courts have decided this way, clarifying
that merely attending a bigamous marriage or being involved in it otherwise
than in a position enabling one to prevent the offence from taking place may
not amount to the abetment of the offence.
42
(4) Section 495
Section 495 of IPC, relating to bigamy by fraud, has been applied by
38. Id .
at 648.
39. C.G. Rangabashyam, supra note 36.
40.
Sankaran Sukumaran v. Krishnan Saraswathy, 1984 Cri. LJ . 317; Ahmed Koya
v. Amino Beebi, 1972 K.L.T. 1069.
41. A. Narasimha Ayyangar v. K. Ramayya Chettiar, A.LR. 1932 M ad. 560.
42.
Karuppiah Servai v. Nagavalli Ammal 1982 Cri. LJ. 1362; C.S. Varadachari
v.
C& Shanti, 1987
Cri.
LJ, 1048*
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396
JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32
: 3
courts in some reported cases.
Jh
an old case a woman who, without a
proper enquiry, presumed that her first husband was dead (while he later
turned up) and thereupon married again, wholly concealing
fiom
her
second husband the fact that she was once married, was subjected to the
penalty under this section.
43
Active helpers of a person whose second m arriage is covered by the law
of section 495 may be liable to punishment as abettors under this section
read with section 109 of
IPC.
44
In a recent case it has been explained that
the basic ingredient of
an
offence under section 495
is
concealment of the
fact of the earlier
marriage—the
remaining law being the same as under the
preceding section.
45
V Two exceptions under section 494
Under the heading Excep tion section 494 mentions two circumst
ances in which a second marriage
will
no t attra ct its application. These
are in fact two different exceptions, and their nature and scope is wholly
different.
The first exceptional circumstance excluding the application of section
494 is the fact of the earlier marriage having been declared void by a court
of
competent
jurisdiction. Two aspects of this exception are notable.
First,
since subsistence of an existing marriage until the second marriage is clearly
specified as a condition under the section for its applica tion, specification of
this circumstance seems rath er superfluous. Where a marriage has already
been declared void, it is, obviously, not in existence at the time of the second
marriage and so the case will be automatically out of
the
scope of section 494.
Second
does the exception mean tha t the fact that a m arriage is void will in
itself not be covered by its provision or will a decree of nullity be necessary
9
The la tter interpre tation is negatived by m any judicial rulings which have
decreed tha t if the first m arriage was void, the second will not count as
bigamy.
46
The condition of obtain ing a decree of nullity is not imposed in
respect of void m arriages by modern Hindu law, Muslim law and the
laws of
civil
marriages. It
is,
therefore, inconceivable
that
in respect of these
com munities, in the absence of a decree of nullity, even a void marriage
would be a bar to rem arriage ; for this will amount to an implied recogni
tion of void marriages.
The second statutory exception keeps a fresh marriage outside the mis.
chief of section 494 where the first spouse has been continuously absent
for seven years . This exception will apply only if the other spouse informs the
new spouse—before the second marriage—that it is a case of the first spouse
43. Queen
v.
Enai Beebee,
(1865) 4
W.R.
(Cri.) 25.
44. Karuppiah, supra
note 42.
45. Jagdish Chandra Verma v. Neetam
Kumari,
1979 Cri. LJ. (N.O.C.) 202.
46. Supra
note 20.
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1990] VICE OF BIGAMY AND INDIAN PENAL CODE 397
having been missing for not less than seven years preceding the date of re
marriage. It is notable tha t the period of seven years, referred to in the
exception to section 494, is also treated as a factor raising presumption of
death under section 108 of the Evidence
Act
and as a ground for divorce
under the Special Marriage Act
47
and the Hindu Marriage Act.
48
There is,
thus,
no conflict in respect of the period of absence during these latter legal
provisions and IPC . However, while the
Maliki
school of Islamic law
allows remarriage of a missing person's spouse after a period of four years,
in an old Punjab case it was decided that this provision of Islamic law stood
overruled by
IPC.
49
Subsequently the said provision of
Maliki
law was
incorporated into the Dissolution of Muslim Marriages Act which now
is the general law applicable to all Muslims.
50
The present position seems
to be that where a decree of divorce has been obtained by a missing person's
wife under this Act, she can immediately remarry.
VI Punishment,
procedure
and
jurisdiction
The punishment provided under sections 494 and 495 of IPC is imprison
ment of either description up to seven years and fine, and up to 10 years
and fine, respectively. Since the quantum of fine as well as the duration of
punishment within the maximum limit has been left to the discretion of
cou rts, in several cases judicial decisions have in effect come forward with
self-assumed guidelines for fixing up the sam e. Fo r instance , where a
woman, deserted by her husband for long, married again and the prose
cution for bigamy arose out of vindictive motive, a light sentence was
awarded.
51
In another case where the accused was below 22 years of age
and undertook to keep his first wife with him the court preferred to release
him on probation.
52
In a third case, where the accused had undergone
26 days of punishment and then released on bail while he had remarried
after having been deserted by his first wife, the Punjab High Co urt awarded
no more punishment though it increased the fine.
53
Offences under sections 494 and 495 are non-cognisable, bailable and
compoundable, and prosecution
for them
can be initiated on the basis of a
complaint only. "Some person aggrieved by the offence has to file a
complaint. "Some other perso n may be permitted by the court to make a
complaint only where the aggrieved person is a minor under 18, an idiot or
lunatic, sick or infirm, or a woman inhibited by local custom and manners
from public appearance. If the aggrieved person is a wife, her pa ren ts,
47.
s. 27
i) h).
48.
S. 13(l)(v/i).
49.
1878
Punj.
Re. No. 27 (Cri.) 67.
50. S. 2(0.
51. Ritha v. Emperor, A.I.R. 1926 N ag. 127.
52.
Sindhiya Devi
v.
State of Uttar Pradesh,
1974 Cri. L.J. 1403.
53.
Supra note 45.
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398 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32 3
children, brother, sister, uncle or aunt, can make a complaint on her
behalf without prior permission of the court—any other relative can do so
only with the court's prior permission.
54
Section 182(2) of the Code of Criminal Procedure 1973 provides three
venues for enquiry and trial of the offences under sections 494 and 495,
viz.,
the cou rt w ithin whose local jurisdiction (1) the offence was comm itted, (2)
the offender last resided with his or her spouse by the first marriage, or (3)
the wife by the first marriage has taken up permanent residence after the
commission of the offence. The jurisdiction of the last mentioned court
has been upheld in a number of recent cases.
55
VII Conclusion
In the context of the social menace of polygamy the present Indian law
is awfully defective. Many legal changes are required in this law. If
bigamy means two women cohabiting with the same man as his wives, it
is surely an archaic practice and must be stopped by law. But if bigamy
means rem arriage of a married man after separation from his first wife with
whom his marriage has in fact irretrievably broken down, mere passing of
laws cannot stop it. To pu t an end to such a practice what is required is an
overall reform and a thorough overhauling of
the
entire system of our matri
monial laws—both substantive and procedural. There is no doubt that in
our country now bigamy exists not in its first but in the second meaning,
given abov e. The num ber of cases in which a man may actually be
cohabiting with two or more wives is indeed m icroscopic. Married men, of
course, marry again—but they do so when their first marriage, although
still existing in nam e, has in fact broken down . And this malady cannot
be cured either by declaring bigamy to be an offence or by simply providing
under the family laws that a bigamous marriage would be void.
An effective enforcement of the
socio-legal
ideal of monogamy in India
requires, as the first step, a prope r reform of sections 494 and 495 of IPC
as also of the laws of divorce applicable to various com munities in India.
The latte r a re outside the scope of the present paper and require a separate
study in dep th. He re we suggest the following reforms for these sections:
First,
these sections should be amended to provide that a bigamous
marriage will attract their provisions if it has taken place in violation of the
ma trimonial law applicable although it m ay no t be void under th at law and
even if not properly solemnised or contracted as required by that law.
Second
the exceptions in section 494 should b e deleted as they are super
fluous and are already covered by the marriage laws applicable in various
cases.
54 . Code of Criminal Pro cedure 1973, s. 198.
55.
Ravinder Kaur
v.
Gurmit Singh,
1985 Cri. L.J. 601;
Ningappa Shivappa Gown
v .
Kalavathi,
1986 Cri. L J . 1719;
Sukhaswarooplal
v.
State of Madhya Pradesh,
1987 Cn.
LJ . 921 .
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Third
on the lines of section 12 of the Child Marriage Restraint Act
1929, an appropriate provision should be made empowering courts to issue
an injunction prohibiting an intended bigamous marriage if it violates
requirements of the law applicable to the case.
Fourth,
offences under these sections may be made cognisable, non-
bailable and
non-compoundable.
Fifth, the Family Courts Act 1984 should immediately be implemented
throughout the country and family courts having civil and criminal divisions
should be set up unde r its provisions. Jurisdiction to decide all proceedings
involving bigamy, both civil and criminal, should be vested in these courts.
Sixth,
convenient and quick procedure for disposal of all matrimonial
cases—civil
and criminal, ignoring the niceties and rigidities of the rules
of civil and criminal procedure followed in other c our ts, and focusing on
reconciliatory
methods—should
be detailed in the Family Courts Act.
Kir an B . Jain*
*LL.
M., Ph. D. (Delhi), Assistant Research Professor, Indian Law Institute.
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