Bigamy and its Status in India

Marriage is when two people enter a relationship under the eyes of Law to start a family. It is a revered social institution and is considered a sacrament in a few religions, a civil contract in some and a mix of both in others. In India, there is no general Law governing marriage apart from a few statutes it is majorly governed by the application of personal laws followed by the parties.

The Central Government's take on marriage has been clearly stated in the affidavit filed in the Supreme Court as a response to a batch of petitions filed before the Apex court regarding Same-Sex marriages; the government looks at marriage as an institution with sanctity and that it is a concept which emerges from the personal laws.

Bigamy is an offence which is an intrusion into this institution that is to be protected and preserved at all costs as marriage is Socially, Culturally and Legally ingrained in our society.

Bigamy is when a person marries another while their first marriage is subsisting. The second marriage would be considered void and the offender will be charged with the offence of bigamy under the Indian Penal Code Section 494 and Section 495.

History of Bigamy

In ancient India, though monogamy was the norm, bigamy was not forbidden and according to the Manu smriti from which most of the Hindu Law Jurisprudence flows says that a man can lawfully marry a second time if the first wife is sick and barren. In addition, the second wife and the son from the second marriage will get precedence over the man's first marriage if no son is born from the first marriage. In other religions it was permitted as long as the customary Law they follow allows them to practice polygamy.

Later, during the British Raj, the Privy Council ruled that a Hindu man may not marry again without the consent of his first wife[1]

Parsis were the first community to have a statute in relation to matrimony prohibiting bigamy[2]

In Nandi @ Zainab v. The Crown[3], Nandi, complainant's wife, married a man from the religion she converted to. Section 494 of the Indian Penal Code was used to accuse her of the offence. It was decided that the marriage could only be dissolved by a court order and that the simple fact that she converted to Islam did not do so.

The case of Emperor v. Mt. Ruri involved a Christian wife. The Christian wife converted to Islam, gave up her faith, and wed a Mahomedan. It was decided that the second marriage was bigamous because the first marriage had not been dissolved under Christian marriage law, which was the legislation that applied in this particular instance.

Offence of Bigamy
Bigamy is a non-cognizable and bailable offence, it is a compoundable offence with the consent of the wife and leave of the court[4].

Bigamy is defined in section 494 of the Indian Penal Code,1860 as follows:
494. Marrying again during lifetime of husband or wife. -Whoever, having a husband or wife living, marries 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.

With few exceptions provided in the section itself which states that;

• if a Court of competent jurisdiction has declared the marriage to be void,
• if the partner has been absent from the person marrying's life for seven continuous years and no news of the partner being alive reaches the person before the second marriage takes place.

In case the person hides the fact of his previous marriage then the subsequent section covers such a situation,

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted:
Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprison­ment of either description for a term which may extend to ten years, and shall also be liable to fine.

In addition, the Court in Pashaura Singh v. State of Punjab[5], laid down guidelines to determine if the accused has committed the offence of bigamy:

1. There must be a first marriage
2. They must have married again
3. First marriage must be subsisting
4. The first husband/wife must be living

Section 198 of the Criminal Procedure Code tells us about who can file complaint regarding bigamy which is, a person aggrieved by the second marriage can file a complaint, in case of the wife being the aggrieved party; the wife herself, her mother, father, sister, brother, daughter or son or aunt or uncle or with the leave of the court any other related to her by blood, marriage or adoption.

There is no limitation period in starting the criminal process for bigamy, it's just that the second marriage must be proved by the accusation[6]. This second marriage too must be established by the person bringing the complaint to the court by showing that proper ceremonies were followed. The Supreme Court further stressed that the prosecution must demonstrate "that both the marriages (the first and second) were valid and in accordance with Law governing the parties" in order to succeed, the second marriage should be shown to have followed the proper ceremonies[7].

This is not ideal as it provides the accused a loop hole on the basis of technicality, without facing the consequences of his actions, this would set a bad precedent as it will be difficult to establish the second marriage by a person as such marriages are done in a clandestine manner which makes it difficult to collect evidence and prove.

Statistics in relation to bigamy
Despite the Judgement laid down by the Highest Court of the Land, Bigamy is still prevalent in Indian society as shown by the recent figures in the National Family Health Survey figures from 2019-20 shows the prevalence ofpolygamy was 1.9% among Muslims, 1.3% among Hindus and 1.6% among other religious groups.

It is indicated that socio-economic factors play a role in the marriage, in addition to region and religion. Region is specified because forms and customs of marriage vary in accordance with the change in region, for example Tamil Nadu has added Section 7A in the Hindu Marriage Act,1954 recognizing other forms of marriage which may not be recognized in other States. polygamous marriage was found to be higher among rural, older, uneducated and poor women. States with higher proportion of tribals have the highest percentage of polygamy.

In India, polygynomus marriages have decreased from 1.9% in 2005-06 to 1.4% in 2019-20[8] and less than 0.5% of the total population live in polygamous households[9].

Provisions of Bigamy in Laws

• Hindu Law
  Section 17 of Hindu Marriage Act,1955 makes bigamy and if the offender had a spouse alive when his second marriage began, then Sections 494 and 495 of the Indian Penal Code of 1860 would apply.
   
• Parsi Law
  Section 5 of Parsi Marriage and Divorce Act,1936 of this says that a bigamous marriage is null and void and shall be punishable under the respective provisions of the Indian Penal Code.
   
• Christian Law
  Indian Christian Marriage Act,1872 considers more than one marriage to be illegal and Section 60 of this act says that none of the parties to the marriage should have a wife or husband still living at the time of their marriage.
   
• Special Marriage Act,1954
  Section 44 of this Act lays down the punishment of bigamy and says that if a person solemnizes a marriage during the lifetime of his or her spouse is liable to punished under the sections 494 and 495 of Indian Penal Code,1860.

According to the Kerala High Court, Section 494 of the Indian Penal Code (IPC) can be used to prosecute any citizen who commits the crime of bigamy, regardless of his or her personal law, if all of Section 494's requirements and ingredients of Section 494 are met.[10]

With regard to Special Marriage Act,1954 Madras High Court had held that person married under this act if marries again when the first spouse is still alive is liable to be charged with bigamy irrespective of the person's religion[11].

Sarla Mudgal and its Consequences
One of the landmark cases in India regarding the topic bigamy came in Sarla Mudgal v Union of India[12] as people (mostly men) started converting to Islam to avoid the prohibition by their personal laws to not marry another person while the first marriage is subsisting and their previous spouse is alive as Mohammedan Personals Laws did not prohibit bigamy, they allowed the Mohammedan man to take up to four wives which was accorded to them in their Holy Book, provided he could take equal care of each.

In this case, the man married a second time by converting to Islam while his first marriage under the Hindu Law was subsisting. The Supreme Court held that conversion from Hinduism to another religion would not dissolve the first marriage, also makes the second marriage violative of Justice, Equity and Good Conscience. The Court laid down that when a man marries another without obtaining divorce under the Act which they married, the man would be liable to be charged under Indian Penal Code,1860 and Section 17 of the Hindu Marriage Act,1955 for bigamy.

The same was reiterated in the case of Lily Thomas v. Union of India[13] where the Supreme Court said that the second marriage done by a Hindu husband after conversion is manifestly fraudulent and it is done with a mind to avoid being charged with the offence of marrying twice.

It was laid down that the second marriage would be void and invalid and is a violation of Article 21 of the Constitution of India which says about the Fundamental Right to Protection of Life and Personal Liberty and the husband would attract the penal provisions under Section 494 and Section 495 of Indian Penal Code. The same precedent has been followed by the Judiciary till date.

In S.Nagalingam versus Sivagami[14], the Supreme Court held that the second marriage to be considered valid must have followed the essential rituals to solemnize the marriage. In cases where it is admitted by both the parties of the marriage that 'saptapadi' is an essential ceremony to make marriage valid as per their personal laws.

In this case, as the marriage was held in the State of Tamil Nadu where there is Section 7A of Hindu Marriage Act,1955 inserted by the state legislature stating that for a valid marriage, there is no requirement of a priest and the marriage can be solemnized in front of friends and family or any other persons just by exchanging garlands and rings.

It was held the accused had committed the offence of bigamy even though there was no 'saptapadi' to solemnize the ceremony, as section 7A is applicable to the accused , the second marriage was valid and hence bigamy was made out.

The 227th Law Commission Report has recommended the State to insert new sections in the legislations governing marriage such as 'Hindu Marriage Act, Christian Marriage Act, Parsi Marriage and Divorce Act' that a married person governed by any of these laws cannot marry again unless the previous marriage is dissolved or declared null and void by a competent court also the person doing such an act would be charged with bigamy under Indian Penal Code. They also recommended that bigamy be made a cognizable offence.[15]

Though the Judiciary has given succour to the first wives who have approached the Court, there is no prerogative taken by the legislature to bring in Laws to incorporate these decisions by the Apex Court. The Law should be amended to address the issue of religious conversion for the sole purpose of getting into a second marriage.[16]

Way Forward
It is a sad state of affairs that bigamy is still prevalent in modern society and people continue to escape being charged with the provisions of this offence under the Indian Law due to some holes in our Law which ought to be plugged by acting on the recommendations of the Law Commission. Such a practice is violative of the integrity and dignity of women. Therefore, the legislature should act and ensure there are no loose ends.

End-Notes:

1. Arumugam v. Thulukanam', 7 Mad 187 (C)
2. Jain, Kiran B. "VICE OF BIGAMY AND INDIAN PENAL CODE : RAMIFICATIONS OF AN ARCHAIC LAW." Journal of the Indian Law Institute 32, no. 3 (1990): 386–99.
3. ILR (1920) Lah 440
4. Parameswari v. Vennila, (2000) 10 SCC 348
5. (2010) 11 SCC 749
6. S. Nagalingam v. Sivagami, (2001) 7 SCC 487
7. L. Obulamma v. L. Venkata Reddy [ (1979) 3 SCC 80]
8. National Family Health Survey 2019-21 (NFHS-5), Ministry of Health and Family Welfare
9. Pew Research Organization,2020, https://www.pewresearch.org/fact-tank/2020/12/07/polygamy-is-rare-around-the-world-and-mostly-confined-to-a-few-regions/
10. Venugopal K. v. Union of India [ 2015 SCC OnLine Ker 798.]
11. Andal Vaidyanathan v Abdul Allah Vaidya[AIR 1946 MAD 446]
12. AIR 1995 SC 1531
13. AIR 2000 SC 1650
14. AIR 2001 SC 3576
15. "Bigamy and Religion",Vol.44,No.35,E&PW,pp.6-7 (2009)
16. Bigamy and the Indian Penal Code: A Critical Analysis by Shyam Krishna Sharma