BIGAMY: LEGAL FRAMEWORK AND JUDICIAL TRENDS

CRIMINAL LAW- II

6TH Semester

Submitted by: Submitted to:

Gulshan Dr. Sharanjit Kaur

Roll No.: 18071 (Associate. Prof. of Law)

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PUNJAB

16TH March , 2021

 TABLE OF CONTENTS

1. INTRODUCTION
2. HISTORY
3. LEGAL STATUS OF SECOND MARRIAGE
➢ IS THERE ANY RIGHTS FOR SECIND WIFE?
➢ PROPERTY RIGHTS OF SECOND WIFE
➢ PROPERTY RIGHTS OF CHILDREN BORN OUT OF SUCH VOID MARRIAGE

4. PROVISIONS DIFFER FOR DIFFERENT RELIGIONS

➢ HINDU MARRIAGE ACT
➢ PARSI MARRIAGE AND DIVORCE ACT
➢ CHRISTIAN MARRIAGE ACT
➢ SPECIAL MARRIAG E ACT
➢ MUSLIM MARRIAGE ACT

5. COURT RULINGS ON BIGAMY

➢ CAN A PERSON CONVERT HIS RELIGION FOR CONTRACTING A SECOND
MARRIAGE?
➢ THE REQUIRMENT OF VALID PROOF OF SUCH BIGAMOUS MARRIAGE
➢ WHAT SHALL BE THE LEGAL STATUS OF SUCH BIGAMOUS MARRIAGE?

6. HOW DOES BIGAMY AFFECT THE BIGAMIST’S SPOUSE?

7. CONCLUSION

8. REFERENCES
INTRODUCTION

WHAT IS BIGAMY?

The legal definition of bigamy is a situation in which one person, legally married, enters into a
second marriage contract with another without dissolving the first. A person must end a
marriage before marrying again, either by death, annulment, or divorce. If a second marriage
occurs before the first ends, the state can charge the person with bigamy.

Bigamy differs from polygamy in that bigamy involves two separate marriages, while
polygamy usually comprises one marriage with multiple people. Often, bigamy involves one
party deceiving the other about the state of their current marriage, while polygamy’s involved
parties are usually all aware of the circumstances. Many cases of polygamy in the news are
actually serial bigamists entering into multiple marriage contracts

The Indian Penal Code[1] declares for a concept commonly known in English law as Bigamy
as a punishable offense. The term bigamy is technically not one that is recognized in any of the
laws in India. But, it has been defined generally, as the act of marrying one person while legally
married to another and as a second marriage by a person during the lifetime of the partner and
during the subsistence of the first marriage.

Essentially, bigamy is not only a ground for divorce. It is also an offense and naturally makes
the marriage void, hence making it unnecessary for parties to file for a divorce. Though in the
face of it, it seems like Bigamy is an offense that is prohibited throughout the country for each
and everybody, that does not seem to be the case.

The personal laws of the people in the country carry more significance than the Penal Code
does. Therefore, though the Penal law strictly prohibits Bigamy, if the personal law allows it,
it will not be punishable. For example, though Bigamy is an offense for Hindus (as collectively
defined in the Hindu Marriage Act, Christians and Parsis. But since the Islamic personal laws
allow bigamy, it is not an offense for the Muslims. However, Polyandry is strictly prohibited.

The fundamental reasons behind Bigamy being a punishable offense is the societal stigma
attached to not being the only wife, or much worse, the second wife, the absence of legal status
to the relationship, which is the primary reason and perk behind two people getting married
and the horrendous suffering of the wife due to the adulterous relationship of her husband.
Further, the second wife and her children, both male and female, will get absolutely no
recognition, especially with regard to succession and propert
HISTORY

The history of Bigamy-based laws and the existence of Bigamy dates back to the Vedic times.
Monogamy has always been the rule right from then, but it has always subsisted with the
exception of polygamy, which is basically where the husband in the marriage has more than
two wives living.

The Manusmriti, which is one of the major sources of the Hindu Marriage Act, 1955, has texts
that clearly imply that when a wife was barren, diseased, or vicious that she could be
superseded, a second marriage was valid. But, the first, matrimonially wedded wife would
alone be considered as a wife, and not the latter woman. In a more perspicuous sense, the first
wife had primacy over the other and her first-born son, over the husband’s other sons. The
other wives were merely considered as a superior class of concubines. But over time, the courts
during the British rule adjudicated that a Hindu male could marry another woman during the
subsistence of his first marriage, without the consent of his wife or any justification,
whatsoever.

But later on, several provisions came about, that made Bigamy an offense. These were mostly
personal laws. Bombay Prevention of Hindu Bigamous Marriage Act and the Madras (Bombay
Prevention and Divorce) Act, were passed in order to ensure that men who committed the act
of bigamy, would be punished as under this section, in Bombay and Madras, respectively. Parsi
Marriage and Divorce Act, which is specifically meant for the Parsis in India, also strictly
prohibited polygamy and made it punishable.

The Special Marriage Act and its amended provisions of 1923, also brought about laws that
prohibited bigamy, just as far as the marriage was solemnized as per the provisions and
conditions of the Act. The Hindu Marriage Act, 1955, taking its inspiration and thought from
the Manusmriti, makes monogamy the rule for all Hindus, Buddhists, Jains, and Sikhs. If a
Hindu man marries another woman when his first wife exists, it shall attract Section 494, as
per the Act, in order to determine the punishment.

But unfortunately, Muslim laws though they do not recognize Polyandry, do allow Polygamy
as per their personal laws. The Shariat Act refers to the Sharia law as the law of the land for
the Muslims. Muslims are governed by whatever is specified in the Quran, which states that a
man can marry up to four women at the same time, only if he can take care of them. Therefore,
currently, all religions and their personal laws, except Islam, prohibit bigamy.
LEGAL STATUS OF SECOND MARRIAGE

Legally, second marriage is considered void if first marriage still persists. Section 494 of Indian
Penal Code itself punishes for Bigamy unless second marriage comes under the exception
provided in this section.

9. IS THERE ANY RIGHTS FOR SECIND WIFE?

The second wife does not have any legal right. In fact, the second marriage is considered void.
Women whose marriage has been declared void suffers a lot. There are no specific provisions
for the second spouse, but there are a few ways in which she can sue her husband-

Cheating– Section 495 of Indian Penal Code states that whoever commits the offence of
marrying someone without disclosing the fact of his/her second marriage is punishable with
imprisonment which may extend to ten years, and shall also be liable to fine.

10. PROPERTY RIGHTS OF SECOND WIFE

As provided above, the second wife does not possess any rights that normally the first
wife possess. The second wife doesn’t have the right to her spouse’s property unless
such marriage is valid under exceptions provided in Section 494.

11. PROPERTY RIGHTS OF CHILDREN BORN OUT OF SUCH VOID MARRIAGE

It is difficult for any women whose marriage has been declared void to maintain
children out of such marriage. There are no rights for Second wife as well as it is very
difficult to get maintenance from such void marriage. Therefore, Section 16 of the
Hindu marriage act states that any child, who would have been legitimate if the
marriage would have been valid, shall be legitimate. Thus, any child born out of void
marriage is legitimate and thus shares equal rights in the property of their father/mother.
This provision is also applicable to children born out of a live-in relationship.
Children born out of void marriage get equal rights as the children of the first wife in
self-acquired and ancestral property of their father. But they cannot inherit ancestral
joint family properties. Children of void marriage will get share only in their
father’s/mother’s property.
PROVISIONS DIFFER FOR DIFFERENT RELIGIONS

Even though Indian Penal Code prohibits and punishes for Bigamy, it is necessary that Personal
laws in India should prohibit bigamy. We can go through the following Personal laws in India
to understand this concept-

▪ Hindu Marriage Act– Section 1 of Subsection (a), (b) and (c) states which specific
religion and persons come under this Act. Thus, under Section 17 of Hindu Marriage
Act, any person considered Hindu according to Section 1 marries again during the life
of first husband/wife, shall be punished under Indian Penal Code provision.

▪ 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– Even though the Christian Marriage Act doesn’t have
specific provision for Bigamy, Form of Register Marriage is only for Bachelor/Spinster
and Widow/Widower. For 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 will be considered illegal under this act.

▪ Special Marriage Act 1954– Section 44 of this act states punishment for Bigamy and
imposes a penalty under Section 494 and 495 of Indian Penal Code.
Foreign Marriage Act 1969- Section 19 of this act states punishment for Bigamy and
imposes a penalty under Section 494 and 495 of Indian Penal Code.

▪ Muslim Marriage Law– There are no codification or specific provisions for this law.
It is written in 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.
If a person marries more than once under Hindu Marriage Act, Parsi Marriage and
Divorce Act, Christian Marriage Act, Special Marriage Act and Foreign Marriage Act,
he/she will be punished according to Indian Penal Code.
And according to Muslim Marriage law, any Muslim Male committing Bigamy is not
invalid and hence not an offence.
COURT RULINGS ON BIGAMY:

A. CAN A PERSON CONVERT HIS RELIGION FOR CONTRACTING A SECOND

MARRIAGE?

• SARLA MUDGAL V. UNION OF INDIA (1995 AIR 1531 SC)

The Supreme Court of India in its landmark judgment 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.”
Such person shall be punishable with the imprisonment and fine and the punishment
provided under section 494 shall be non- compoundable with the punishment given in
section 495. The second wife shall not be entitled to any kind of right or share in the
husband’s property, but she can claim interim maintenance from her husband.

• LAXMIBAI V. AYODHYA PRASAD

It was held that ‘wife’ and ‘husband’ used in Section 24 of the Hindu Marriage Act are
not be given strict literal meaning. The expression should mean a person claiming to be
a wife or a husband of the party constituted.

B. THE REQUIRMENT OF VALID PROOF OF SUCH BIGAMOUS MARRIAGE :

• KANWWL RAM AND OTHERS V. THE HIMANCHAL PRADESH

ADMINISTRATION.
On the judgment, it was 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”.
In this case, the Supreme Court reiterated the basic principles laid down is the earlier
cases decided on “Bigamy” stating-
A. For the prosecution of bigamy, the second marriage has to be proved as a fact and it
must also be proved that the necessary ceremonies had been performed.
 B. Another Suggestion laid down by this decision, which states that the admission of
marriage by an accused is no evidence of marriage for the purpose of proving, an
offense of bigamy. This Court rejected the said contention stating “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.”

• PRIYA BALA GHOSH V. SURESH CHNADRA GHOSH [1965] 2 S.C.R. 837:

It was held that if the alleged second marriage is not a valid one according to the law
applicable to the parties, it will not be void by reason of its taking place during the
lifetime of the husband or the wife of the person marrying so as to attract s. 494 I.P.C.
Again in order to hold that the second marriage has been solemnized necessarily so that
s. 17 of the Act could be attracted, it is essential that the second marriage should have
been celebrated with proper ceremonies and in due form. In the said decision this “Court
further decided the question whether it shall be necessary to establish that with respect
to the alleged second marriage the essential ceremonies shall be required to be
performed for valid marriage” has been answered in affirmative.

• TRAILOKYA MOHAN V. STATE OF ASSAM - AIR 1968, Assam 22

Facts: The petitioner already had a wife living namely Subarna Bala Nath, but he got
married a second time to Shefali Debi and thus committed the offense
of bigamy punishable under the IPC read with the provisions of the HMA 1955 and the
accused himself admitted the case under section 342 of the code of criminal procedure
that he did marry B during the lifetime of A and the admission was corroborated by oral
evidence of witnesses who in their cross-examination did not take a stand that the
second marriage was invalid.
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 totally
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.
C. WHAT SHALL BE THE LEGAL STATUS OF SUCH BIGAMOUS MARRIAGE?

The Hindu Marriage Act, 1955 provides for the condition that for a legally valid marriage the
basic condition is that neither of the party should have a spouse living at the time of the
marriage. In this behalf, under the Hindu Marriage Act, it is necessary is marriage should be-

• according to the customs and rites,

• that the spouse of the first marriage was a legally wedded spouse;
• The second marriage was subsisting on the date of the second marriage.
In a typical Indian society, the second woman is not generally treated in par with the respect
given to the first wife and along with this social stigma comes the issue of the of a void marriage
and the enormous pain of being cheated into the marriage can undoubtedly be extremely
depressing for any woman.

Even though there is no legal recognition given to a second wife, she may have chances of
getting maintenance from the husband and after amendments in the provisions in the family
laws, a provision regarding the legality of the issues from the marriages was made, as per
section 16 of the Hindu Marriage Act 1955 which states that the children born from a
bigamous relationship shall be held perfectly valid.

Also, in the absence of any clear provisions under the law, the children are eligible to get
maintenance from their father, though chances of claiming her ( second wife) rights are largely
dependent on the discretion of the judges.

• NAURANG SINGH V. SAPLA DEVI – AIR 1968 AIR 1958.

Smt. Cipla Devi made an application under Section 488 of the CrPC, for grant of
maintenance claim on the ground that she was married to Naurang Singh twelve years
ago however the relationship soured since last one year and Naurang Singh also married
a second wife, namely Kalpa Devi, that about eight months ago, doing which he
dispossessed her, out of her ornaments and clothes and turned her out of the house after
which she started to live with her father. It was also stated that the petitioner neglected
her maintenance during the period. It was held that she entitled to claim maintenance
under the relevant section even if she has lived with a man as his wife for 12 years and
borne him a child.
 • BANSHIDHAR V. CHHABI CHATTERJEE AIR 1967 PATNA 277
In this case, a Hindu woman claimed that she had been married to the petitioner in1962
while the petitioner alleged that she was not his wife and that he was already married
in 1952 for which he also provided evidence. It was held that the woman was indeed
legally married to the petitioner and she had the right to claim maintenance under sec
488.
But, where the petitioner on the date of marriage with the claimant woman had already
a legally wedded wife, his marriage with the claimant woman such marriage shall be
void under sec 11 of Hindu Marriage Act and thus a claim under sec 488 by a woman
can be made only if she is the legally wedded wife of the person from whom she claims
maintenance and such claim shall have nothing to do with the personal law on
maintenance has been changed by the Hindu adoption and maintenance act 1956, which
does not contain any provision entitling a woman to claim maintenance from a person
with whom she entered into a void marriage – as such, the claimant woman will not be
entitled to maintenance under sec 488.

• Will Live-in relationship count as marriage? When? : With re. Dhannulal and Others.
v. Ganesh ram and Others “ It was held that“ where it is proved that man and woman
have lived together as husband and wife for a reasonable time, the law will presume,
unless the contrary is clearly proved, that they were living together in consequence of
valid marriage and not in a state of concubinage.

HOW DOES BIGAMY AFFECT THE BIGAMIST’S SPOUSE?

In the event that a second marriage is bigamous, that marriage is invalid. No one needs to do
anything further to end the marriage, but the illegitimacy of the marriage results in the spouse
losing all rights within that relationship.

If the second, illegitimate marriage ends, the spouse has no automatic right to child or spousal
support. In many cases, the spouse must pursue a civil case against their former partner. If the
spouse was unaware of the first marriage and can prove he or she had reasonable cause to
believe the second marriage was valid, they may be able to claim a putative marriage. A
putative spouse has property and support rights similar to those of a normal spouse.
It is important to seek legal help regardless of whether you were aware of a former spouse’s
bigamy. If you were aware, you will likely need a legal defense for criminal charges due to
active participation in bigamy. If you were unaware and were the victim of deception, you may
be able to pursue a civil case to retain your property or receive support from your former
spouse.

Contact a defense or divorce attorney depending on your situation before filing any legal
paperwork. Legal assistance is essential in determining what your next steps should be.

CONCLUSION
Bigamy is essentially an offense in India, as under Section 494 of the Indian Penal Code. But
the situation in India technically differs from the practice in England, where monogamy is the
universal and solitary practice for all marriages. In India, the criminality or indictment for the
second or subsequent marriage depends upon the respective personal laws, customs, and
practices of the communities.
Though the Penal Code criminalizes and punishes for the offense of bigamy, it is the personal
laws that essentially decide whether it is awful for the community or not. If the personal law
allows the practice, it is lawful for that particular community, like for Mohammedans. Second
marriage, where it is prohibited by law, in effect amounts to disowning the first marriage.
The laws that prohibit bigamy exists to discourage the practice and to ensure that the first wife
is never disowned. However, it has been contended in the courts that if the husband is sent to
jail, the possibility of the couple in the first marriage to ever live together, is tarnished.
But the fact that the husband has committed an offense and that if he is not punished for it, the
offense will be nullified altogether, must be considered, hence validating the punishment for
the offense. It has also been put forth in the cases of Sarla Mudgal and Lily Thomas that a
uniform civil code for all castes and religions must exist with respect to bigamy.
If the laws were uniform, there would be no contradictions in the practice, and there would be
no violation of Article 25 and Article 26. The ruling, that even when a married non-Muslim
converts to Islam, he cannot contract another marriage without first having his first marriage
dissolved is definitely in compliance with the letter and spirit of Islamic law on bigamy.
The practice of marrying outside marriages is a gender-neutral practice. Nonetheless, since
bigamy is the offense in question, it is crucial to implement a uniform civil code as
recommended by the Malimath Committee, in order to curb the offense of bigamy.
 REFERENCES

▪ Section 494, Indian Penal Code, 1860.

▪ Whartons Concise Law Dictionary, 114, Fifteenth Edition (Concise) 2009.
▪ K.J. Aiyers Judicial Dictionary, 215, Fifteenth Edition, 2011.
▪ Hindu Marriage Act, 1955.
▪ Indian Concepts on Sexuality, Kaustav Chakraborty, Rajarshi Guha Thakurata, Indian
J Psychiatry, January 2013; 55 (Suppl 2) pp. 250“255.
▪ Promiscuity, Polygyny, and the Power of Revenge, Melissa Crouch, Asian Journal of
Law and Society, Vol 3, Issue 1, May 2016, pp. 85-104.
▪ Bombay Prevention of Hindu Bigamous Marriage Act, 1946.
▪ Madras (Bombay Prevention and Divorce) Act, 1949
▪ Parsi Marriage and Divorce Act, 1936
▪ The Special Marriage Act, of 1872
▪ The Shariat Act, 1937
▪ Committee on Reforms of Criminal Justice System Government of India, Ministry of
Home Affairs Report, Volume 1, March 2003.

WEBSITES
▪ https://www.livelaw.in/amongst-incorrect-reporting-what-the-sc-actually-said-about-
living-together-and-presumption-of-marriage/
▪ https://indiankanoon.org/doc/1440610/
▪ https://taxguru.in/corporate-law/bigamy-punishable-offence-india.html
▪ http://www.legalserviceindia.com/legal/article-2438-bigamy-as-an-offense-in-
india.html
▪ https://www.boydlaworangecounty.com/what-are-the-legal-consequences-of-bigamy/

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