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Bigamy: Statutory Provisions and Judicial findings On Bigamy

Bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. In the case of a person in the process of divorcing his or her spouse, that person is taken to be legally married until such time as the divorce becomes final or absolute under the law of the relevant jurisdiction.

Bigamy laws do not apply to couples in a de facto or cohabitation relationship or that enters such relationships when one is legally married. If the prior marriage is for any reason void, the couple is not married, and hence each party is free to marry another without falling foul of the bigamy laws.

Bigamy is a crime in most countries that recognize only monogamous marriages. When it occurs in this context occasionally neither the first nor second spouse is aware of the other, although the majority are involved in plural marriages. In countries that have bigamy laws, with a few exceptions (such as Egypt and Iran), consent from a prior spouse makes no difference to the legality of the second marriage, which is usually considered void.

Bigamy In India:

Marrying twice or bigamy is a criminal offence. Still it endures at all levels and in both country and urban groups to a little degree. Muslims are legitimately permitted to have up to four wives. Also, polyandry was a practice amongst the untouchables and numerous tribal social orders and a few groups of Kerala. Monogamy wins the conscience of a larger part all through India.

The provisions of the law which regulate bigamy:

Section 494 of the Indian Penal Code states that:
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.

Exception to this section is that it does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Section 495 Indian Penal Code states that:

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 be liable to fine.

The following table will provide us a quick preview as to provision of prosecution for bigamy and other allied offences with respect to man and woman.

Offence by man Offence by woman

Man can be prosecuted for bigamy. Woman can be prosecuted for bigamy:
  1. Man (married + unmarried) + sexual intercourse with wife of another = Man can be prosecuted for adultery.
  2. Woman (married + unmarried) + sexual intercourse with the husband of another = Woman cannot be prosecuted for adultery.
  3. Man (married) + sexual intercourse with an unmarried woman= No offence committed by man.
  4. Woman (married) + sexual intercourse with an unmarried man = Woman cannot be prosecuted for any offence.
  5. Man (unmarried) + sexual intercourse with woman (unmarried) = No sexual offence committed by man.
  6. Woman (unmarried) + sexual intercourse with unmarried man = Woman cannot be prosecuted for any offence.
However, inspite of the existence of the above provisions, first wives find that evidence of the second marriage is difficult (most of them are performed secretly or by token rituals like exchange of garlands in a temple) to come upon for criminal prosecution, for the courts demand hard proof. Though Section 494 of the Indian Penal Code (IPC) punishes bigamous husbands, if convicted, to a fine or seven years of imprisonment, or both, being a non-cognizable offence (except in Andhra Pradesh), it is ineffective.

Essential ingredients for constituting the offence of bigamy:

  1. Existence of a previous marriage: One of the essential ingredients of the offence of bigamy is the existence of a previously contracted marriage. It attaches criminality to the act of second marriage by a husband or by a wife who has a living wife or husband. The second marriage is void. It is, therefore, essential to establish the offence of bigamy that at the time of the second marriage, the person was already married. The first marriage should be subsisting at the time of the second marriage and should be a validly contracted one. If the first marriage is not a valid marriage, the second marriage does not amount to bigamy. The first husband or wife should be alive when the second marriage was contracted.
     
  2. Second Marriage has to be valid in itself: In order to attract the provisions of this section, not only the first marriage but also the second marriage should be a valid one. This means that all the necessary ceremonies required by the personal laws governing the parties to the marriage should have been duly performed.
     
  3. Second marriage to be Void solely by reason of First Husband or Wife Living: The offence of bigamy is made out only when the second marriage is rendered void by reason of its taking place during the life of the first wife or husband. It has no application to cases where a second marriage is permitted under the personal laws governing the parties.

When does marrying twice not amount as an offence?

1. Section 494 itself carves out two exceptions wherein the contracting of the second marriage will not be an offence. They are:
  1. When the first marriage has been declared void by a competent court: In the first circumstance stated in the exception, the previous marriage is not in subsistence in view of the fact that it had been declared void by a court and hence, one of the essential ingredients to constitute the offence of bigamy is absent, and
     
  2. When the former husband or wife has been continually absent for a period of over seven years and not heard of as being alive, provided that these facts are disclosed to the person with whom the second marriage is contracted.
The second circumstance envisages a situation wherein a person has been missing continuously for a period of over seven years. Under Section 108 of the Indian Evidence Act, 1872 when it is proved that a man has not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, there is a presumption that he is dead. The burden of proving that he is alive is on the person wanting to establish the same. The second exception to Section 494 is in recognition of this principle.

By virtue of presumption provided under S 108 of the Evidence Act, it may be safely concluded that a person who is missing for more than seven years, is presumed to be dead and when the other spouse contracts a second marriage, it follows that there is no husband or wife living at the time of the second marriage and hence, the offence of bigamy is not made out.

Therefore, bigamy shall not apply if the first husband or wife is dead, or the first marriage has been declared void by the Court of competent jurisdiction, or the first marriage has been dissolved by divorce, or the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.

When the second marriage is invalid: The factum of second marriage, with necessary ceremonies, thereof, needs to be proved. Where the essential ceremonies necessary to constitute a valid marriage are not performed, there is no marriage at all in the eyes of law. The mere keeping of a concubine or mistress is not sufficient to attract the penal consequences of this section as there is no marriage and the concubine does not enjoy the status of a wife.

When personal laws or customs governing the parties permit it: Second marriage by a Muslim, who is entitled to four wives, is not an offence under this section. Prior to the enactment of the Hindu Marriage Act, a Hindu man marry more than one wife. However, after the coming into force of the Hindu Marriage Act, the situation has changed. Section 17 of the Hindu Marriage Act makes a second marriage void. The effect of this provision is to make Section 494 of the Penal Code applicable to Hindus.

The Conversion Controversy: The law identified with monogamy under the HMA is brimming with genuine deficiencies and provisos, and joined with its procurements identified with marriage customs, gives in-assembled gadgets (the principal being change to Islam) for a simple shirking of the considerable number of outcomes of its infringement, while the non-cognizable IPC procurements force aggrieved first wives of all groups to quietly endure the tragedies.

It has thus recommended by the 227th report of the Law Commission of India in its report titled Preventing Bigamy via Conversion to Islam – A Proposal for Giving Statutory Effect to Supreme Court Rulings which was presented to the Ministry of Law and Justice, that a new section be inserted in the HMA to the effect that a married person governed by it cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law, and if such a marriage is contracted, it will be of no legal effect, and attract application of Sections 494 and 495 of the IPC.

The commission has recommended that similar provisions be inserted in the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act (DMMA) of 1939. In respect of the latter, it has been suggested that the proviso to Section 4 of the DMMA, saying that this would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith, be deleted.

Further, certain provisions should be added to the Special Marriage Act 1954 and offences relating to bigamy under the IPC sections should be made cognizable by necessary amendment of the Criminal Procedure Code (Cr.P.C).
A burning controversy is Hindu men converting to Islam, only for the purpose of contracting a second marriage, thereby surpassing the strict Hindu law which enforces monogamy.

Two major questions which have perplexed the judiciary are as follows:

  1. Whether by virtue of the conversion of the respective husbands to Islam, would the second marriage be a valid marriage?
  2. Whether such husbands would be guilty of the offence of bigamy under Section 494, IPC?

The answers have been provided in the judgment of Sarla Mudgal, President, Kalyani v. Union of India , AIR 1995 SC 1531 as under:
  1. One spouse, by changing his or her religious beliefs cannot forcefully enforce his or her newly acquired personal law on a party to whom it is entirely alien. Such a practice would be opposed to justice.
     
  2. The first marriage under the Hindu Marriage Act subsists even after the conversion. It is only a ground for divorce (Section 13(1)(ii)). It can be dissolved only by a decree of divorce granted under the Act.
     
  3. The wholesome effect of Section 11 Hindu Marriage Act and Section 17 Hindu Marriage is such that the fact that a marriage is void for reason that the person has married during the lifetime of his or her spouse, then they are punishable under Section 494 and 495, IPC, for bigamy.
     
  4. A second marriage cannot be said to be void per se after a husband has embraced Islam, it would be void with respect to the first wife who married him under the Hindu Law and which marriage continues to be governed by Hindu Marriage Act.
     
  5. In instances where one spouse remains a Hindu and the other converts to Islam, the court shall decide according to justice, equity and good conscience and there will not be any effect of personal laws. If the second marriage is held to be void, then it would attract the provisions of Section 494 IPC.

In short, when parties to a marriage get married under a particular personal law, the marriage will continue to be governed by the personal law under which they got married, irrespective of the fact that either of the spouses have converted to another religion. Hence, spouses cannot escape liability under Section 494, IPC, by resorting to conversion to Islam or any other religion. Mere conversion does not automatically dissolve the first marriage, and thereby doe not absolve the person from criminal liability for committing the offence of bigamy.


Is there any legal remedy for the second wives?

The social shame appended with being a second wife, the nonattendance of any lawful status to the relationship, and the gigantic torment of being swindled into the marriage are without a doubt greatly discouraging for a lady. Despite the fact that there is no acknowledgment given to a second wife, because of the legal understanding of existing law as talked about above, she may have a few shots of getting support. Without any unmistakable procurements under the law, her risks of guaranteeing her rights are to a great extent reliant on the carefulness of the judges. Even under the criminal law, it is greatly to demonstrate polygamy, as the marriage must be legitimately performed to demonstrate the offense of polygamy.

Normally these provisos in the law are misused by men to shield themselves in such cases perpetrator of the offence of bigamy to severe punishment if he or she has concealed the fact of his or her former marriage while contracting the second marriage. Additionally, complaint for cheating can be filed under section 415 of IPC in case the person hides the fact of first marriage.

Maintenance:

In Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu & Anr [1], it was held that
Validity of marriage will not be a ground for refusal of maintenance. Here, the appellant Pyla Mutyalamma alias Satyavathi was the second wife of respondent Pyla Suri Demudu, having married in a temple under Hindu rites in 1974. They had three children and after 25 years the husband deserted her. A trial court in Andhra Pradesh awarded Rs. 500 as maintenance and on appeal by the husband the Andhra Pradesh High court set aside the order holding that she being the second wife was not entitled for maintenance. Satyavathi appealed against this judgment.

The Supreme Court held that if the second wife was deserted by her husband, she will be entitled to get maintenance from him under Section 125 Cr.P.C., notwithstanding the validity of the marriage. Giving this ruling, a Bench of Justices H.S. Bedi and Gyan Sudha Misra said that in a case under Section 125 Cr.P.C. the Magistrate can take a prima facie view of the matter and it is not necessary for him to go into matrimonial disparity between the parties in detail in order to deny maintenance to the claimant wife.

Writing the judgment, Justice Sudha said that Section 125 Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled.

The Bench also said that the proof of marriage required for a proceeding under Section 125 of Cr.P.C. need not be as strong or conclusive as in a criminal proceeding for an offence under Section 494 Indian Penal Code, since the jurisdiction of the Magistrate under Section 125 Cr.P.C. being preventive in nature the magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the civil court.

The magistrate would not enter into complicated questions of law as to the validity of the marriage according to the sacrament element or personal law and the like, which are questions for determination by the civil court. If the evidence in a proceeding under Section 125 Cr.P.C raises a presumption that the applicant was the wife of the respondent [in this case] it would be sufficient for the magistrate to pass an order granting maintenance under the proceeding.

The Bench said under the law a second wife whose marriage was void was not entitled for maintenance. But the law also presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years, and when the man and woman are proved to have lived together as man and wife, the law will presume.

In the instant case, the Bench allowed her appeal and restored the trial courts’ order granting her Rs. 500 as maintenance. [2] Court has ruled that a woman with whom second marriage is performed is also entitled to drag the man to court under section 494 of the Indian Penal Code (IPC) which makes bigamy a criminal offence, punishable with a jail term of maximum seven years. To hold that a woman with whom second marriage is performed is not entitled to maintain a complaint under section 494 IPC though she suffers legal injuries would be height of perversity was held.

Here, a bench headed by Justice JM Panchal ordered the prosecution of an Andhra Pradesh policeman for bigamy. Rejecting the policeman’s contention that complaint of dowry harassment against him by the second woman was not maintainable because she was not his legally wedded wife in view of subsistence of his first marriage, the bench restored the charges under section 498A of IPC.

The section 494 of IPC is a gender neutral, but, generally it is men who are at the receiving end of this provision and it is the first wife who as an aggrieved person invokes the anti-bigamy law. Maintaining that section 494 is intended to achieve laudable object of monogamy, the bench said it does not restrict right of filing complaint to the first wife and there is no reason to read the said section in a restricted manner…

It was commented by senior advocate Geeta Luthra that the judgment explains the meaning of the phrase aggrieved person and also gives an alternative to many women who cannot take benefit of section 498A because of them being victims of an illegal/second marriage. [3]

What is the procedure to file a complaint under Section 494?

The individual wronged can record case of bigamy either in court or at the police station. The father of an oppressed wife can likewise make a complaint under area 494/495 of the Indian Penal Code. A request for pronouncing the second marriage as void can be recorded by the parties of second marriage and not the first spouse.

Is proof required for lodging complaints under bigamy law?

In the case of K. Neelaveni v. State Rep. By Insp. Of Police & Ors [4] ,the Supreme Court has held that while lodging a criminal complaint it is not necessary for the aggrieved party to prove that marriage ceremonies were performed as it is for the trial court to decide the veracity of the allegations.

The Madras High Court has also held that in order to maintain the charge under section 494 IPC, there should be evidence to show that essential ceremonies were performed at the time of alleged second marriage and such ceremonies and other requirements for a valid marriage have to be established by adducing evidence in the course of trial and a valid marriage between a man and woman cannot be presumed from the fact that a child was born out of their relationship.

The apex court gave the verdict while upholding the appeal of a woman K Neelavani, challenging a Madras High Court order quashing the charge sheet filed against her husband S K Siva Kumar under IPC Sections 406 (breach of trust) and 494 (bigamy-second marriage).

Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. Essential ceremonies of the marriage were gone into or not is a matter of trial, held by a bench of Justices D K Jain and C K Prasad.

What is the type and quantum of punishment prescribed for the offence?

Bigamy is a non-cognizable offence. It is bailable and compoundable with the permission of court if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, which may extend till 7 years or fine or both. In case the person charged of bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be punished with imprisonment of up to 10 years or fine or both. Such offence under section 495 is not compoundable.

Does attending a second marriage amount to abetting the same?

No, it does not. It is a settled law that mere participation in the second marriage would not ipso-facto makes the relatives or the participants liable for abetment to bigamy since abetment connotes an active suggestion or support to the commission of the crime. ruled Delhi High Court in Manju Verma and Ors. v. State & Anr. [5]

In Muthammal and Ors. v. Maruthathal [6] , it was held that:
Instigation must have reference to the thing that was done. By mere association of the accused persons in this case, who are charged for an offence of abetment and the principal offender in the absence of any material to show that there was an instigation by the petitioners or that there was any intention either in aiding or in commissioning the offence committed by the first accused, it cannot be said that they have committed an offence of abetment.

The accused persons can be charged and convicted for the offence of abetment where there is evidence to show such persons have instigated or otherwise abetted in the acts of the person who has actually committed the offence or the crime. In so far as the instant case is concerned, from the evidence, it cannot be said that the petitioner have committed an offence of abetment. As stated above, abetment is instigation to a person to do an act in a certain way or aid some other person in doing an act which is an offence.

In other words, it is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence. This was followed by the Delhi High Court in the aforementioned case.


Does this penal provision apply to tribals?

No, it does not. It was reported in the Hindu [7] that the Supreme Court has affirmed a Delhi High Court judgment that in the absence of a notification in terms of sub- section (2) of Section 2 of the Hindu Marriage Act 1955, no case for prosecution of a husband – a tribal (Santhal) – for bigamy under Section 494 of the Indian Penal Code was made out by the appellant-wife, also a tribal (Oraon), because the second marriage solemnised by him cannot be termed void either under the 1955 Act or any alleged custom having the force of law. (According to sub-section 2 of Section 2, the 1995 Act shall not apply to any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Centre directs otherwise in a gazette notification).

As the parties admittedly belong to the Scheduled Tribes within the meaning of clause (25) of Article 366, as notified by the Constitution (Scheduled Tribes) Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990 passed in terms of Article 342 and 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, a Bench said. Mr. Justice R.P. Sethi held that the trial magistrate and the High Court have rightly dismissed the complaint of the appellant.

The Bench, which included Mr. Justice K.T. Thomas noted that in order to prove that the second marriage was void, the appellant was under an obligation to show the existence of a `custom’ which made the marriage null and ineffectual, having no force of law or binding effect, incapable of being enforced in law or non-est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC.

The Bench, however, said the appellant is at liberty to get her right – (to maintenance, succession and other benefits as the legally wedded wife of the respondent) – established by way of civil proceedings in a competent court.

If any such proceedings are initiated, the same would be decided on their merits in accordance with the principles of the pleadings and proof, not being influenced by any of the observations made by the trial magistrate or the High Court.

The woman filed a criminal complaint in the court of the Chief Metropolitan Magistrate, New Delhi, stating her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs. But he solemnised a second marriage with another woman (accused 2). The wife relied upon a custom in the tribe which mandated monogamy as a rule.

It was conceded by the appellant that:
the parties to the petition are two tribals, who otherwise profess Hinduism, but their marriage being out of the purview of the Hindu Marriage Act, 1955 in the light of Section 2(2) of the 1955 Act, are thus governed only by their Santal customs and usage.

Is registration of marriage compulsory [8]?

Yes, in order to stop second marriages and child marriages, the registration of marriages is made compulsory as directions of Supreme Court. The registration of Hindu marriages is not compulsory. However, registration of one’s marriage provides proof of it for legal purposes and therefore we highly recommend it for women as a safety measure.

A Hindu marriage register is found in the Office of the Registrar of Marriages, usually located in District or Divisional court compounds. The Registrar is normally some type of magistrate. A Hindu marriage can also be registered under the Special Marriage Act, 1954 if both parties so desire. If that is done, the marriage is treated as a civil marriage governed by that Act from the date of registration.

What is effect of Hindu law of succession upon bigamy?

As per Hindu code, only the first wife is a legal heir of the husband while the second wife is not entitled to any share in the ancestral estate and, if the husband has died without leaving a will, even in his self-acquired property. Once the second marriage is declared null and void, the wife concerned cannot even claim maintenance as a matter of right.

In 2010, the Bombay High Court at Goa while ruled that a second wife marrying in good faith has a share in the estate of her husband and held that the first wife is entitled to half the share while the share of the second wife in the property of the husband is 1/8th. It concluded that a woman who marries a man in good faith when his previous marriage is in subsistence has the right to inheritance, the high court set about determining the shares of the first wife, the second wife and the children in the husband’s property.

The counsel of the second wife had relied on a case decided by the Coimbra High Court in Portugal in 1950. He pointed out that in such cases the first wife gets half the share, the second wife is entitled to 1/8th of the share and the remaining 3/8th is to be shared among the children from both marriages. He also referred to Article 1109 and Article 1235 of the Civil Code, 1867. The argument of the lawyer appearing on behalf of the first wife, who argued that the judgment of Coimbra High Court cannot have any persuasive value was rejected and Justice N A Britto observed that courts must accept any light from whatever source it comes. Little illumination is always good.

The court held that the explanation and illustrations given by Usgaonkar are correct and in consonance with Article 30 of the Family Laws of Goa, the high court of Bombay at Goa ordered that the share of the fist wife would be half, the second wife’s share would be 1/8th and the only child (a son from the first marriage) would have a 3/8th share in the estate. Interestingly, the Civil Code states that marriage, as per the custom of the country, consists in the communion between the spouses of all their properties.

That is half the property is held by the husband and the remaining half by the wife. Article 1109 of the Civil Code provides that half the properties held by the spouse who remarries, shall be excluded from the communion. Article 1235 provides that a man or a woman who remarries and has children or other descendants from a previous marriage, may not share with nor donate to the other spouse more than half of his/her assets at the time of the marriage [9].

In Vidyadhari & Ors v. Sukhrana Bai & Ors [10] , Sukhrana Bai deserted Sheetaldeen soon after their marriage. Thereafter Sheetaldeen married Vidyadhari and four children were born to them. After his death, Vidyadhari, who was his nominee, received pension and other benefits due to Sheetaldeen. However, both Sukhrana Bai and Vidyadhari filed applications claiming the succession certificate for his movable property. The trial court decreed in favour of the second wife. But on appeal, the Madhya Pradesh High Court reversed the finding and granted the certificate in favour of the first wife.

However, in 2008, the apex court allowed the appeal said she continued to live with Sheetaldeen as his wife for a long time. She enjoyed the confidence of Sheetaldeen, who nominated her for his Provident Fund, life cover scheme, pension, life insurance and other dues. Under such circumstances, she was preferable to the legally wedded wife, Sukharna Bai, who never stayed with Sheetaldeen as his wife but went to the extent of claiming the succession certificate to the exclusion of Sheetaldeen’s legal heirs. In granting the certificate, the court had to use its discretion where rival claims, as in this case, were made for the property of the deceased, the Bench pointed out.

The Supreme said that though they agreed with the High Court that Mrs. Bai was the only legitimate wife yet, they would choose to grant the certificate in favour of Mrs. Vidyadhari, who was his nominee and mother of his four children. The court also granted Sukharna Bai one-fifth share of the property besides the four children of Vidyadhari. Vidyadhari was not entitled to any share for herself and that she would have to protect Sukharna Bai’s share and hand it over to her was also observed.

The Supreme Court had held that children born of second marriage are entitled to a share in the property of their father though the second marriage itself is void. If a person marries a second time during the subsistence of his first marriage, children born of the second marriage will still be legitimate was observed by Bench consisting of Justices S.B. Sinha and V.S. Sirpurkar. Mr. Justice Sirpurkar said the law was clear that the second wife who was cited as the nominee by her husband to claim the benefits arising out of his employment could claim succession certificate in favour of her children. However, she would not be legally entitled to receive a share from her husband’s property. [11]

Can children born out of the second wedlock inherit father’s ancestral property?

Yes, they can. In Revanasiddappa v. Mallikarjun case [12] , Justices G.S. Singhvi and A.K. Ganguly ruled that children from a second wife had rights to their father’s ancestral property. Section 16(3) of the Hindu Marriage Act as amended, does not impose any restriction on the property right of Illegitimate Child except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral. [13]

Will bigamy laws be applicable to live-in relationships?

No, they will not be applicable. The supreme court of India in Kushboo case[14] virtually equated live –in relationship to marital relationship. [15] The Supreme Court opined that a man and woman living together without marriage cannot be construed as an offence which turned out to be an observation that could cheer votaries of pre-marital sex and live-in partners.
  • When two adult people want to live together what is the offence?
  • Does it amount to an offence?
Living together is not an offence. It cannot be an offence, a three judge bench of Chief Justice K.G. Balakrishnan, Deepak Verma and B.S. Chauhan observed:
The apex court had also said there was no law which prohibits live-in relationship or pre-marital sex.

In another case, the Supreme Court also said children born out of live-in are not illegitimate. [16] The Supreme Court has clarified that children born out of a live-in relationship, where the couple has lived together for a long time as husband and wife, could not be called illegitimate.

The live-in- relationship if continued for such a long time, cannot be termed in as ‘walk in and walk out’ relationship and there is a presumption of marriage between them.

The Supreme Court in 2004 in the Rameshchandra Daga v. Rameshwari Daga [17] case , upheld the maintenance rights of women in informal relationships or invalid marriages. In 2010, the apex court had held in Madan Mohan Singh vs Rajni Kant case said, The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence.

The same year, the court had in another judgment hinted at the legitimacy of children born out of such relations. It is evident that Section 16 of the Hindu Marriage Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object.

Section 16 of Hindu Mariage Act provides:

Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of the marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

In 2014, giving an important clarification on live-in relationships, the Supreme Court has said that if a man and woman lived like husband and wife for a long period and had children, the judiciary would presume that the two were married.

A bench of Justices B S Chauhan and J Chelameswar issued the clarification on a petition filed by advocate Uday Gupta, who had questioned certain sweeping observations made by the Madras high court while dealing with the issue of live-in relationships. Importantly, the SC said children born out of prolonged live-in relationships could not be termed illegitimate. Gupta had challenged the HC’s observation that:
a valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnized.

His counsel, M R Calla, sought deletion of the HC’s observations terming them as untenable in law. He apprehended that these remarks could demolish the very institution of marriage. The bench went through the judgment and said the HC’s observations could not be construed as a precedent for other cases and would be confined to the case in which these were made.

Justices Chauhan and Chelameswar said:

In fact, what the HC wanted to say is that if a man and woman are living together for a long time as husband and wife, though never married, there would a presumption of marriage and their children could not be called illegitimate.

These cases virtually encourage relationship outside marriage which has created confusion in the minds of people and the demarcation between marriage and live-in relationships have got blurred. The law of bigamy is not applicable to live- in relationship as there is no legally contracted marriage. In order to prove offence of bigamy, there should ample evidence to prove they have contracted second marriage without nullifying the first marriage.

Is Section 489A of Indian Penal Code, 1860 applicable to second wife?

In Subash Babu v. State Of A.P.& Anr [18] , it was contended by the petitioner’s counsel that marriage of the accused with the victim in this case who had stated to be second wife of the accused, was void ab initio and therefore she could not claim herself to be a legally wedded wife who can invoke offence punishable under Section 498A IPC.

In Shivcharan Lal Verma v. State of M.P [19] , it was held by the Supreme Court that when marriage of the accused with the deceased was during subsistence of valid marriage between the accused and his first wife, was null and void, conviction of the accused for offence punishable under Section 498A IPC for harassing the deceased who committed suicide is not sustainable in law.

In Reema Aggarwal v. Anupam [20] , the Supreme Court observed that the question as to who would be covered by the expression ‘husband’ for attracting Section 498A does present problems. Etymologically, in terms of the definition of husband and marriage as given in the various Law Lexicons and dictionaries – the existence of a valid marriage may appear to be a sine quo non for applying a penal provision. Admittedly, the victim in this case was the second wife of the petitioner who is said to have married her by suppressing the fact of his first wife living.

Therefore, prima facie marriage between the petitioner and the second respondent is void and therefore, it cannot be said that the alleged harassment or cruelty meted out by the petitioner towards her attracts penal provision under Section 498A I.P.C. Thus, the petitioner can get limited relief in this petition to the extent of offence punishable under Section 498A IPC only
[21] .

In 2013, the Kerala High Court held that a legally valid marriage is necessary to sustain complaints alleging cruelty by husband or relatives. Justice B Kemal Pasha gave the ruling while considering a petition filed by a mother-in-law, Suprabha Dharan of Parippally in Kollam, seeking to quash a criminal case against her based on her daughter-in-law’s complaint.

The police had registered a criminal case against the husband and in-laws based on the complaint. In the petition filed through advocate Siby Mathew, the mother-in-law contended that her son’s marriage with another woman was subsisting during the period in which the alleged acts of cruelty took place. Her son got divorced from his first wife only on April 30, 2003, and then married this woman on October 14, 2003, as per Special Marriage Act. The alleged acts of cruelty took place prior to registration of marriage.

A valid marriage is a necessary ingredient to invite an offence under Section 498A of IPC. As her son’s first marriage was existing, his relationship with the woman who complained could not create any valid marriage, the mother-in-law’s counsel pointed out. Opposing this, the complainant’s counsel argued that a valid marriage is not required to invite the offence under Section 498A, whereas a long collaboration in the form of marriage is sufficient.

To decide the case, the court relied on a 2002 decision of the Supreme Court in Shivcharan Lal Verma v. State of Madhya Pradesh [22] . It was held by a three-member bench that a second marriage will be null and void on account of the subsistence of the earlier valid marriage. Quashing the case against the mother-in-law, the high court held that an offence under Section 498A cannot be included in the case for any period prior to October 14, 2003, when the marriage was registered. [23]

End Notes:
  1. (2011) 12 SCC 189
  2. https://www.thehindu.com/todays-paper/deserted-second-wife-entitled-to-maintenance-from-husband-court/article2402387.ece.
  3. https://www.hindustantimes.com/delhi/second-wife-can-also-sue-husband-for-bigamy-says-sc/story-8p5vdRVdbXaaGzKYVYSIvJ.html.
  4. AIR 2010 SC 3191.
  5. 2002 (3) AWC 2597.
  6. 1981 Crl.L.J 833.
  7. https://blog.ipleaders.in/bigamy-marrying-twice-crime-india/
  8. https://blog.ipleaders.in/bigamy-marrying-twice-crime-india/
  9. https://timesofindia.indiatimes.com/city/goa/Second-wifes-share-in-property-is-1/8th/articleshow/5833851.cms.
  10. 2008 (1) RCR (Civil) 900
  11. https://www.thehindu.com/todays-paper/tp-national/Second-wifersquos-children-not-herself-entitled-to-property-apex-court/article15155341.ece.
  12. (2011) 5 MLJ 392 (SC)
  13. https://www.nipponindiamf.com/FundsAndPerformance/Pages/NipponIndia-Tax-Saver-ELSS-Fund.aspx?
  14. S. Khushboo v. Kanniammal & Anr (2010) 5 SCC 600
  15. https://www.thehindu.com/news/national/Live-in-relationship-pre-marital-sex-not-an-offence-Supreme-Court/article16598872.ece.
  16. https://www.thehindu.com/todays-paper/tp-national/child-born-out-of-livein-relationship-not-illegitimate-sc/article5945690.ece.
  17. II (2001) DMC 230
  18. 2010 (2) ALT (Cri) 56
  19. I (2007) DMC 120 SC
  20. (2004) 3 SCC 199
  21. https://indiankanoon.org/doc/1342950/.
  22. I (2007) DMC 120 SC
  23. https://timesofindia.indiatimes.com/city/kochi/HC-Valid-marriage-must-for-complaints-of-cruelty-by-in-laws/articleshow/21381864.cms.

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