DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM
TOPIC:
PROOF OF MARRIAGE IN BIGAMY
SUBJECT
LAW OF EVIDENCE
NAME OF THE FACULTY:
DR. NANDINI C.P MA’AM
NAME OF THE STUDENT:
V. SRINIVASA PRABHAT
SEMESTER:
5
ROLL NO:
20LLB125

1
 ACKNOWLEDGEMENT

I would like to extend my sincere gratitude towards the Evidence law professor Dr. DR.
Nandini C.P. ma’am for allotting this topic as my study paper and giving very valuable
suggestion during my research. I would like to thank my friends and family for their support
and finally I would like to thank our vice chancellor sir for providing the required resources
that is used to gather the information on this work.

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 SYNOPSIS

OBJECTIVE OF THE STUDY

The Objective of the study is to research on how the offence of bigamy is proved in court and
how the law of evidence helps doing that.

SCOPE OF THE STUDY

The Scope of the study is related to the practice of bigamy in India, how does it become an
offence and how does different India legislations play their role in dealing with this issue.

METHODOLOGY OF STUDY

The methodology of the study is Doctrinal research and citation followed is 19 th edition of
Bluebook citation.

LITERATURE REVIEW

CHANGING DIMENSIONS OF THE CONCEPT OF MARRIAGE - A

CONTEMPORARY CHALLENGE TO PERSONAL LAWS IN INDIA

1. Changing dimensions of the concept of marriage - a contemporary challenge to

personal laws in India is written by Balwinder Singh and it is published by
International Journal of Advanced Research (IJAR). In this article the respective
author discussed about the topics relating to concepts of marriage according to
different religious laws and talked about the concept of live in relationship and its
legality and also talked about the Homosexual marriage. From this Article the present
author understood the concept of marriage under different religious laws so that he
can understand how is marriage dealt with and later understand the act of bigamy too.
Here in the present paper the whole understanding was presented to place a starting
point to understand the act of bigamy and how the Indian evidence act is related in
proving the marriage in Bigamy in the Indian Courts.

BIGAMY AND HINDU MARRIAGE

2. Bigamy and Hindu Marriage is written by Vijender Kumar and published by Indian
law institute. In this article the respective author discussed about the relationship in
marriage and rights of the parties in such relationships. After committing bigamy, the
reasons that lead to do that act and suggested the corrective measures against the

3
 offender in such relationships. From this article the author of the present paper
understood what is bigamy the background and status of such relationship and tried to
present the same in this paper.

THE HINDU MARRIAGE ACT, 1955

3. The Hindu Marriage act,1955 is written by Paras diwan and published by Cambridge
university press on behalf of the British institute of International and comparative law.
This article is a total overview of The Hindu marriage act and the authors explains the
act by dividing it into multiple concepts. The author of the present paper now read and
understood it thoroughly and presented the concepts of the capacity of a person to
marry and the required formalities.

CRITICAL ANALYSIS ON -NECESSITATE OF CEREMONIES FOR A VALID

MARRIAGE IN INDIA VIS-A-VIS JUDICIARY OVERREACH TOWARDS LIVE-
IN-RELATIONSHIP

4. Critical Analysis on Necessitate of ceremonies for a valid marriage in India Vis-A-Vis

Judiciary Overreach Towards Live-In-Relationship written by Prabhavathi N and
Dr.P.Ravishekhara Raju and published by Journal of research in humanities and social
science. In this article the respective author discussed topic of required ceremonies for
a valid marriage in India in regard with different legislations and also how they tried
to put an end to the polygamy or polyandry in India. The author also presented about
the section 7 of Hindu marriage act which gives certain Ingredients and also
requirements to prove that a valid marriage took place. The author in this present
paper using the above information tried to present the preface of how we can get to
present the proof of marriage in bigamy.

BIGAMY: A SOCIO-LEGAL PROBLEM AND ITS REMEDIES

5. Bigamy: A Socio-Legal Problem and Its Remedies is written by Dr. Rajesh S. Vyas
and published by international journal of research in Humanities and Social Science. In
this paper the respective author discussed about the problem of bigamy in the society
and how the Indian penal code of India deals with that. The author of the present paper
used this information to give the perspective on how the aggrieved parties approach
the court and how the law of evidence come in handy in the court proceedings.

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 For the research purpose the author also referred to books like ‘The Indian Evidence act’
written by K.D gaur, ‘The Indian Penal Code’ written by Ratanlal &Dhirajlal , ‘Family
law’ written by B.M Gandhi.

RESEARCH QUESTIONS

1. Whether the proving of marriage in Bigamy is possible in the Indian courts and what
role does Law of evidence play in this process?
2. Whether section 494 & 496 of IPC provide adequate opportunity to prove bigamy in
the Court?

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Abstract:

The illiterate women face the major problem of bigamy as they are unaware of their rights
and how they can protect themselves. Bigamy is defined by Indian Penal Code section 494 as
follows: "Whoever, having been married, marries again where such later marriage is void by
reason of it taking place during the Subsistence of the earlier marriage, commits bigamy". 1
According to Hindu law marriage is a very important sacrament of every Hindu individual's
life.

A Hindu marriage can be solemnized with certain customary rites and ceremonies that are
related to both parties. According to the Hindu Marriage Act, a marriage shall not be
considered valid if the necessary rituals and ceremonies, such as saptapadi, cannot be
demonstrated.

Christian marriage act governs the marriage laws of individuals who are Christians. There are
certain requirements like the process of Husband and wife must give a notice under the
section 12 to a particular priest that they wanted to solemnize their marriage. A man who gets
a second wife while the first one is still alive can be charged with bigamy.

Divorce dissolves a valid marriage, and the parties obtaining such dissolution can re-marry.
Indian Evidence act contains provisions which determines ways how to produce admissible
evidence. A Hindu marriage can be proved by establishing that these ceremonies had been
performed completely. To prove the offence of bigamy in the court of law it has a certain of
standard of proof. There are many ways like documentary proof or witnesses' statements to
prove the second marriage. In this paper we will investigate the standard of proof that is
required and case law examples on how the proof of marriage in bigamy is established.

1
Indian Penal Code,1860, No.45, Acts of Parliament, 1860

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Introduction:

Article 21 of the Indian Constitution guarantees personal freedom. This includes the right to
start a family and have a safe home life. It gives everyone the freedom to choose their life
partner, whether they are married or not. The religion-based family law lets people of the
same religion get married. The Special Marriage Act, on the other hand, lets people get
married no matter what they believe, but different ceremonies are required by all personal
laws for a marriage to be legal. Marriage ceremonies show how committed the bride and
groom are to each other and how much they love each other in front of everyone. It will bless
their marriage and help them get through any problems they may face along the way. Most
ceremonies have something to do with religion and show how people feel about their values,
devotions, sacrifices, and offerings. They often do rituals to get help from the supernatural or
to keep evil forces away. Most of the time, wedding ceremonies are different from one
religion to the next. It can be formal or casual, religious, or not, and expensive or cheap,
depending on how it should be done. In every way, the rituals show that a couple has moved
from being single to being married. It means that the two people want to start a family and a
new life together.

As far as statues of women in Indian society are concerned, Bigamy is a major socio-legal
problem, Women who live in rural areas are especially affected by this problem, and they
face a major social and legal problem that has to do with having more than one spouse.

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Bigamy:

Women have the major percentage of world’s population but still they are at the disadvantage
of receiving equal treatment in all places. Earlier Hindu and Muslim men married as many
wives as they would like to, from there, today women has reached a stage where such
practice is not allowed and will be punished and the courts have made economically difficult
for a Muslim to marry more than one wife.

The illiterate women face the major problem of bigamy as they are unaware of their rights
and how they can protect themselves from these offences related to bigamy. The education to
these women is very important because, to even prove the offence of bigamy in the court of
law, the victims should be highly cautious regarding few documents like marriage certificate,
photos, witnesses etc; such things prove to be valuable in proving the first or second marriage
in order to prove the offence of bigamy, after all with no proper evidence to prove the
marriage in bigamy, court will also be not able to do justice in such situations.

Bigamy is defined by Indian Penal Code section 494 as follows: "Whoever, having been
married, marries again where such later marriage is void by reason of it taking place during
the Subsistence of the earlier marriage, commits bigamy and shall be punished with
imprisonment for a term which may extend to seven years, and shall also be liable to fine." 2
Bigamy is punishable by imprisonment for a term which may extend to seven years, and by a
fine. The crime of bigamy is punishable under English law and is covered under the
preceding section. It makes it so that the crime of bigamy can be punished in situations in
which a remarriage would be invalid because it took place during the lifetime of either the
husband or the wife of the person who was previously married. Additionally, it makes it so
that a wife can be punished for the crime of bigamy if her husband is still alive and she
marries another man. The individual to whom the woman has since remarried is ineligible for
punishment under this provision of the law. It is only possible to accuse him with aiding and
abetting the crime.

Hindu Law:

According to Hindu law marriage is a very important sacrament of every Hindu individual’s
life, they believe it is one of the 16 sacraments of Hindu life. A Hindu marriage can be

2
id

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solemnized with certain customary rites and ceremonies that are related to both of the parties.
Hindu marriage act has certain provisions which govern a Hindu marriage.

“Section 7, thus, does not Prescribe any Particular Ceremony for Hindu Marriage but just lays
down that the marriage must be in accordance with the customary rites and ceremonies, and
where saptapadi forms a part of Custom, it must be essentially performed.” 3 The mentioning
of saptapadi to be a part of the custom implicates that this can be a proof of the performance
of marriage, any proofs as to that performance of that specific customary rites and
ceremonies validates the marriage legally in India.

Marriage ceremonies are performed often in India. There are a great number of categories
into which we might categorize the reasons for performing rituals and ceremonies. In the first
place, the Hindu Marriage Act, Section 7(1) and (2) informed us that it is necessary.  They
have a solid reputation and are recognized as authoritative figures within the community.
According to the Hindu Marriage Act, a marriage shall not be considered valid if the
necessary rituals and ceremonies, such as saptapadi, cannot be demonstrated. Second, for the
bride and groom, marriage represents a transition into a more authoritative, sensitive, and
communal way of life. The newlywed couple relies heavily, both emotionally and financially,
on the assistance that they receive from their family and friends. Thirdly, the ceremony
requires each spouse to publicly express their love for one another as well as make specific
promises, vows, and objectives as part of their joint commitment. Because of the ceremony,
they are now legally obligated to be truthful to one another for the rest of their lives and to
fulfill any additional responsibilities that may arise. In the fourth place, the significance of the
ritual is established by Hindu law.

“The Courts have held in a number of cases thus the rites and ceremonies for a marriage are
compulsory even though clause 1 of sec 7 of HMA act uses word may, here the word may
mean shall.”4 The interpretation that follows makes it clear that legislation or judiciary leads
to the opportunity that these ceremonies bring some value and legality to the marriage
performed. Without such provisions mandating these ceremonies it is difficult to bring
evidence to the court of law to validate a marriage or to prove bigamy.

Christian law

3
Vol 1 B.M GANDHI, Family law 108 (1st ed. 2012).
4
id

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The Christian marriage act governs the marriage laws of individuals who are Christians. They
have section 12 to section 14 of the act provides the procedure of solemnisation of Christians
marriage act. There are certain requirements like the process of Husband and wife must give
a notice under the section 12 to a particular priest that they wanted to solemnize their
marriage, also under section 39 of the act they are supposed to also give a notice to the
registrar. The formality of certain close relatives being present during the marriage, witnesses
being present, taking oaths in the present of the bible are few ceremonial obligations that
Christian marriages perform.

Section 494, 496 of IPC

The basic rule that a person is innocent until proven guilty applies just as strongly and strictly
to cases of bigamy as it does to other criminal cases. This means that it is up to the
prosecution to prove that all the elements of the crime have been met. Since there is no proof
of the important parts of a second marriage, a conviction for bigamy is not fair. The accused's
admission of a second marriage is not proof of it if the goal is to prove marriage in adultery
or bigamy. When it comes to this crime, women always get hurt more than men because most
women in our country do not know what the laws say about their personal lives. Since Hindu
law did not require monogamy until the 1950s, many Hindu women still do not know if they
can take legal action against a husband who gets a second wife while the first one is still
alive. At this point, it is enough to say that the second wife does not have any legal rights, and
the husband could be arrested for committing the crime if the first wife says so. For this
section to apply, a woman must show that she has a valid marriage under the personal law of
both parties and that the marriage was still going on when the husband got married again. In
this case, the supreme court ruled in "Boloram Baruti v. Mt. Sajya Baruti" 5(Case Citation)
that there must already be a valid marriage at the time of the second ceremony of marriage
and that the second marriage did happen with the right ceremonies and forms. The Supreme
Court also said that a marriage is not legal if the right ceremonies were not done. Divorce
ends a legal marriage, so people who have been divorced are free to get married again.

The chapter 20 of the Indian Penal Code deals with the Offences related to marriage, In that
section 494 to 496 deals with bigamy in detail. The ingredients under section 494 to say it is
bigamy are set out in a case “Pashura singh vs State of Punjab” they are as follows:

“1. The accused must have contracted 1st marriage

5
Boloram baruti vs Mt Sajya Baruti, AIR 1986 SC 107

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2. He must have married again

3.The first marriage must be subsisting and the spouse must be living”6 (Citation)

In the Case of “Santosh Kumari vs Surjith Singh” Court held that “Divorce dissolves a valid
marriage, and the parties obtaining such dissolution can re-marry” 7 (Citation). In this case the
lower court without granting divorce gave an order relieving a physically weak wife from a
burden of husband’s sexual demands and at the request of the wife, the court permitted him to
take another wife, this was held as wrong.

In the case of “Indu Bhagya Natekar vs Bhagya Pandurangan Natekar” Court held that it is
impossible to convict a person of bigamy if the evidence regarding the second marriage was
not brought before the court, “Unless the evidence regarding the performance of ceremonies
itself is not present before the court it is not possible to convict virtually convict under
bigamy”8 {Citation)

Section 496 applies in the situation when a person cheat by not going through the marriage
ceremony completely and later claims to the fact that the marriage itself is invalid. In such
cases the person is liable and punished for a term which extends to seven years.

A crime under IPC, 1860, section 494 is different from a crime under section 496. If the
accused wants to get married and goes through the necessary ceremonies while the other
spouse is still alive, it could be a crime under section 494 of the Indian Penal Code of 1860.
On the other hand, if the accused only wants a show of marriage and goes through the
ceremony knowing that he is not legally married, it is a crime under section 496 of the same
code.

Role of Indian Evidence act.

The Indian Evidence act contains provisions which determines ways how to produce
admissible evidence. As we have discussed in the above chapters, the Hindu marriage
contains certain ceremonies and customary practices provided and mandated by legislations
and customs. These ceremony procedures will be the supposed evidence to validate a
marriage. A Hindu marriage can be proved by establishing that these ceremonies had been

6
Pashura Singh vs State of Punjab AIR 2010 SC 922
7
Santosh Kumari vs Surjith Singh AIR 1990 HP 77
8
Indu Bhagya Natekar vs Bhagya Pandurangan Natekar 1992 (1) BomCR 390

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performed completely. In the case of Kishan vs Kanta “A marriage shall be complete with the
taking of the seventh step, if it did not then it is imperfect and revocable”9

To prove a Christian marriage the following are essential,

“1. Producing a marriage certificate

2. Evidence of witnesses present as the time of marriage,

3.Evidence of the parties to their marriage, or

4. Evidence of the neighbours surrounding their living place.”10 (Citation)

Now these forms of evidences can be categorised into primary form of evidence and
secondary form of evidence which are governed under Indian evidence act 1872, section 62
and 63. There are many numbers of ways like documentary proof or witnesses’ statements to
prove the second marriage and establish the offence of bigamy, the parties can use the
respective sections to approach the court of law.

To prove the offence of bigamy in the court of law it has a certain of standard of proof. “The
standard of proof here is not as strict as required in the case of offence of bigamy under
section 494 IPC. The ceremonies of marriage may be proved by preponderance of
probabilities.”11 Here the proof of ceremonies is in the civil nature and its standard is
preponderance of probabilities but where as in the criminal nature that is to prove the offence
of bigamy the standard of proof should be beyond reasonable doubt.

The proof of marriage in bigamy contains two aspects of standard of proof,

1. Beyond reasonable doubt

2. Preponderance of Probabilities

To offence of bigamy is especially mentioned and provided under Indian penal code, where
the guilty will be punished for committing the second marriage without following due
process of law or deceitfully by cheating. This is criminal in nature and in such cases the
offence or the charges should be established beyond reasonable doubt.

The proof of a valid first and second marriage falls under civil nature of the offence which
makes the standard of proof as preponderance of probability, the marriage ceremonies and

9
Kishan vs kanta 1983 (5) DRJ 117
10
Vol 1 B.M GANDHI, Family law 133-134 (1st ed. 2012).
11
Vol 1 B.M GANDHI, Family law 110 (1st ed. 2012).

12
certificates are very important to prove a valid second marriage which in return establishes
bigamy later if the offence was committed.

Case law Analysis:

1)S. Nagalingam vs Sivagami

Issue:

“Whether a marriage valid if the customary rite of saptapadi where rites and ceremonies of
the party does not include saptapadi is not performed?”12

Facts:

Appellant entered a second marriage with K during the subsistence of his first marriage with
the respondent. The second marriage was performed in accordance with the customs
applicable to the parties. "Saptapadi" was not performed. Respondent filed a criminal
complaint against the appellant under Section 494 IPC.

Reasoning:

According to Section 7 HMA, "saptapadi" is an essential ceremony for a valid marriage only
in cases where the customary rites and ceremonies of the party include "saptapadi". In the
instant case, "saptapadi" was not an essential ceremony included in the customary rites and
ceremonies of the party, whereas the provisions contained in Section 7-A, namely, the State
amendment in the statute, are applicable to them. Therefore, even though "saptapadi" was not
performed, the marriage is valid and the appellant has committed an offence of bigamy.

2)Santi Deb Berma v. Kanchan Prava Devi

Issue:

Whether a marriage valid if the customary rite of "saptapadi" where rites and ceremonies of
the party include "saptapadi" is not performed?.13

Facts:

12
S. Nagalingam vs Sivagami (2001) 7 SCC 487

13
Santi Deb Berma v. Kanchan Prava Devi AIR 1991 SC 816

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 A was married to B under Hindu Law and while his first marriage was validly subsisting, he
contracted a second marriage. Customary rite of the parties included "saptapadi" which was
not performed during the second marriage. B filed a criminal complaint against A under
Section 494 IPC.

Reasoning:

According to Section 7(2) HMA if the customary rites and ceremonies of the party include
"saptapadi", its performance is an essential requirement for constituting a valid marriage.
Only after "saptapadi" is performed in due form, the marriage can be said to be solemnised
within the ambit of Section 7 HMA. In the present case, the customary rites and ceremonies
of the party included "saptapadi" which was not performed; hence the marriage has not been
solemnised and is not a valid marriage.

3)Surjit Kaur v. Garja Singh

Issue:

Whether a marriage under the HMA valid if the essential ceremonies of the marriage are not
performed?14

Facts:

Surjit Kaur and Gulaba Singh contracted Karewa form of marriage. The marriage was not
solemnised in accordance with the customary rites and ceremonies of the party; only gur was
distributed after marriage.

Reasoning:

According to Section 7 HMA, a marriage has to be performed in accordance with the

customary rites and ceremonies. If it is not performed accordingly, it would not come within
the expression "solemnise marriage" occurring in Section 17 HMA and would not be a valid
marriage. The court relied on Bhaurao Shankar Lokhande v. State of Maharashtra in which
the court laid out that in absence of marriage performed with proper rites and ceremony, mere
living as husband and wife does not, at any rate, confer the status of husband and wife. In the
present case, the customary rites and ceremonies were not performed and mere distribution of
gur will not constitute the necessary ceremony. Hence, the marriage is not valid.

14
Surjet kaur vs Garja Singh 1994 SCC (1) 407

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4)Bhaurao Shankar Lokhande v. State of Maharashtra

Issue:

Whether a marriage under the HMA valid if the essential ceremonies of the marriage are
not?15

Facts:

Bhaurao was married to Indubai in 1956. He married one Kamlabai in 1962 during the
lifetime of Indubai. The essential ceremonies for a marriage were not performed during the
second marriage. Indubai filed a complaint under Section 494 IPC.

Reasoning:

According to Section 7 HMA, a marriage must be performed in accordance with the

customary rites and ceremonies. If it is not performed accordingly, it would not come within
the expression "solemnise marriage" occurring in Section 17 HMA and would not be a valid
marriage; the bare fact that the man and woman are living as husband and wife do not give
them the status of husband and wife. In the instant case, the marriage was not performed
according to customary rites and ceremonies, therefore it is not a valid marriage.

5)Ranjith kumar Bhattacharya vs Sabita Bhattacharya

Issue:

“1. Whether the plaintiff is liable to pay maintenance to the defendant?

2.Whether the evidence produced by the appellant is a conclusive proof of Christian marriage
between defendant no.1 and 2?”16

Facts:

The defendant claims that the plaintiff and herself are married lawfully according to Hindu
marriage act and has been living lawfully as husband and wife for 7-8 years and has a son
which is born legitimately out of their wedlock. The defendant claims for maintenance from
the defendant as well as her right of residence. She claims that defendant has driven her away
from her matrimonial home. For this the plaintiff disagrees with the said allegations and

15
Bhaurao Shankar Lokhande vs State of Maharashtra 1965 AIR 1564
16
Ranjith Kumar Bhattacharya vs Sabita Bhattacharya AIR 1996 Cal 301

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claims that the Plaintiff 1 &2 are Indian Christians by birth and are married according to
Christian rites in a church.

Reasoning:

The court after examining the evidence held that the plaintiff succeeded to prove that he is
married according to Christian rites by producing evidence like the marriage certificate and
its true copy from the registrar book of marriages kept by the cathedral church. But still Court
held that since it is also proved that plaintiff accepted the fact that defendant and plaintiff
cohabited for certain time, considering the arguments and detailed facts ordered 30,000
damages to be paid to defendant.

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Conclusion:

The Indian evidence act is an adjective law which supports and provides mechanisms to
substantial laws and to implement them. Section relating to admission of documentary
evidence and sections relating to witness statements are few examples of this process. To
prove an offence, we need certain standards of evidence, if not it might not be admissible in
the court of law. To prove bigamy that is defined in IPC we need evidences like proof of
performance of marriage ceremonies or any documents where it is evidently show that a valid
marriage already took place and now, he married again without proper divorce from the first
wife. The Proof here contains two aspects, that is criminal and Civil in nature. The
Substantial laws like IPC etc; do provide adequate opportunity to prove the offence of
bigamy and Indian evidence act plays a key role in proving the marriage before the court of
law. The proving standard is chosen respectively according to which aspect of the offence
that is meant to be proved.

Bibliography:

Journals and Articles

1.changing dimensions of the concept of marriage - a contemporary challenge to personal

laws in India

2.bigamy and Hindu marriage

3.the Hindu marriage act, 1955

4.critical analysis on -necessitate of ceremonies for a valid marriage in india vis-a-vis

judiciary overreach towards live-in-relationship

5.bigamy: a socio-legal problem and its remedies

Books

1.Family law written by B.M Gandhi

2.Indian Penal Code written by Ratanlal and Dhirajlal

3.Indian Evidence Act written by K.D gaur

Case laws:

1. S.Nagalingam vs Sivagami, (2001) 7 SCC 487:AIR 2001 SC 3576

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2. Santi Deb Berma vs Kanchan Prava Devi, 1991 Supp (2) SCC 616: AIR 1991 SC 816

3. Surjit Kaur vs Garja Singh,(1994) 1 SCC 407 : AIR 1994 SC 135.

4. Bhaurao Shankar Lokhande vs State of Maharashtra, AIR 1965 SC 1564

5. Ranjith kumar Bhattacharya vs Sabita Bhattacharya

6. Boloram Baruti v. Mt. Sajya Baruti

7. Pashura singh vs State of Punjab

8. Kishan vs Kanta

9. Indu Bhagya Natekar vs Bhagya Pandurangan Natekar”

10. Santosh Kumari vs Surjith Singh

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