Marriage has been defined as a pure sacrament, particularly in our Indian culture a bond which joins two lives together till the end of their lives unlike other countries where entering into a marriage is a contract. However, there are some instances where a certain person in a marital bond cheats with the other person and enters into a new bond of marriage during the lifetime of the other partner, doing which is also known as committing the offence Bigamy, the sole reason being it is immoral on the part of the first partner to start a new life at the expense of happiness and peace of the previous partner in marriage.
i. Section 494 of the IPC provides about “Bigamy” as thus “Whoever, having a husband or wife living, marries again in any case in which such marriage is void by reason of its taking place during the life 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”. Bigamy has been made outlawed as it is a non-cognizable as well as a bailable crime in India.
ii. The Indian Penal Code also recognizes also the fact that it is also a fraud on the part of the second wife/husband concerned to conceal the fact regarding the former marriage and doing such has been made punishable under section 495 of the IPC as such person committing such act shall be punishable with the imprisonment of either description for a term which may extend to maximum ten years and shall also be liable to fine.
Such section shall not apply in the following circumstances-
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 fulfils 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.
The following could be cited as some of the common reasons-
a) The ancient society was predominantly a patriarchal society, where women had to agree to the wishes of the male head of her family.
b) The low status of women in society.
c) Lack of any prohibition in this aspect was partly due to the separation between land laws and religion (as the priest was the religious head and the king was the “judicial head”.)
d) The necessity of having a “male child”.
Does this provision of prohibition from Bigamy differ on the basis of religion-wise or Area- wise? The personal laws in India provide for the following legislation for the prohibition of “Bigamy”-
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 (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.”
viii. But, Article 3 of the Goa Family laws 1867 provides for the following laws which are somewhat different from the Hindu Marriage Act –
a. “The marriage contracted by a male Gentile Hindu by simultaneous polygamy shall not produce civil effects; except in the following cases only –
i. Absolute absence of issues by the wife of the previous marriage until she attains the age of 25 years.
ii. Absolute absence of male issue, the previous wife having completed 30 years of age, and being of lower age, ten years having elapsed from the last pregnancy;
iii. Separation on any legal grounds when proceeding from the wife and there being no male issue,
iv. Dissolution of the previous marriage as provided for in Article 5.”
Bigamy or Polygamy among Hindus is sometimes accepted in some rural areas as a custom often with approval by earlier wives. The 2005-06 National Family Health Survey (NFHS-3) found that about 2 per cent of women reported that their husbands had other wives besides her which shows that despite so many legislations the practice is still in continuance in many parts of India.
COURT RULINGS ON BIGAMY:
A. Can a person convert his religion for contracting a second marriage?
i. 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.
ii) In 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 requirement of Valid proof of such Bigamous Marriage:
iii) In Kanwwl Ram and others v. The Himachal 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.”
iv. Priya Bala Ghosh Vs Suresh Chandra Ghosh 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.
v) 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-
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.
vi. Case- Naurang Singh v. Sapla Devi – AIR 1968 All. 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.
vii. Case: 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.
WHERE DOES THE SOLUTION LIE?
1) In, the landmark judgment of the case Mohd. Ahmed Khan v. Shah Bano Begum (1985) & Sarla Mudgal v. Union of India (1995 air 1531 SC
The court felt that some mischievous persons in the society were trying to take benefit from the legal loopholes and the urgent need to implement A “Uniform Civil Code” throughout the nation but also lamented that Article 44 has remained a “dead letter “ due to lack of support from all the communities in India but the stand taken by B.R. Ambedkar in the Constituent Assembly debates has survived the years as Dr. Ambedkar had stated” UCC is desirable but till the moment should remain voluntary. “Thus, a UCC cannot be implemented until there is support from all the communities in India.
But what does the Uniform Civil Code says? Article 44 of the Directive Principles in the Constitution says the “State shall endeavor to provide for its citizens a uniform civil code (UCC) throughout the territory of India which means that there shall be similar laws for civil law matters like marriage, divorce, maintenance, distribution of property, etc. due to which it will get easier to control such offenses like Bigamy.
Thus, the topic of the Uniform Civil Code is being considered widely debatable taking into consideration it’s pros and cons. While there may be problems with other provisions of implementing a UCC for the nation, but this can definitely provide a legal bar against “Bigamy and could discourage such bigamous relationships”. But, a common conscience throughout the nation has not reached this level yet.
2) Grant of Injunction
Till now there are no such laws to bring a petition with a view to restrain a husband to contract marriage further by wife against her husband however a suit for a perpetual injunction by the wife restraining her Hindu husband from contracting second marriage would lay in the jurisdiction of a civil court to entertain such suit which is not excluded by Hindu marriage act.
Who may file a case? A petition for a declaration that the second marriage is void can be filed by only parties to the marriage and not by the first wife.
It has been widely accepted that in a nation with varied customs, languages, and religions, people tend to take benefits from the legal loopholes available for instance earlier there was a case where a man changed his religion just to ensure that he could marry fraudulently to keep two wives at the same time by changing his religion into Islam religion where they are allowed to have four wives at a time. It has been provided time and again that no religion professes about crossing the norms of morality, all religions do emphasize to love, respect and support women and not to make them” an instrument of manipulation as well as exploitation” and in the recent years the malpractice of “Bigamy” has slowed down to a great extent, and reductions in such offenses against women could only lead to the establishment of an ideal society to live on.