Section 494 of IPC, 1860 lays down that, 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 descripttion for a term which may extend to seven years, and shall also be liable to fine.

From a catena of judgments of various High Courts and Supreme Court of India, it appears that the courts are more inclined and flexible to acquit the accused persons than to convict them, thus defeating the very purpose of this law monogamy or avoid polygamy. This law is intended to preserve the characteristic of monogamy in the institution of marriage.

The author of this article is arguing that the purpose of law is being defeated with acquittals and judgments instead of setting a detterent on prospective offenders are educating them to think about and find remedies beforehand if any offence under Section 494 is alleged. The author also makes an attempt to critically examine the validity of these judgments.


In Bhaurao Shankar Lokhande vs. State of Maharashtra, AIR 1985 SC 1564 the Hon'ble Supreme Court observed that prima facie the expression "whoever marries" must mean "whoever marries validly". If the marriage is not a valid one according to the law applicable to the parties then such second marriage is deemed to have not taken place. In order that a marriage be treated as valid one, essential ceremonies like Saptapadi and Homan must be proved.

From the above cases, it is evident that Courts in India insist that the marriage, in order to be a valid one, must be performed by performing Saptapadi and Homam. This is requirement under Section 7 of the Hindu Marriage Act, 1955. This section says:

1. A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.
2. Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

The sub-section (1) of the Section 7 of HMA says that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. However, it is found in various judgments of high courts and Supreme Court that Saptapadi is declared to be absolutely necessary and strict proof of performance of essential rites (in which Saptapadi is most important one as per Section 7 and Sub-section (2) of the HMA, 1955).

Is required to impose penalty to the accused person under Section 494 of Indian Penal Code, 1860. This requirement of strict proof of essential rites is justified on the ground that the prosecution must establish the guilt of the accused person beyond reasonable doubt, as the standard of proof is very high in criminal cases.

In the hype created by various judgments which require strict proof of essential rites, Section 7, Sub-section (1) is ignored. This section is important because if the parties to marriage, more particularly, if the complainant can prove that the marriage was solemnized in accordance with customary rites and ceremonies of their community in which there is no Saptapadi, then the conviction under Section 494 becomes necessary because the Trial court can judge the case without having to rely on settled case-law which requires strict proof of saptapadi.

Therefore, in this context, it is advisable for the prosecution to examine what are the essential rites and ceremonies followed in the alleged second marriage and whether the local customs of the community of the complainant or the accused person exclude Saptapadi or not. Witnesses may be presented for this purpose by presenting the prominent and revered members of community as witnesses, to present their evidence about the customary rites prevalent in their community so as to prove the solemnization of marriage.

If such customary rites exclude the Saptapadi, the strict proof of taking seven steps around the Homam is not required and the trial court can declare solemnization on the basis of the evidence given by the community elders of second marriage and proceed to convict the accused persons under Section 494 of IPC. This however requires the will to convict. In the absence of will to convict, the public prosecutors will not find ways such as these.

In the Hindu Marriage Act, 1955, there is a State Amendment by the State of Tamil Nadu, which has been inserted as Section 7-A. The relevant portion thereof is as follows:

7-A. Special Provision Regarding Suyamariyathai And Seerthiruththa Marriages:

1. This section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnized in the presence of relatives friends or other persons:
   
   1. by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or
   2. by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
   3. by the tying of the thali.
   The word "or" after each sub-clause is important because it indicates that all these ceremonies under (a), (b) and (c) are not necessary, anyone of these is sufficient to constitute a valid marriage. The Hon'ble Supreme Court in the case of S. Nagalingam v. Sivagami, AIR 2001 SUPREME COURT 3576, observed:
    
2. Section 7-A applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons. The main thrust of this provision is that the presence of a priest is not necessary for the performance of a valid marriage.
   
   Parties can enter into a marriage in the presence of relatives or friends or other persons and each party to the marriage should declare in the language understood by the parties that each takes other to be his wife or, as the case may be, her husband, and the marriage would be completed by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon any finger of the other or tie a thali.
   
   Any of these ceremonies, namely garlanding each other or putting a ring upon any finger of the other or tying a thali would be sufficient to complete a valid marriage. Sub-section 2(a) of Section 7-A specifically says that notwithstanding anything contained in Section 7, all marriages to which this provision applies and solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1987 shall be good and valid in law.
   
   However, it may be noted that this judgment is applicable only to the State of Tamil Nadu but in essence it brings a new dimension to the criminal law relating to Bigamy that strict proof of saptapadi under Section 7 (2) is subject to local customs of communities as laid down in Section 7 (1) of the Hindu Marriage Act, 1955.
    
3. In Baby Kar vs. Ram Rati, 1975 CrLJ 836 (Cal), the court held that "where the second Hindu marriage was not proved by showing Saptapadi and Homam, the mere production of marriage certificate under S.16 of the Special Marriage Act, 1954 would not be sufficient to prove that the second marriage was performed validly by performing all the essential ceremonies of a valid marriage". This view taken by Hon'ble Supreme Court in the case of Bhaurao Shankar Lokhande vs. State of Maharashtra, AIR 1985 SC 1564 supports this view.

At this stage it is relevant to quote the view of eminent Author on criminal law, R. Deb in his Offences Against Women, 1985 CrLJ, Journal Portion, pp.9-16 (at p.11) expressed as under:
Perhaps the courts in India were obliged to take the view they have taken because of the word "solemnized" occurring in S.17 of the Hindu Marriage Act, 1955 and the inhibition contained in the proviso to S.50 of the Evidence Act, which forbids taking into consideration even the opinion of a person with special means of knowledge to show that the two persons were always received and treated as wife and husband by their friends and relatives, so far as offences under S.494, S.495 of IPC are concerned.

Thus if one deliberately keeps a small lacuna for example, instead of taking seven steps (saptapadi) takes only six steps while celebrating the second marriage one can easily avoid the penalty pre- scribed under these sections even though one virtually ruins the lives of two girls.

The concern here is that if strict proof of essential rites is required by courts then unscrupulous elements can escape penalty by deliberately avoiding performance of certain essential rites. These days there are marriage halls which do not even allow Homam because the fire disturbs the ambience and grandeur of hall and mandapam (the dias for performance of marriage) decorated with flowers. People use such venues to get marriages performed and even because of this reason also the Saptapadi may not take place and this can become a ground for the persons accused for bigamy to claim that Saptapadi was not performed.


The question as to whether "Saptapadi", is an essential ritual to be performed, came up for consideration of this Court in some cases. One of the earliest decisions of this Court is [1971] 1 SCC 864 Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh wherein it was held that the second marriage should be a valid one according to the law applicable to the parties. In that case, there was no evidence regarding the performance of the essential ceremonies, namely.

"Datta Homa" and "Saptapadi". In paragraph 25 of the judgment, it was held that the learned Sessions Judge and the High Court have categorically found that "Homa" and "Saptapadi" are the essential rites for a marriage according to the law governing the parties and there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani.

It is pertinent to note that in paragraph 9 of the judgment it is stated that both sides agreed that according to the law prevalent amongst the parties. "Homa" and "Saptapadi" were essential rites to be performed to constitute a valid marriage. Before this Court also, the parties on either side agreed that according to the law prevalent among them, "Homa" and "Saptapaid" were essential rites to be performed for solemnization of the marriage and there was no specific evidence regarding the performance of these two essential caremonies. [I]

There is a need to identify that essential rites cannot be strictly proved for several reasons as under:

1. Due to modernization of Hindu Marriages and luxurious settings required in marriage venues where the parties spend lakhs of rupees to arrange marriage in a pompous manner, the venue may not have the facility to arrange for homam because it hurts the decoration and ambience of costly settings of marriage venue. People don't perform marriages reading judgments of high courts and supreme courts so as to take evidences for punishment under bigamy while performing marriages. So whatever modernization that takes place in Hindu marriages are accepted and they go ahead with the understanding that a marriage will be performed and solemnized despite skipping certain essential rites as prescribed under Section 7 of HMA, 1955.
    
2. The photographers and videographers may not have any interest to perfectly cover the event of saptapadi to the fullest extent. They may shift camera focus on to others, other events when saptapadi was taking place.
    
3. Due to cramps also sometimes the bride or bridegroom may request the priest to make the Saptapadi easier and priest without knowing the significance of rulings of Supreme Court or High Courts, may permit the couple to take lesser steps than is necessary under Section 7 of HMA, 1955, on humanitarian grounds.
    
4. The bride or bridegroom may have genuine difficulty in taking seven steps due to amputation of leg or legs. Then also it can be discarded by priest or family to lend comfort to them. A person with disability due to amputation both legs can never be punished for offence of bigamy because it is not possible for him to take steps.
    
5. As pointed out by R. Deb (supra) the person intending to commit offence of bigamy may have been tutored by some one to avoid taking seven steps so as to escape penalty under Section 494.

Because of such reasons as mentioned above also, the marriage may not be solemnized and the person accused of offence under Sec.494 can be acquitted holding that his second marriage is not a valid marriage.

In this context there is a need to find innovative ways of examination and awarding punishment by the trial courts before the Hon'ble Supreme Court rectifies the problems created out of settled law as indicated above.

Section 511 of IPC can be applied if validity of the marriage is not proved due to non-performance of essential rites

The courts have powers under Criminal Procedure Code, 1973 to alter charges under Section 216 read with Section 221(2) to alter the charges and punish the accused person for a different offence if the acts or series of acts indicate commission of a different offence. Where validity of marriage is not proved because of lack of evidence of performance of essential rites like Saptapadi, the court can convict the accused for making an attempt to commit an offence under Section 511 of Indian Penal Code, 1860.

In several cases it can be noticed that courts acquit the accused persons if second marriage (for which the accused person is accused of bigamy), is not a valid marriage. Instead of acquitting the accused person, the courts can alter charges using powers under Criminal Procedure Code under Sections 216 and Section 221 (2) to alter the charges framed and punish the accused person for a different offence.

It is obvious that if essential rites are not proved, at least the fact that accused person performed certain rites relating to marriage in that process an attempt to commit an offence of bigamy is clearly visible. Therefore he may be punished for Attempt to commit an offence of bigamy under Section 511 of IPC, 1860. A photo or few photos of marriage, video or witness testimonies are sufficient to prove the attempt to commit an offence of Bigamy which is punishable under Section 511.

Innovative methods of Examination by Prosecution and Examination by the Court under Sec.313 of Cr.PC needed in S.494 cases

Ist option-Conviction under S.493 of IPC
Public Prosecutors and the Trial courts must consider whether the claim of the person accused of offence under Sec.494 that the second marriage is not valid marriage amounts to his personal denial that it is not a valid marriage. If, in the opinion of the accused person, the second marriage is not a valid marriage he should be examined why he cohabited with his alleged second wife if he does not believe second marriage to be a valid marriage because of non-performance of essential rites.

By no stretch of imagination one can arrive at an understanding that someone undergoing ceremonies for second marriage innocently believed that it is a lawful marriage when he clearly knows that he has a wife and subsisting relationship with first wife. The only possibility is that one goes through the ceremonies of second marriage with full knowledge that it is not a valid/lawful marriage therefore, he has a guilty mind (mens rea) at the time of performance of essential rites of second marriage.

This gives rise to a situation where he does not believe that his marriage is not a lawful marriage but simultaneously engages in inducing a belief in the second wife that it is a valid/lawful marriage. Thereafter he also cohabits with her and also enjoys sexual intercourse with her treating it as part of his conjugal right.

This can be an offence under Section 493 of IPC which gives punishment for inducing a belief in his second wife that it is a valid (lawful) marriage and then proceeding with cohabitation. Here the question arises, whether the first wife can be a complainant in order that the court can alter charges from S.494 to S.493 of IPC using Cr.PC S.216 and S.221.

Section 198 of Cr.PC only says that the person complaining of offences under Chapter XX shall be an aggrieved person. It says that no Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code(45 of 1860) except upon a complaint made by some person aggrieved by the offence. It does not define explicitly who can be that "aggrieved person".

Therefore, by logical inference, it can be said that the first wife who complains about the second marriage can be aggrieved person because she is victimized by the act of husband in engaging in second marriage and then cohabiting with alleged second wife. Also, the society also recognises the second marriage by her husband and she (first wife) carries a stigma that she is rejected by her husband by the act of choosing another life partner. Therefore, the first wife fits into the definition of "aggrieved person" as per Secton 198 Cr.PC to proceed against husband under S.493 of IPC. This gives the power to the court to alter charges under S.216 read with S.221 of Cr.PC.

IInd Option - Conviction under S.496
S. 496 lays down that, whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

When the person accused of offence under S.494 denies that his second marriage is a valid marriage on the ground that essential rites are not performed, he should further be examined either by the prosecution or the court under S.313 Cr.PC whether he intended to marry or not. If he says he intended to marry, he can be punished under Section 511 of IPC if essential rites are not strictly proved. If essential rites are proved he can be punished under S.494.

If he says, he did not intend to marry, then for two reasons he can be punished under S.496:

1. He did not intend to marry but participated in marriage ceremonies. Therefore he has intention to defraud the society at large and also his first and alleged second wife. Obviously he would not keep his first wife informed. Thereby he shows his "dishonesty" and "fraudulent intention" in undergoing the ceremonies of marriage.
    
2. By having first wife and having a subsisting relationship with her, no one can innocently engage in ceremonies of second marriage in order to have a second wife. Therefore the expression "knowing that he is not thereby lawfully married" in S.496 is perfectly applicable for him. No man engaged with essential ceremonies of second marriage or second marriage can be said to be possessing a belief that he is "lawfully marrying" without obtaining or divorce from competent court from his first wife. Therefore the admission that "he did not intend to marry" clearly indicates that he committed offence under S.496 by engaging in marital ceremonies without believing that he is "lawfully marrying".

Here it would be pertinent to quote the judgement of Madras HC in the case of Prasanna Kumar vs. Dhanalaxmi and Ors [ii] in which it was observed by the Hon'ble HC:

"Before proceeding further it could be pointed out that as regards the offence under S. 496 I.P.C., rightly it is alleged that it was committed by A-1. But at the same time it is to be noted that certainly the said offence, even according to the complaint, may not be against the complainant, the first respondent, perhaps it is meant that the said offence had been committed against the second respondent herein whom the petitioner has been alleged to have married.

If it is the case of the first respondent-complainant that the petitioner has committed the offence punishable under S. 496 IPC, with regard to the alleged marriage between the petitioner and the second respondent, the complaint for the offence under S. 494 IPC cannot be maintained since S. 496 IPC applies to cases in which a ceremony is gone through which would in no case constitute a marriage, and in which one of the parties is deceived by the other into the belief that it does constitute a marriage or in which effect is sought to be given by proceeding to some collateral fraudulent purpose.

The essence of S. 496 IPC is that there should be a dishonest or fraudulent abuse of marriage ceremony and for this complaint by the person aggrieved is necessary. If it relates to the marriage of the petitioner with the second respondent the complaint by the first respondent is not maintainable."[iii]

It is humbly submitted that the view that the first wife cannot be a complainant for S.496 is erroneous in view of the fact that S.198 Cr.PC only says that for offences under Chapter XX which includes S.496 any "aggrieved person" can lodge a complaint. By what reasoning the learned judge arrived at this conclusion that only second wife is competent to file or lodge complaint under S.496 not the first wife is not provided in the judgement.

It is also relevant to note that the above judgment was set aside by the Hon'ble Supreme Court in Mrs. Dhanalakshmi vs R. Prasanna Kumar And Ors.[iv] wiithout particularly recording objections about views of Madras HC relating to competence of first wife to initiate proceedings under S.496.

Again this is only to say that a first wife can be aggrieved by the action of her husband engaging in marital ceremonies of second marriage and a stigma is attached to her by society around that she is left in lurch by her husband indicating that it is due to some fault of her. Society does not form its opinion about second marriage based on the idea that if certain essential rites are not performed it is no marriage. From its viewpoint if a man engages in marital ceremonies, the marriage is done.

For this reason she (first wife) certainly qualifies to be an "aggrieved party" within the meaning of this expression in S.198 of Cr.PC and therefore the courts are competent to alter charges from S.494 to S.496 using S.216 read with S.221 of Cr.PC.

Conclusion
Cause And Effect Relationship
There are some offences under IPC in which there can be no victim but offence is against society at large. Therefore the police can initiate action on behalf of state and prosecute the accused persons. In marital offences under chapter xx, unless someone is shown to have been victimized and unless such victim complains the law can not be set in motion to punish the Accused persons. Simple logic is that State can't be an aggrieved party in marital offences. That's why Section 198 CrPC is designed accordingly.

In offences where there is no complainant, what constitutes an offence can be independently ascertained without linking it to any grievance or victimization. Here there is only a cause and effect is not played out on the mind of anyone. But in offences where there is grievance/victimization there is cause and effect relationship between offence committed and victimization. In marital offences, for example, there is undoubtedly a cause and effect relationship.

Where there is no cause and effect relationship, it is open to the courts to decide what constitutes offence irrespective of the effect. But where there is effect, the court is obliged to consider what acts of the accused persons have caused the effect of grief or victimization.

This reasoning gives rise to a legal principle in Section 494 case, that the court cannot unilaterally lay down a ratio, independently of the victim's view of what constitutes an offence for her, in the behaviour/actions of her husband. There can't be a case where, husband, for example does not offend, (as per court's view that essential ceremonies prescribed under Section 7 of HMA, if not performed in second marriage, husband has not committed an offence), and wife remains victimized.

In coming to the understanding of what actions might have caused the effect of grievance, the courts will have to work out, the linkage between actions that caused grievance in the victim. That is why S.198 specifically states that only aggrieved person can initiate proceedings in offences relating to Chapter XX.

The Question Of Law, Though It Appears Preposterous, In This Context Is:
Whether non-performance of essential rites as per Section 7 of HMA caused grievance?
Certainly it is not. It is the relationship outside the existing marriage that causes victimzation not the manner in which marriage is performed and it's validity or invalidity.

So the appropriate question of law is:
Whether the victim believed it is marriage or in the eyes of victim it is a marriage.

Because no court is capable of convincing a victim that it is not a marriage, though certain essential ceremonies are not performed. Victims don't or can't articulate legal nuances and shape their feelings accordingly. A social stigma is attached to the victim and her image, if husband enters into extramarital relationship. In this process, various actions of the husband constitute various offences under Chapter XX of the IPC. To rule that strict proof of essential rites are required to prove validity of second marriage is over-simplification of the nature of offence without judging it on the anvil of legal principle involved in S.198 Cr.PC that only an aggrieved person is competent to file a complaint.

Second marriage is only one of the expressions by which a person accused of offence under S.494 offends an existing first wife. Irrespective of the validity of second marriage in the eyes of law, there is a fact of offensive conduct and the consequencial grievance. Therefore whether second marriage is valid or not is irrelevant point of law to consider. Courts have no right to indicate that if second marriage is not a valid marriage, there is no grievance, totally breaking the cause and effect relationship between offence and grievance.

Finally there is a need to show how far the concept of strict proof of essential rites is stretched by the Courts in India. The High Court of Guwahati extended the requirement of strict proof of essential rites to first marriage also in the case of Krishna Kanta Nag vs. State of Tripura [v] and observed that prosecution is duty bound to prove the essential ceremonies of first marriage also and it failed to bring any evidence on record to prove that first marriage is a valid marriage.

This is stretching the logic of proving guilt beyond reasonable doubt too far. It is humbly submitted that first marriage need not be proved beyond reasonable doubt for the simple reason that in the first marriage the husband of the complainant (first wife) has not been accused of any offence by marrying for the first time. Therefore strict proof of essential rites is only required where the act of marriage is allegedly an offence of bigamy under S.494.

It is irrelevant to examine whether the first marriage is a valid marriage. If the first marriage is void because of any other reason as per Hindu Marriage Act such as it is within prohibited degree of relationship then only examination for validity of first marriage is required. It is not required to prove the essential rites in first marriage.

End-Notes:

1. S. Nagalingam v. Sivagami, AIR 2001 SUPREME COURT 3576
2. https://indiankanoon.org/doc/696692/
3. https://indiankanoon.org/doc/696692/
4. AIR 1990 SC 494
5. https://www.casemine.com/judgement/in/56eaabfc607dba3c8ce40ba9

Written By: A. Chandra Sekhar, Assistant Professor, Pendekanti Law College, Chikkadpalli, Hyderabad