Bigamy is the act of marrying someone while already having been legally married to someone else who is alive. A person cannot legally marry someone when they already have a spouse alive who is still legally married to them and such a second marriage will be declared void ab initio which means null or invalid from the very beginning. Second marriage while a spouse is alive and while still being because Indian culture is pro-monogamy for obvious reasons.
Because in a society where a man is allowed have multiple wives or a woman is allowed to have multiple husbands at the same time then it will create tensions when it comes to matters concerning inheritance, rights or financial stability and it can result in family disputes arising due to jealousy or hatred and such a family can very rarely thrive happily in the society because unlike other mammals, human beings cannot practice bigamy without having to face these dreadful consequences. It is therefore, important for everyone in the Hindu community to have only one spouse for the sake of their legally wedded spouse as well as for their legitimate children.
It is a well known fact that Hindu law does not permit bigamy and anyone who takes another spouse while still being legally married to someone else then they will be punished when the aggrieved spouse files a complaint. Polygamy is the practice of marrying multiple spouses, when a man has more than one wife then it is called Polygyny and when a woman has more than one husband then it is called Polyandry. In Muslim law, polygamy for men is not abolished in India and they can have four wives without getting punished for bigamy but a Muslim woman can be punished for bigamy if she marries again while still being married to her first husband.
Traditionally people from all religions practiced polygamy but polyandry was a rare phenomenon where a woman can have multiple husbands at the same time and it was only practiced by a few tribes or remote communities because their custom permitted them. Even though polygamy was practised by many cultures and religions throughout history, it is no longer considered an ideal form marital relationship. In the Indian subcontinent, polygamy or particularly polygyny was a prevalent practise in many sections of the society in the ancient and medieval periods but this practise eventually vanished from these communities and now it's considered immoral and unethical.
Bigamy In Hindu Marriage Act, 1955
Section 17 of the Hindu Marriage Act, 1955 lays down the fact that Bigamy is illegal in India and any Hindu who commits the offense of bigamy will be punished accordingly. The provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly in deciding the punishment for bigamy.
Any Marriage solemnized between two Hindus is void if at the time of the marriage, either or both of them had a husband or wife living who are still legally to them at the time of solemnizing the second marriage.
Monogamy is considered as the ideal form of marriage, Hinduism considers marriage as the sacramental union of one man with one woman. The Vedas consider monogamy as the highest form of marital union.
However, before the enactment of The Hindu Marriage Act, 1955 was enacted, A Hindu man could marry more than one woman at a time and this practice was prevalent among the rich and aristocratic Hindus, Kings, village headmen and rich merchants or Zamindars were the ones who usually had multiple wives at the same time. Polyandry, which is the type of marriage where a woman is married to more than one husband was also practised by certain tribal groups and castes in both southern and northern India.
Polyandry among these communities was prevalent due to the desire to preserve unity among brothers, to preserve the family property and also to combat economic difficulties.
After the enactment of Hindu Marriage Act, 1955, both polygynous and polyandrous marriages have been abolished for Hindus as well as for Jains, Sikhs and Buddhists who are also governed by the Hindu law. Christians, Parsis and Jews who are not governed by the Hindu law are also not allowed to commit bigamy.
Essential Factors To Constitute Bigamy
- Existence of a previous marriage is the essential factor in constituting
Bigamy. If it is proved that either of the party to the marriage in question
has previously contracted marriage which is still subsisting at the time of
the second marriage and if the husband or wife from previous marriage
is still alive then the bigamy will constitute an offence against marriage
as well as a criminal offence. If the first marriage was a legally
valid marriage the second marriage would be void and if the first marriage
was not legally valid then the second marriage would not amount to bigamy.
- In order to prove that the second marriage constituted bigamy, it is
also necessary that the second marriage was also legally valid in itself
after the performance of all the necessary rituals required by the
Hindu law in the marriage ceremony because if it is not a legally valid
marriage then there is no bigamy because there was no second marriage.
- The first husband or wife from the previous marriage should be alive and
should still be the legally wedded spouse of the party involved in the
second marriage while the second marriage takes place.
- If the first marriage was declared void by a competent jurisdiction or
if the previous marriage.
- If the first husband or wife have been continually absent from the life
of the party contracting the second marriage for a space of seven years then
the second marriage would not constitute bigamy even though the spouse from
previous marriage is still alive when the second marriage takes place given
that he or she at the time of the second marriage has informed the party of
second marriage about their first marriage.
- The first marriage has been dissolved by divorce.
Religious Conversion For Of Second Marriage:
Converting to a religion where bigamy is legally permissible for the purpose of contracting a second marriage is against the law and such a second marriage is void.
In Sarla Mugdal & others. v. Union of India
, The Court held that the first marriage would have to be dissolved under the Hindu Marriage Act, 1955 in order for him to marry again. Therefore, the first marriage is still legally valid under the Hindu law and the second marriage which was solemnized after his conversion to Islam would be void and the man will be punished bigamy under section 49 of the Indian Penal Code, 1860.
Rights Of The Second Spouse:
When someone commits bigamy then the second spouse cannot really claim any rights because what they have is a marriage that is void and therefore, it has no legal value. Because the second marriage is invalid and so the second spouse will not be entitled to receive any maintenance or divorce settlement because without a valid marriage there can be no divorce. However, the second wife may have some chances of getting maintenance but because there are no clear provisions under law which lays down the rights of second wife, such chances completely depend on the discretion of the judges.
On Matters Of Succession And Inheritance:
As per the Hindu law, only the first wife is entitled to all the rights of a wife and only first wife is the legal heir of the husband and the second wife is not entitled to inherit any ancestral or self-acquired property if the husband died without leaving a will. Once the second marriage has been declared void by a competent jurisdiction, the second wife cannot even claim maintenance as a matter of right because maintenance is provided only after divorce and when the marriage is declared void ab initio then there can be no divorce because there never existed a legally valid marriage in the first place. However, the children born out of wedlock have the right to inherit from their father's ancestral property. In Revanasidappa v. Mallikarjun, Justices G.S Singhvi and A.K Ganguly held that children born to the second wife also have a claim over their father's ancestral property.
Position Of Bigamy In Live-In Relationships:
When a married person cohabits with an unmarried person for a long time, then it will not constitute the offence of bigamy. The Supreme Court has held that live-in relationship which have continued for a long time cannot be termed in as walk in and walk out relationship as there is a presumption of marriage between them. It has also held that children born out of live-in relationships are not illegitimate and are entitled to inherit properties from their parents.
The law of bigamy is not applicable when it comes to live-in relationships because there were no legally contracted marriage or performance of any marriage rituals. Bigamy can be proved only when there is ample evidence that the party contracted a second marriage without nullifying their first marriage.
Is section 498A of Indian Penal Code, 1860 applicable to the second wife?
The section 498 A of Indian Penal Code, 1860 will not be applicable to second wife since the second a legally wedded wife is not a wife in the eyes of law.
Priya Bala Ghosh V. Suresh Chandra Ghosh
( 2 S.C.R. 837)
In this case, the plaintiff had filed a complaint of bigamy against her husband because he had solemnized another marriage during the subsistence of her own marriage. However, with regard to the second marriage it was found out that there was no marriage rituals required under Hindu law to contract a marriage performed in order to call it solemnization of marriage by law. It was therefore held that the plaintiff has to prove that the second marriage is a valid marriage, performed according to the rites and rituals of the personal law.
Naurang Singh v. Sapla Devi
(AIR 1968 All. 1958)
The petitioner had rejected the claims of maintenance by his first wife on the basis that the respondent was not his legally wedded wife. The petitioner also had a second wife and the second marriage was contracted while the first marriage was subsisting and he also had a child with his first wife. It was held that he must provide maintenance to his first wife and child.
Lingari Obulamma v. Venkata Reddy
(AIR1979 SC 848)
In this case it was observed that in order to prove bigamy, the first wife not only has to prove that she is the lawfully wedded wife of the accused but also that the accused married the second time which was also valid in itself by the performance of necessary rituals and if the factum of second marriage has not been proved by the plaintiff then the charge of bigamy fails.