KES’ Shri. Jayantilal H.

Patel Law College, Mumbai

Constitutionality Of Bigamy in India

Family Law I

A project submitted in partial fulfilment of the requirements for

The 2nd Semester of LL.B Course

By
Avantika Gaud
First Year LL.B
Division A
Roll No – 40

Under the Supervision of

Dr Arti Gadre
Date of Submission- 29th May, 2023

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 INDEX

Sr No. PARTICULARS Page

No.
1. INTRODUCTION 3

2. BACKGROUND 4

3. 5
HINDU MARRIAGE ACT, 1955

4. 7
CRIMINAL LAW

5. EVIDENT ACT 9

6. OTHER PERSONAL LAWS 11

7. SUGGESTIONS 13

8. CONCLUSION 15

9. REFERENCES 16

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 INTRODUCTION

In India, the practice of bigamy, which involves a person having more than one spouse
simultaneously, is generally considered illegal and unconstitutional. The legal framework
governing marriage and personal laws in India varies based on religious affiliations.

The Indian Penal Code (IPC) criminalizes bigamy under Section 494, which states that
"whoever, having a husband or wife living, marries again in any case in which such marriage is
void by reason of it taking place during the lifetime of such husband or wife, shall be punished
with imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine."

Furthermore, various personal laws in India, such as the Hindu Marriage Act, the Muslim
Personal Law, and the Indian Christian Marriage Act, regulate marriage practices among
different religious communities. These personal laws generally prohibit bigamy and provide for
legal consequences if someone engages in it.

The Indian Constitution, under Article 21, guarantees the right to life and personal liberty, which
has been interpreted by the judiciary to include the right to marry and choose one's spouse.
However, the exercise of this right is subject to reasonable restrictions, such as those imposed by
personal laws and statutes aimed at preserving the sanctity of marriage and preventing the
exploitation of individuals.

It is important to note that different personal laws govern marriages in India, and the legality of
bigamy may vary depending on the religious affiliation of the individuals involved. For example,
the Hindu Marriage Act prohibits bigamy for Hindus, while Islamic personal law allows Muslim
men to have up to four wives, subject to certain conditions.

Overall, bigamy is generally considered illegal and unconstitutional in India, except under
specific circumstances permitted by personal laws applicable to particular religious communities.

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 BACKGROUND

Marriages in India are considered to be an unbreakable bond which connects two lives together,
religiously and socially they are known to be as one single entity. The religious text “Rig-Veda”
which also forms the basis for the Hindu law in India provides that “a man’s life is incomplete
without his wife, with whom he fulfills all religious ceremonies and thus attains” moksha.

Thus, the Hindu religion doesn’t expressly allow for marrying more than once but historical facts
do suggest that ancient rulers, rich merchants, and kings used to have more than a wife
(including mistresses & concubines. Though it is largely unclear about how the practice of
bigamy started and what made it prevalent among common masses the practice is so common
must have led the British colonial Empire of India to permit the Islamic provinces to allow
husbands to have multiple wives despite the fact that the tradition of marrying twice or more was
common among Hindu rulers, rich landlords as well as among common people at that time.
Though it remains a mystery about who started the practice of bigamy, the historical facts
provide that the practice was prevalent not only among Muslims, whose religion allows to have
up to four wives at a time but this practice was widely prevalent in Hindus, Sikhs, Christians &
Buddhists as well. Generally, wealthy landlords, merchants, kings, and rulers used to have more
than a wife (along with mistresses & concubines) in the past. For instance, the king of Punjab
“Maharaja Ranjit Singh is believed to have four of his wives and seven concubines committing
the tradition of Sati, and when he was cremated in Lahore and their urn-like memorials exist at
his Samadhi.

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 HINDU MARRIAGE ACT, 1955

With the commencement of Hindu Marriage Act, 1955 (HMA), one of the condition provided for
a valid for a valid marriage was that neither party should have a spouse living at the time of the
marriage. Under the old law, there was a bar against a woman marrying a second husband while
her first husband is alive unless custom permitted her. There was no such bar against men, till
some States passed laws for prevention of bigamous marriages, and introduce the principle of
monogamy among Hindus. After 1955, with the help of the aforementioned provision and
Section 11, Hindu Marriage Act, second marriages came be declared null and void ab initio. In
this behalf, under the Hindu Marriage Act it is necessary is a marriage according to the customs
and rites, and secondly, that the spouse of the first marriage was a legally wedded spouse and the
second marriage was subsisting on the date of the second marriage. In case of a spouse unheard
of for more than 7 years, a presumption can be drawn under Section 108 of the Indian Evidence
Act, 1872 (Evidence Act) that the spouse is dead. In such an event, the other spouse can marry a
second time on the ground that the former marriage is dissolve due to the civil death of his/her
spouse. This was held in Lalchand Narwali v. Mahant Ram Rupgir. Also it is important to note
that as a second marriage is void even if it is not declared as void, a third party interested in the
marriage (the first wife) can also get the second the second marriage declared as null and void.

Ishwar Singh v. Smt Hukum Kaur - AIR 1965 All. 465

Facts:
The opposite party Smt. Hukum Kaur filed an application under section 488 CrPC against the
applicant on the allegation that the applicant was her husband, that he was neglecting her and
that she was entitled to get her monthly allowance from him for maintenance. The applicant
denied to have married the opposite party. Party led evidence and the learned magistrate held that
the marriage of the applicant with the opposite party has been established, that the applicant with
the opposite party and, therefore, he is liable to pay her a maintenance at the rate of Rs. 15 per
month. On revision the learned session judge has referred the case with a recommendation at the
order passed by the magistrate be set aside, because, admittedly the opposite parties previous
husband Brahma Pal was alive and therefore there could be no legal marriage between the
opposite party and the applicant entitling the opposite party to receive any maintenance.

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Held:
In this case it was also observed, "so long as such a divorce has not be obtained, the previous
marriage subsists and, therefore, the second marriage cannot be contracted by the Hindu so long
his spouse is living". Section 5 of the HMA provides that the marriage may be solemnized
between any two Hindu's , if neither party has the spouse living at the time of the marriage. In
the instant case the previous husband of the opposite party is still alive and therefore a second
marriage with the applicant even it is held to have taken effect was wholly illegal and can not
given any right to get a maintenance from the applicant.

Trailokya Mohan v State of Assam - AIR 1968, Assam 22

Facts:
Petitioner having already a wife living name Subarna Bala Nath , married a second time one
Sefali Debi and thus committed the offence of bigamy punishable under the IPC read with the
provisions of the HMA 1955.

Held:
In this case the court further observed, under the provision of sec 5 (1) HMA , one of the
condition of a valid Hindu marriage is that it should be solemnized between two Hindus , neither
party having a spouse living at that time. Where the accused himself in his statement under sec
342 CrPC had admitted that he did marry A during the life time of Bill of Lading , whom he
married first. And that admission was corroborated by oral evidence of witnesses who in their
cross-examination did not take a stand that the second marriage was invalid, there is a
presumption of a valid marriage and when a strong satisfactory and conclusive evidence to rebut
the presumption was totally lacking in the case, it must be held at a valid second marriage was
solemnized and that was the basis of the admission made by the accused and it could be relied
upon.

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 CRIMINAL LAW

Under criminal law, the first wife aggrieved by a second marriage can file a complaint for
bigamy. Under section 494, IPC, "whoever, having a husband or wife living, contracts a
marriage during the life of the former husband or wife, is void…" and therefore the same is also
an offence punishable with imprisonment up to 7 years or fine or both. This section does not
extend to any person whose marriage with such husband or wife has been declared void by the
court of competent jurisdiction. Under section 495, IPC, bigamy committed by concealing the
fact of the first marriage is punishable with 10 years imprisonment or fine or both. A complaint
can also be filed for cheating under section 415, IPC. Cheating is defined under section 415, IPC,
as fraudulently or dishonesty inducing the person so deceived to do or omit to do anything,
which he would not do or omit if he were not so deceived. Such an act or omission should be
proved to cause or likely to cause damage or harm to that person in body, mind, reputation or
property. Therefore, if the fact of the subsistence of the first marriage is kept a secret, apart from
a complaint under bigamy provision, a complaint can also be filed for those offences of cheating.
Often it is difficult to prove the fact of the second marriage. A man faced with the criminal
complaint for bigamy would often argued that his relationship with the second woman was not
one of marriage as the necessary as the necessary formalities of a valid marriage as required by
law were not performed.

Naurang Singh v. Sapla Devi - AIR 1968 All. 1958.

Facts:
Smt. Sapla Devi made an application under Section 488, CrPC, for grant of maintenance on the
ground that she was married to Naurang Singh, petitioner about two years ago and thereafter one
year of the marriage the relation between them became strained and Naurang singh also married
a second wife, namely Kalpa Devi, that about eight months ago he, dispossessed of her
ornaments and cloths and turned her out of the house, and there after she started living with her
father. It was said that during this period, Naurang Singh completely neglected to maintenance at
Rs. 30 per mensem from her husband.
Issue:
Under Section 488, CrPC is she entitled to maintenance even if she has lived with a man as his

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wife for 12 years and borne him a child.
Held:
R. CHANDRA, J.:
The learned magistrate found that Smt. Sapla Devi was the wedded wife of Naurang Singh, so he
granted her maintenance at the rate of Rs. 40 per mensem. Under Section 488, CrPC is she
entitled to maintenance even if she has lived with a man as his wife for 12 years and borne him a
child. Only legally married woman are entitled to maintenance under section 488, CrPC. It was
observed, "Under section 5 and 11 of HMA, 1955, a second marriage with a previous married
wife living is null and void".

Banshidhar v Chhabi Chatterjee - AIR 1967 Patna 277

Facts:
CrPC (1898) sec 488 - Hindu woman claiming to have been married in 1962 to petitioner -
Petition allegation that she was not his wife and that he was already married in 1952 - on
evidence.
Held:
Woman to be legally married to petitioner - maintainability of claim under sec 488 - if petitioner
on the date of marriage with the claimant woman had already a legally wedded wife, his
marriage with the claimant - woman will be void under sec 11 of the HMA. 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 claim maintenance - such claim has 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.

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 EVIDENT ACT

Under Section 114 of the Evident Act the Court shall presume the existence of probable facts,
having regard to human conduct and the common course of the events and common sense being
used as the judicial tool. In sumitra Devi v. Bhinkan Chaudhary, it was held that the fact that the
couples were living as husband and wife for decades was relevant in proving factum of their
marriage. Again in Rangnath Parmeshwar v. Pandirao Mali, it was held that if H and W were
living as Husband and Wife, then even in the absence of proof to that effect, a rebuttal
presumption would arise that the marriage between them was valid.

Sumitra Devi v. Bhikan Choudhary - (1885) 1 SCC 637.

Facts:

Sumitra Devi filed an application for maintenance under Section 125 of the Code of Criminal
Procedure for herself as also a minor daughter alleging that she had been married to the Bhikan
sometime in 1971 and out of the wedlock the child had been born. She further alleged that the
fact that the respondent was already married and his spouse was living was not known. After the
discovery of the previous marriage of the respondent the relationship between the parties
gradually became strained and ultimately the respondent started totally neglecting the appellant
and refused to maintain her. She had, therefore, no option left but to ask for maintenance for
herself as also for the child.

Issue:

Criminal Procedure Code, 1973 - Section 125 - Hindu Marriage Act, 1955 - Section 7 - There
can be a marriage acceptable in law according to customs which do not insist on performance of
rites as saptapadi and marriages of this type give rise to legal relationship which law accepts.

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Held:

RANGANATH MISRA, J: The Additional Sessions Court and the High Court has adopted a
technical approach while considering the question of marriage. Criminal Procedure Code, 1973 -
Section 125 - Hindu Marriage Act, 1955 - Section 7 - Evidence Act, 1872 - Section 114 - Parties
had lived together about a decade public records including voters' lists described them as
husband and wife and competent witnesses of the village of the wife as also the husband had
supported the factum of marriage witnesses have also spoken about the reputation of the
appellant being known in the locality as the wife of the respondent.

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 OTHER PERSONAL LAWS

i. Hindu Marriage Act 1955 – Section 1 of Subsection (a), (b) and (c) states which
specific religion and persons come under this Act. Thus, under Section 17 of the
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.

ii. Parsi Marriage and Divorce Act– Section 5 of this act declare Bigamy null and void
or dissolved and impose a penalty under Section 494 and 495 of Indian Penal Code.

iii. Christian Marriage Act– Even though the Christian Marriage Act doesn’t have
specific provisions 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.

iv. Special Marriage Act 1954– Section 44 of this act states the punishment for Bigamy
and imposes a penalty under Section 494 and 495 of the Indian Penal Code.

v. Foreign Marriage Act 1969- Section 19 of this act states the punishment for Bigamy
and imposes a penalty under Section 494 and 495 of the Indian Penal Code.

vi. Muslim Marriage Law– There is 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.
Muslims in the rest of the country is subject to the terms of The Muslim Personal Law

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 (Sharia) Application Act of 1937, interpreted by the All India Muslim Personal Law
Board.

vii. Provisions for Scheduled Tribes & Castes- As special protection has been provided
to the socially backward classes of the society, the Constitution of India is of the view
that the traditional customs and cultural practices should not be hurt. Therefore,
Section 2 (2) of the Hindu Marriage Act states that “Nothing contained in this shall
apply to the members of any Scheduled castes within the meaning of Article 366(25)
of the Constitution unless the Central Government, by notification in the Official
Gazette, otherwise directs. Also, the punishment for such offences will be considered
by looking into “Customs” of such a community or religion. On which the Supreme
court of India gave a judgment in the affirmation of the judgment given by the Delhi
High court earlier that “in the absence of specific pleadings, evidence, and proof of
the alleged ‘custom’ making the second marriage void, no offence under Section 494
of the IPC can possibly be made out against the respondent.”

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 SUGGESTION

In India, bigamy is considered a criminal offense under Section 494 of the Indian Penal Code. It
is illegal for a person to marry someone while their previous marriage is still subsisting. This
applies to all individuals, regardless of their religion.

The issue of the constitutionality of bigamy in India is complex, as it involves balancing

individual rights and religious practices with the principles of gender equality and social welfare.
Here are some key points to consider when discussing the constitutionality of bigamy in India:

i. Right to Equality: The Indian Constitution guarantees the right to equality to all its
citizens. This means that laws should not discriminate based on gender, religion, or
other factors. Prohibiting bigamy can be seen as upholding the principle of equality
between men and women, as it prevents individuals from entering into multiple
marriages without the consent or knowledge of their existing spouses.
ii. Women's Rights and Empowerment: Bigamy has often been associated with the
exploitation and mistreatment of women. It can lead to emotional distress, financial
difficulties, and social stigma for women who become victims of such practices.
Banning bigamy can be seen as a step towards protecting women's rights, ensuring
their dignity, and promoting their empowerment.
iii. Religious Freedom: India is a diverse country with multiple religions and personal
laws. Different religions have varying practices and beliefs regarding marriage.
However, the right to religious freedom is not absolute and can be subject to
reasonable restrictions. The Indian legal system has established certain limits on
religious practices when they conflict with public order, morality, or the rights of
others. Prohibiting bigamy can be seen as a reasonable restriction on religious
practices to safeguard the rights and well-being of individuals, particularly women.
iv. Social Welfare and Family Stability: The institution of marriage is considered
fundamental to Indian society, and family stability is viewed as crucial for social
welfare. Bigamy can disrupt the harmony and stability of families, leading to various
social and legal complications. Banning bigamy can be seen as a means to protect the
sanctity of marriage and promote family well-being.

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It is important to note that the Indian legal system has made provisions to address specific
religious practices through personal laws. For example, some personal laws recognize and
regulate polygamy for specific religions, subject to certain conditions. These provisions are often
debated and analyzed in terms of their constitutionality and their compatibility with the
principles of gender equality.

In conclusion, the constitutionality of bigamy in India involves balancing individual rights,

religious freedom, gender equality, and social welfare. The issue requires a careful consideration
of these factors, along with an understanding of the evolving societal norms and the need to
protect the rights and well-being of all individuals, particularly women.

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 CONCLUSION

The scenario you described highlights a complex issue involving legal loopholes and cultural
practices. It is true that in nations with diverse customs, languages, and religions, people may
exploit legal loopholes to their advantage. In the case you mentioned, an individual changed his
religion to marry fraudulently and maintain multiple wives, taking advantage of the allowance
for polygamy in Islam.

However, it is important to note that the actions of a few individuals do not represent the beliefs
or teachings of an entire religion. No religion advocates for the crossing of moral norms or the
manipulation and exploitation of women. All major religions emphasize love, respect, and
support for women.

Over the years, there have been efforts to address and reduce offenses like bigamy, which can
harm women and go against societal norms. Societal progress, education, and awareness
campaigns have contributed to a decrease in such practices. As societies become more informed
and develop a deeper understanding of gender equality, the reduction in offenses against women
can lead to the establishment of a more ideal and equitable society.

It is important for societies to continue working towards the empowerment of women, promoting
gender equality, and creating legal frameworks that protect the rights and well-being of all
individuals, regardless of their religion, language, or customs. By doing so, societies can strive to
create a more just and inclusive environment for everyone to live in.

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REFERENCES

 https://www.legalservicesindia.com/articles/rfs.htm

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

 https://blog.ipleaders.in/position-bigamy-indian-law/

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