Bigamy was prevailing from time immemorial in different religions. There was a point when it was common for a King to marry several women to expand their territory or relation with other rulers.
India is a broad and diverse country. It consists of distinct religions, caste, and beliefs of people. Hence, Personal laws govern people of different religions.
The principal law preventing Bigamy in India is the IPC but if personal laws do not specifically state Punishment for Bigamy or illegalize Bigamy, then an individual; cannot be convicted for the offense of bigamy.
Laws Prohibiting Bigamy
Bigamy is prevented under Section 494 of the Indian Penal Code. The law states that, whoever in the life of existing husband/wife marries someone else, such marriage by the purpose of its taking place during the lifetime of such husband or wife, should be regarded void and should be punished for such offense. If any person marries more than 1 time during the life of first husband or wife should be punished with imprisonment which may extend to 7 years, and shall also be liable to fine.
When is Bigamy an offense? What needs to be proved?
The following ingredients are required to prove by the prosecution:-
The Accused need be married
He must have got Second Marriage
The first marriage should live
The first husband/wife must be alive
Both marriages must have completed necessary ceremonies and must be valid.
Proofs required for lodging complaint in Bigamy
In the case of Neelaveni Vs. State Rep.By Insp.Of Police & Ors, where the aggrieved wife advanced a High court judgment for quashing the charge sheet under Section 406 and 494 of the Indian Penal Code. It was held “Report and the materials collected during the course of the investigation are required to be considered” and “Truthfulness or otherwise of the allegations is not fit to be gone into at this stage as it is always a matter of trial.”
Does a provision differ for different religions?
Even though Indian Penal Code prevents and punishes for Bigamy, it is vital that Personal laws in India should prohibit bigamy. We can go by the following Personal laws in India to understand this concept-
Hindu Marriage Act– Section 1 of Subsection (a), (b) and (c) states which particular religion and persons come under this Act. Hence, 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.
Parsi Marriage and Divorce Act– Section 5 of this act declares Bigamy null and invalid 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) says that “neither of the persons intending to be married shall have a wife or husband still living”, and making fake oath or declaration is punishable under Section 193 of IPC, this clarifies that more than 1 marriage will be considered illegal under this act.
Special Marriage Act 1954– Section 44 of this act states punishment for Bigamy and inflicts a penalty under Section 494 and 495 of Indian Penal Code.
Muslim Marriage Law– There are no codification or special provisions for this law. It is written in Quran that a Muslim male can marry 2, 3 or 4 times, if they are capable to treat and respect each wife equally after marriage, if not then only 1.
When is Second marriage valid?
There are certain exemptions for second marriage-
If the qualified court has declared 1st marriage of such person void.
If any person marries throughout the survival of first marriage, and husband or wife of that person is continually absent for 7 years and have not been heard of by such person as being alive within that period. But, facts should be disclosed to the person, with whom the 2nd marriage is contracted.
If any person comes under this exemption, then contracting second marriage should not be recognized as an offense, unless otherwise proved.
Legal Status of the Second marriage
Constitutionally, 2nd marriage is considered invalid if 1st marriage still persists. Section 494 of Indian Penal Code itself punishes for Bigamy unless second marriage comes under the exception provided in this section.
Is there any legal right for the 2nd wife?
The 2nd wife does not have any legal right. In fact, the 2nd marriage is considered void. Women whose marriage has been declared void suffers a lot. There are no specific provisions for the 2nd spouse, but there are some ways in which she can sue her husband-
Property rights of the Second wife
As rendered above, the 2nd wife does not maintain any rights that normally the 1st wife possess. The 2nd wife doesn’t have the right to her spouse’s property except such marriage is valid under exceptions provided in Section 494.
Property rights of children born out of such void marriage
It is complicated for any women whose marriage has been declared void to maintain children out of such marriage. There are no rights for the 2nd wife as well as it is very difficult to get maintenance from such void marriage. Henceforth, 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. Consequently, 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.
What if facts of the first marriage are not disclosed to the person whom the second marriage is contracted?
Whoever marries someone without disclosing him/her about their 1st marriage are punishable under Section 495 of Hindu marriage act. When a person keeps the mystery about his/her first marriage they are punishable with imprisonment of 10 years and are also liable to fine.
A secondary wife can file a petition for cheating and bigamy and may request to nullify that marriage.
Can a person convert his religion for contracting second marriage?
No, in a remarkable judgment, the Hon’ble Supreme Court of India outlawed this practice in Sarla Mudgal Vs. Union of India & Ors.said that “A marriage solemnized under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion.” It also that that 2nd marriage of a Hindu husband after his conversion to Islam is void marriage in terms of Section 494 IPC.
Who can file a petition for declaring marriage void?
The only 2nd wife is entitled to file a petition for declaring her marriage invalid. The 1st wife cannot file a petition to declare such marriage void.
Will Live-in relationship count as marriage? When?
Yes, a bench of Justice MY Eqbal and Amitava Roy in the case of Dhannulal and Ors. v. Ganeshram and Ors. stated that “where it is proved that man and woman have lived together as husband and wife, 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.”
Punishment for abetment of Bigamous marriage?
Whoever helps Bigamous offense shall be punishable under Section 494 read with Section 109 of IPC. A priest, who directs a bigamous marriage, would be an abettor, but, the mere attendance of persons at such a marriage would not necessarily constitute abetment. Likewise, granting accommodation in the house for such a marriage, would not per se result to abetment.