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Bigamy As An Offense In India

The Indian Penal Code[1] declares for a concept commonly known in English law as Bigamy as a punishable offense. The term bigamy is technically not one that is recognized in any of the laws in India. But, it has been defined generally, as the act of marrying one person while legally married to another [2] and as a second marriage by a person during the lifetime of the partner and during the subsistence of the first marriage[3]. Essentially, bigamy is not only a ground for divorce. It is also an offense and naturally makes the marriage void, hence making it unnecessary for parties to file for a divorce. Though in the face of it, it seems like Bigamy is an offense that is prohibited throughout the country for each and everybody, that does not seem to be the case.

The personal laws of the people in the country carry more significance than the Penal Code does. Therefore, though the Penal law strictly prohibits Bigamy, if the personal law allows it, it will not be punishable. For example, though Bigamy is an offense for Hindus (as collectively defined in the Hindu Marriage Act[4]), Christians and Parsis. But since the Islamic personal laws allow bigamy, it is not an offense for the Muslims. However, Polyandry is strictly prohibited.

The fundamental reasons behind Bigamy being a punishable offense is the societal stigma attached to not being the only wife, or much worse, the second wife, the absence of legal status to the relationship, which is the primary reason and perk behind two people getting married and the horrendous suffering of the wife due to the adulterous relationship of her husband. Further, the second wife and her children, both male and female, will get absolutely no recognition, especially with regard to succession and property.

History
The history of Bigamy-based laws and the existence of Bigamy dates back to the Vedic times. Monogamy has always been the rule right from then, but it has always subsisted with the exception of polygamy, which is basically where the husband in the marriage has more than two wives living.[5]

The Manusmriti, which is one of the major sources of the Hindu Marriage Act, 1955, has texts that clearly imply that when a wife was barren, diseased, or vicious that she could be superseded, a second marriage was valid. But, the first, matrimonially wedded wife would alone be considered as a wife, and not the latter woman. In a more perspicuous sense, the first wife had primacy over the other and her first-born son, over the husbands other sons. The other wives were merely considered as a superior class of concubines.[6] But over time, the courts during the British rule adjudicated that a Hindu male could marry another woman during the subsistence of his first marriage, without the consent of his wife or any justification, whatsoever.

But later on, several provisions came about, that made Bigamy an offense. These were mostly personal laws. Bombay Prevention of Hindu Bigamous Marriage Act[7] and the Madras (Bombay Prevention and Divorce) Act[8], were passed in order to ensure that men who committed the act of bigamy, would be punished as under this section, in Bombay and Madras, respectively. Parsi Marriage and Divorce Act[9], which is specifically meant for the Parsis in India, also strictly prohibited polygamy and made it punishable.

The Special Marriage Act[10] and its amended provisions of 1923, also brought about laws that prohibited bigamy, just as far as the marriage was solemnized as per the provisions and conditions of the Act. The Hindu Marriage Act, 1955, taking its inspiration and thought from the Manusmriti, makes monogamy the rule for all Hindus, Buddhists, Jains, and Sikhs. If a Hindu man marries another woman when his first wife exists, it shall attract Section 494[11], as per the Act, in order to determine the punishment.

But unfortunately, Muslim laws though they do not recognize Polyandry, do allow Polygamy as per their personal laws. The Shariat Act[12] refers to the Sharia law as the law of the land for the Muslims. Muslims are governed by whatever is specified in the Quran, which states that a man can marry up to four women at the same time, only if he can take care of them. Therefore, currently, all religions and their personal laws, except Islam, prohibit bigamy.

Grounds Available For Divorce

Apart from bigamy being ground for divorce, there are a few grounds that can be resorted to, in order to file for a divorce.
They are:
Under Hindu Law: Section 13 of the Hindu Marriage Act, 1955 discusses the grounds available to Hindus for divorce.
They are:
  1. Adultery: Section 13(1)(i) – If either of the spouses engages in sexual intercourse with a man or a woman outside of their marriage i.e. with someone who is not their spouse, it shall be a ground for divorce for the other spouse.
     
  2. Cruelty: Section 13(1) (Ia) – If either one of the spouses treats the other with cruelty, both physical and mental, it would serve as a ground for divorce. Physical cruelty includes beating or causing any bodily injury, while mental cruelty includes any sort of mental torture that eventually affects the health of a person.
     
  3. Desertion: Section 13(ib) - When either of the spouses deserts their respective spouse for a specific period without the others knowledge or consent, it is said to be desertion. In this case, it is for less than 2 years.
     
  4. Conversion: Section 13(ii) - If either of the parties converts to another religion without their partners consent, it shall be a ground for divorce.
     
  5. Insanity: Section 13(iii) - If either of the parties suffers from medical insanity or unsound mind, the other spouse can file for divorce on that ground.
     
  6. Leprosy: Section 13(iv) – If either of the parties suffers from leprosy, it is a ground for divorce.
     
  7. Venereal diseases: Section 13(v) – If either of the parties suffers from a venereal disease such as, say, AIDS, it can be a ground for divorce.
     
  8. Renunciation: Section 13(vi) – When either of the spouses decides to renounce the world and possibly walk the path of god, it shall be a ground for divorce.
     
  9. Presumption of Death: Section 13(vii) – When the family and friends of either of the spouses do not hear from them for a time period of seven years, they are presumed to be dead, hence making it a ground for divorce.
     
  10. Mutual Consent: When either of the parties does not resume cohabitation or if there has been no restitution of conjugal rights, the divorce can be granted to the parties through mutual consent.
     
  11. Husband has been charged for rape, sodomy or bestiality: Section 13(2)(ii) – If the husband has been charged for any of the aforementioned offenses, the wife has the right to file for divorce for the dissolution of their marriage.

Christian Law:

The grounds for divorce for Christians are similar to those of the Hindus as mentioned above, as per the Indian Divorce Act.[16] They are: Conversion, bigamy, adultery, when a husband commits, rape, sodomy or bestiality, desertion, and cruelty.

Muslim Law:

The Dissolution of Muslim Marriages Act[17] describes the various grounds for divorce for Muslims.
  1. When the husbands whereabouts could not be identified for four years.
  2. When the husband has neglected or has failed to provide for her maintenance for a period of two years.
  3. That a husband has been sentenced to seven years imprisonment or more
  4. When the husband has refused to meet his marital obligations for a period of three years, without a fair purpose.
  5. When the husband was impotent at the time of the marriage.
  6. When the husband had been insane for a time period of 2 years or is suffering from leprosy or virulent venereal disease.[18]
  7. When she, having been given in marriage by her father or other guardians before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated.[19]
  8. When the husband treats her with cruelty.

Bigamy As A Ground For Divorce – Present Day

As mentioned previously, Bigamy is currently a punishable offense for all religions, except for Islam or Mohammedans. The Indian Penal Code and the personal laws are all gender-neutral when it comes to the penalization for the existence of another spouse during the existence of the first.

(i) Essential Elements for Bigamy:

There are a few essential ingredients for the offense of bigamy to subsist in the first place.

1. The first element is that the spouses must have entered into a valid marriage before the accused entered into the apparent bigamous marriage. The indictment shall not prevail if the first marriage that the parties entered into, was a void marriage in the first place. In such cases, the second marriage shall prevail.

The validity of the marriage essentially depends upon two things, namely:
  1. the laws of the country in which the marriage was performed and
  2. the ceremonies that are to be fulfilled necessarily, according to the customs of the particular community of the couple.[20]
For the Hindus, Buddhists, Sikhs and Jains, the Hindu Marriage Act[21] shall determine the ceremonies that are to be performed. For the Christians, it is the Indian Christian Marriage Act[22], while for the Parsis it is the Parsi Marriage and Divorce Act[23]. For the Mohammedans and Jews, their personal laws shall apply.

The Special Marriage Act shall apply for marriages that do not fall under the aforementioned categories. Specifically, in the case of the Hindu Marriage Act, Section 5 (i)[24] states a condition for a valid marriage is that neither party has a spouse living at the time of marriage.

Section 11[25] declares the fact that bigamous marriages are void, while Section 17[26] establishes the punishment for a bigamous marriage. The word solemnized in the section emphasizes on the necessity of ceremonies to be performed for the validity of the marriage. Section 60[27] of the Christian Marriage Act declares that neither of the parties must have a spouse living during the time of their marriage.

2. The second element is - the husband must have married again. The second marriage is the primary essential element. It is this condition, that constitutes the offense in the first place. If the indictment of bigamy is to seek for, then it is essential for the nature of the second marriage to be such that, in case the first marriage had not existed, the second marriage should prevail. In other words, the marriage must be valid according to the personal laws of the communities.

Though there is a necessity for the first marriage to be valid both as per the law of the country and the ceremonies and customs, it is only required for the second marriage to be valid with respect to the ceremonies, in order for it to be a bigamous, hence void marriage.

In the case of Payari v. Faqir Chand Alakha[28], the courts held that indictment for the offense of bigamy does not require that the second marriage with the person concerned must otherwise be valid according to law.

But, the validity of the form of marriage is required in the case of both the marriages where, therefore, either of the two marriages is found to be not duly solemnized, the position would be that in the eyes of law, there is only one legal and valid marriage making the charge of bigamy unsustainable.[29]

Also, a mere keeping of a concubine or mistress is not sufficient for the relationship to constitute bigamy.[30] Unless there is adequate evidence of the performance of the ceremonies required by the respective communities, no bigamy shall subsist.[31] [32]Sandhiya Devi v. State of Uttar Pradesh, a test to determine if the marriage was bigamous, was established.

The test was:
  1. will the wife, if the former wife were not living, be entitled to claim maintenance as a married wife and will the children, born of the union, be deemed born in or out of wedlock?
If this was satisfied, it was adjudicated as a bigamous marriage. The cohabitation of the couple after the husbands second marriage is not essential to establish bigamy.[33]

3. The third element is that the first marriage must subsist during the time of the second marriage. In other words, if the prior marriage was dissolved, as by divorce or annulment, before the second took place, the offense of bigamy cannot be indicted. Also, the first wife must be alive during the time of the second marriage. It is also necessary for the first marriage to not be a void marriage, primarily. The question of mens rea comes into the picture as for this element.

Though Section 494[34] and the respective personal laws do not necessarily elucidate on the term mens rea, intention or knowledge, it has been said that mens rea is an essential ingredient for the indictment of the offense of bigamy.[35]

In the case Sankaran Sukumaran v. Krishnan Saraswathy & Another[36], the accused was of the impression that her husband had died, due to which she remarried, but she was mistaken. So the intent to commit bigamy was hence negative. If a person charged with bigamy believed that he was legally free to marry again it cannot be said that the crime was committed either intentionally or recklessly and the question whether the belief was unreasonable is irrelevant.[37]

4. The fourth element, as discussed previously, is that the spouse must be living at the time of the second marriage.

5. The fifth element, is that both marriages, the first and the second, must be valid marriages. If either of the marriages is void, then it is no marriage in the eyes of the law. It is crucial for both marriages to be solemnized according to the respective traditions and ceremonies of the communities. Unless these ceremonies are performed satisfactorily, the marriage cannot be considered a valid one. One such example, is the saptapati, as required in most of the Hindu customs.

Another example would be the Ijab-e-Qubool for the Mohammedans, where the bride and groom have to say Qubool Hai three times to officiate the ceremony. In the case of Satya Devi v. Khem Chand[38], the wife filed a case against her husband for bigamy and cruelty. But unfortunately, due to the fact that she failed to prove that her marriage was in accordance with the law, the second marriage remained valid, and hers, void. Therefore, the case was dismissed.

(ii) Section 494 and its exceptions:

Though Section 494[39] elucidates on the fact that neither of the partners must have a spouse living at the time of their marriage, there are a few exceptions to it. The first one is that the partner shall not be indicted for bigamy if the first marriage had been declared void by the courts.

The second one is when either of the partners spouses have been absconding for over 7 years. If either of the spouses has the means of identifying the whereabouts or establishing a connection with their spouse, but fail to do so and get married again, they are said to have committed the offense of bigamy[40] Another exception to this section, though not explicitly mentioned in the Indian Penal Code, is the death of the first wife.[41] This has been adopted from the English Law.

(iii) Conversion and Bigamy:

In the case of Hindus, the apostasy of one of the spouses does not naturally dissolve the marriage, ipso facto.[42] However, currently, if one of the parties, especially the husband converts from Hinduism to Islam in order to profess and practice bigamy or polygamy, even, shall be declared void.

This was further enshrined in the landmark case Sarla Mudgal v. Union of India[43], where it was held that the second marriage of a Hindu husband after converting to Islam is violative of justice, equity and good conscience and that such marriages shall be declared void and bigamous, hence attracting Section 494[44], which is the punishment under Section 17.[45] The courts emphasized the fact that the object or intention of Islam was not to encourage the Hindu husbands to convert to Islam solely for the purpose of evading their own personal law by marrying again.

They also held that:
the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with the law.

In another landmark judgment Lily Thomas v Union of India[46], the petitioners expressed apprehension over the Sarla Mudgal[47], the judgment which adjudicated that men having married again after their conversion to Islam under the Muslim law shall be liable for bigamy without any further proof.

The petitioners in the aforementioned case contended that this judgment was in violation of fundamental rights, specifically Article 25[48], and that under Section 494, it is a legal necessity to prove all the elements of the offense without which conviction cannot be done. Elements such as the validity of both the marriages, the ceremonies being duly performed, and so on. But the courts held that the contention was far-fetched, and that contention of the second marriage after conversion declared void being violative of Article 25 of the Constitution, demonstrates the ignorance about the tenets of Islam and its teachings.

When the question of whether an Indian Christian could convert to Mohammedanism and get married again to a Muslim woman arose, the courts, in the case Datta v. Sen[49], held that once they had converted to Mohammedanism, they had basically renounced all other religions, so Muslim law would be the only one applicable to them, with respect to marriage. The courts quoted, In our view, as he was entitled to contract this marriage under the Mohammedan law, it must be held to be a valid marriage unless there is some statute which invalidates it.

Conclusion
Bigamy is essentially an offense in India, as under Section 494 of the Indian Penal Code. But the situation in India technically differs from the practice in England, where monogamy is the universal and solitary practice for all marriages. In India, the criminality or indictment for the second or subsequent marriage depends upon the respective personal laws, customs, and practices of the communities.

Though the Penal Code criminalizes and punishes for the offense of bigamy, it is the personal laws that essentially decide whether it is awful for the community or not. If the personal law allows the practice, it is lawful for that particular community, like for Mohammedans. Second marriage, where it is prohibited by law, in effect amounts to disowning the first marriage.

The laws that prohibit bigamy exists to discourage the practice and to ensure that the first wife is never disowned. However, it has been contended in the courts[50] that if the husband is sent to jail, the possibility of the couple in the first marriage to ever live together, is tarnished.

But the fact that the husband has committed an offense and that if he is not punished for it, the offense will be nullified altogether, must be considered, hence validating the punishment for the offense. It has also been put forth in the cases of Sarla Mudgal[51] and Lily Thomas[52] that a uniform civil code for all castes and religions must exist with respect to bigamy.

If the laws were uniform, there would be no contradictions in the practice, and there would be no violation of Article 25[53] and Article 26.[54] The ruling, that even when a married non-Muslim converts to Islam, he cannot contract another marriage without first having his first marriage dissolved is definitely in compliance with the letter and spirit of Islamic law on bigamy.

The practice of marrying outside marriages is a gender-neutral practice. Nonetheless, since bigamy is the offense in question, it is crucial to implement a uniform civil code as recommended by the Malimath Committee, in order to curb the offense of bigamy. [55]

End-Notes:
  1. Section 494, Indian Penal Code, 1860.
  2. Whartons Concise Law Dictionary, 114, Fifteenth Edition (Concise) 2009.
  3. K.J. Aiyers Judicial Dictionary, 215, Fifteenth Edition, 2011.
  4. Hindu Marriage Act, 1955.
  5. Indian Concepts on Sexuality, Kaustav Chakraborty, Rajarshi Guha Thakurata, Indian J Psychiatry, January 2013; 55 (Suppl 2) pp. 250–255.
  6. Promiscuity, Polygyny, and the Power of Revenge, Melissa Crouch, Asian Journal of Law and Society, Vol 3, Issue 1, May 2016, pp. 85-104.
  7. Bombay Prevention of Hindu Bigamous Marriage Act, 1946.
  8. Madras (Bombay Prevention and Divorce) Act, 1949
  9. Parsi Marriage and Divorce Act, 1936
  10. The Special Marriage Act, of 1872
  11. Supra 1
  12. The Shariat Act, 1937
  13. Indian Divorce Act, 1869.
  14. The Dissolution of Muslim Marriages Act, 1939
  15. Menski, Werner F. "South Asian Muslim law today: an overview." Sharqiyyat ,1997, pp.16-36.
  16. Subramanian, Narendra. "Legal change and gender inequality: Changes in Muslim family law in India." Law & Social Inquiry, 2008, pp. 631-672.
  17. Dommaraju, Premchand. "Divorce and separation in India." Population and Development Review (2016): pp. 195-223.
  18. Supra 4
  19. Indian Christian Marriage Act, 1872
  20. Parsi Marriage and Divorce Act, 1936
  21. Section 5, Hindu Marriage Act, 1955 - Conditions for a Hindu marriage. �A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
    (i) neither party has a spouse living at the time of the marriage
  22. Section 11, Hindu Marriage Act, 1955 - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses
    (i), (iv) and (v) of section 5.
  23. Section 17, Hindu Marriage Act, 1955 - Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.
  24. Section 60, Indian Christian Marriage Act, 1872 - Every marriage between 1[Indian] Christians applying for a certificate, shall, without the preliminary notice required under Part III, be certified under this Part, if the following conditions are fulfilled, and not otherwise: (2) neither of the persons intending to be married shall have a wife or husband still living;
  25. AIR 1961 Punj 167, (1961) 1 Cri. LJ 549.
  26. Modi Bala Krishna Ramaraju v. Bodi Thimpathamma, 1975 Cri.L.J. 208, 211, 1973 Mad LJ (cr) 740.
  27. Mina Dei v. Abdhu Biswas 30 Cut LT 294, 1947 All WR (Supp)) 33.
  28. Ratnakar Nanda v. Ramesh Kumar, ILR 1963 Cut 464.
  29. Sandhiya Devi v. State of Uttar Pradesh, 1974 All CR Cas 341.
  30. Pits v. State, 95 AC. 706
  31. Supra 1
  32. Sankaran Sukumaran v. Krishnan Saraswathy & Another 1984 Cri.LJ 317 (Ker).
  33. ibid
  34. Kouch Muhammad Kunsu Ismail v. Mohammad Kadeja Umma, AIR 1959 Ker. 151 at 153-154: 1958 Ker.
  35. 2013 (5) RCR (Criminal) 812 (H.P.) (D.B.).
  36. Supra 1
  37. Must Muhammad Nissa (1899) PR No. 1 of 1900.
  38. Tulson (1889) 23 QBD 168.
  39. Raveya Bibi v. Anil Kumar (1948) 2 Cal 119.
  40. (1995) 3 SCC 635
  41. Supra 1
  42. Supra 26
  43. (2000) 6 SCC 224
  44. Supra 38
  45. Article 25, Constitution of India, 1950 - (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
  46. ILR (1939) 2 Cal. 12.
  47. Sindhiya Devi, 1974 Cri.LJ 1403 (All)
  48. Supra 43
  49. Supra 46
  50. Supra 48
  51. Article 25, Constitution of India, 1850 - Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:
    (a) to establish and maintain institutions for religious and charitable purposes;
    (b) to manage its own affairs in matters of religion.
  52. Committee on Reforms of Criminal Justice System Government of India, Ministry of Home Affairs Report, Volume 1, March 2003.

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