Vice of Bigamy and Indian Penal Code_Ramifications of an Archaic Law (389-399)

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VICE OF BIGAMY AND INDIAN PENAL CODE : RAMIFICATIONS

OF AN ARCHAIC LAW*

I Bigamy in Indian law

IN TH E Ind ian legal tradition the question of number of spouses a man or

woman can have was, initially, in the exclusive domain of religion. Rules

in this regard were found in the

religio-legal

literature of various communi

ties.

Hindu, Buddhist and Jain

shastras

of varying periods in the Indian

legal history, have been replete with dictates, postulates and tenets relating

to marriage and its discipline—including the question of permissible number

of spouses. Islamic law, introduced in this country over a thousand years

ago, also incorporated detailed injunctions and guidelines relating to m ono

gamy and polygamy. Ch ristians, Jews and Par sis had their own religious

laws on th e permissibility of plurality of spouses. The latest religion added

to the galaxy of Indian faiths, viz., Sikhism, too treated the issue spiritually,

taking as its basis the indigenous religious tradition and local usage in this

regard. Un til 1860 the issue of monogamy

versus

polygamy was thus

accepted and acknowledged as a subject to be tackled exclusively by reli

gion—different

religion based personal laws dealing with it differently.

In 1860 the newly enacted Indian Penal Code (IPC) introduced some

general provisions relating to polygamy. It contained two consecutive

sections—494

and

495—dealing

with polygamy. Section

494,

titled M arry

ing again during life time of husband or wife, provided punishment for a

second marriage during the subsistance of an earlier one (except when the

earlier m arriage had been nullified or the first spouse was missing for a long

period). Section 495 provided punishment for cases where the same 'offence'

had been com mitted concealing the fact of former marriage from the person

with whom subsequent marriage was contracted . During 130 years that

followed the enactment of the Penal Code these provisions have remained

substantially unamended but have, at the same time, been significantly

affected in their meaning and scope by social legislation adopted from time

to tim e. In this paper we shall have a critical look at these provisions of

the code in their historical perspective and also make an appraisal of their

interpretation by the courts.

II History of IPC provisions

As is

well

known, IPC had been based

by

its chief architect

T.B.

Macaulay

on the then English criminal law; and it had altogether replaced H indu and

Drawn

on author's Ph.D . thesis, The Institution of Polygamy in Modern India

and the Contemporary Islamic World : A Comparative Socio-Legal Study (University

of Delhi) (1990).

www.ili.ac.in © The Indian Law Institute



1990] VICE OF BIGAMY AND INDIAN PENAL CODE 387

Islamic criminal laws which till then prevailed in different parts of British

India. Neither the traditional Hindu law nor Islamic law treated polygamy

as on offence. The relevant

IPC

provisions found in sections

494

and 495

were clearly an innovation introduced into Indian law by the British rulers

and these were expectedly based on the British law.

In England, long before the enactment of

IPC,

bigamy had been treated

as an offence. Though even earlier local ecclesiastical courts had juri s

diction to penalise bigamists, specific penal legislation on polygamy was

first promulgated in 1603. It was enacted in the aftermath of the decision

in

Rye

v. Fuliambe

1

bringing forth the extent of bigamous marriages in the

country. The statute declared bigamy to be an offence except when the first

spouse was missing or absenting himself or herself for seven years, or in case

the earlier marriage had been dissolved or declared void by the ecclesiastical

court. Two and a qua rter centuries later the Offences against Persons A ct

1828 re-enacted the law on bigamy and sought to enforce it more stringently

by making no exceptions for situations where an earlier

marriage was

sub

sisting in any form.

2

This was where the English law on polygamy lay

when Macaulay started drafting IPC

Soon after the code was enacted, but before it was enforced, England

enacted its new Offences against Persons Act

1861.

The law on polygamy

under this Act was contained in section 57 which remains unaltered until

now. At present in British law bigamy is committed when a person, being

married, goes through a legally recognised ceremony of marriage with

another while the first spouse is still living. It is a defence to a charge of

bigamy that the first marriage has been dissolved or declared void by a

competent court. There is a further defence : if the accused can show that

the first spouse has been continuously absent for seven years and has not

been h eard of by him or her during th at time, he or she will be acquitted.

It was the aforestated English law of 1828 which must have shaped the

decision of the architect of IPC to incorpora te anti-bigamy provisions into

it.

Ill

Scope of sections

494

and

495

: past and present

Section 494 of IPC declares the following to be an offence:

(1) remarriage of a woman having a husband, and

(2) remarriage of a man having a wife.

In either case remarriage will be an offence if it is void by reason of its

taking place during the life of such husband or wife . The following

salient features of this section are notable:

1. (1602) M oo. K.B. 683.

2.

S.W. Bartholomew, The Origin and Development of the Law of Bigam y, 74

Law

Q.

Rev. 259 (1958).




388 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32

:

3

(1)

It prohibits both polyandry and polygyny and treats them on pa r.

(2) The prohibition is of a penal natu re and does not talk of the status

of a bigamous marriage at the civil law.

(3) The pena l provision applies only if the civil law applicable prohibits

the second additional

maniage

to the extent of treating it as void .

(4) The offence of bigamy can be established only when the first spouse

is living and marriage with him or her is legally subsisting.

(5) The provision will be attracted only if the second marriage is a

marriage in th e eyes of law.

(6) The section will no t apply to a case where the first marriage of a

person has been declared void by a court.

(7) Th e provision also will no t apply to a case where the first spouse

has been missing for seven years or more in the circumstances in

which the law of evidence and most of the p ersonal laws would

raise

presumption

of death (in such a case it being necessary that

the second spouse must have been informed of the facts before

remarriage takes place).

The provision of section 495 may be described as a special rule under the

general law laid down in section 494. All essential elements and ingredients

of the offence of bigamy under section 494 are fully applicable also to cases

under section 49 5; here there is an additional ingredient,

viz.,

concealment

of the existence of an ea rlier marriage from the person with whom the subse

quent marriage is contracted. In other words:

(1) If

a

married person m arries again telling his or her new spouse that

this is a second additional m arriage , section 494 will apply.

(2) W here a married person m arries again keeping his or her new spouse

in the dark about his or her earlier marital status, section 495 will

apply.

Bigamy, whethe r in the form of polygyny or polyandry, would attract

application of sections 494 and 495 only if the resulting marriage is void

by reason of its taking place during the life of such (first) husband or w ife.

Th is clause, in effect, subjects en tire provisions of these sections to the family

law applicable to the person concerned. In other w ords bigamy will be

penal only if the family law governing him or her tre at it as void. Or,

conversely, if the concerned familyl

w

trea ts bigamy as void it will also

be

an

offence un der

IPC—where

bigamy

is

permissible by the family

law

applicable,

it will not be an offence under the code.

In 1860 when IPC was enac ted th ere was no codified or statuto ry family

law in India; all the religious communities of India were governed by un

codified trad ition al or conventional laws. Am ong the various uncodified

laws, the one applicable to C hristians in British India trea ted both polygyny

and po lyandry as void, and so Indian Christians came very much within the





purview of sections 494 and 495. Polygyny among H indus , Buddh ists,

Sikhs and Jains was to be wholly outside its ambit as they were governed

either by their religion based personal laws or by customary law, both of

which did not trea t polygyny as void. How ever, polyandry am ong these

communities could att rac t application of IPC , except where customary law

permitted it. Jews and Parsis were then following their custom and usage

which did not specifically prohib it polygyny. As regards M uslims, to th e

extent Islamic law perm itted polygyny they also remained outside the scope

of sections 494 and 495. The fifth marriage of a Muslim man and second

marriage of a Muslim woman could apparently attract application of the

code if it could be shown tha t such a marriage was void under the school

of Muslim law applicable to a particular case.

The process of reforming laws applicable to marriages so as to invalidate

bigamy started in British India within the decade in which IPC had come

into force. In

1865

Parsis earned the distinction of being the first comm unity

to be given a statute of matrimonial law prohibiting bigamy.

3

Then, the

two statutes of family law enacted in 1869 and 1872 for Christians declared

bigamy to be void.

4

So did the first law on civil marriages enacted in 1872

which was made available to those who could give up their religion and

personal law.

5

During the same year

Brahmosamajis

were willingly sub

jected to an anti-bigamy statute.

6

During the first half of the twentieth century polyandry was banned by

law for Hindu and Jain matrilineal tribes in South

India

7

and for Buddhists

in Ladakh

8

—polygyny was also restricted or abolished under statutes made

applicable to the former. Restriction of polygamy by law was attem pted

at about the same time also in the then princely State of Baroda.

9

Later,

provincial legislation in Bombay, Madras,

Sauiashtra

and M adhya Pradesh

wholly prohibited bigamy for Hindus, Buddhists, Sikhs and Jains.

10

After Independence the Hindu Marriage Act 1955 prohibited bigamy for all

3.

Parsi

Marriage

and Divorce Act 1865, ss. 4, 5, 9 & 30, replaced by Parsi Marri

age and Divorce Act 1936, ss. 4, 5, 11 & 32 d).

4. Indian Divorce Act 1869, ss.

10,18

& 19(4); Christian Marriage Act 1872, s. 60(2).

5. Special Marriage Act 1872, ss. 2 1), 15, 16

&

17, replaced by Special

Marriage

Act 1954, ss. 4 a), 15, 24 i), 43 & 44.

6. Brahmo Marriage Act 1872, ss. 2 (i) & 15.

7. Malabar Marriage Act 1896, Travancore Nayar Act 1925, Travancore Ezhava

Act 1925, Travancore Nanjinad Vellala Act 1929, Madras Nambudiri Act 1932, Madras

Marumakkathayam Act 1932, Cochin Thiyya Act 1932, Travancore Kshatriya Act 1933,

^Cochin Nayar Act 1938, Cochin Marumakkathayam Act 1939, Cochin Nambudiri Act

1939, Travancore

Krishnanyaka Marumakkathayee

Act 1939, Cochin

Makkathayam

Thiyya Act 1940, Madras Aliyasanthana Act 1949 and Kerala Nambudiri Act 1958.

8. Laddakh Buddhists Polyandrous Marriages Prohibition Act 1941.

9. Baroda Hindu Nibandh 1937, s. 116.

10.

Bombay Prevention of Hindu Bigamous M arriages Act 1946, Madras Hindu

(Bigamy Prevention and Divorce) Act 1949, Saurashtra Prevention of Hindu Bigamous

Marriages Act

1950,

Madhya Pradesh Prevention of Hindu Bigamy Act 1955.




390 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32 : 3

these comm unities throughout the country ; in Jammu and Kashmir too

the new law was adopted by local legislation.

11

Outside British India, in Goa, Daman and Diu the former Portuguese

rulers had enforced various

codes

of native

usages during 1854-1912, trea t

ing differently

different communities

and sects in the m atter of polygamy;

13

while in Pondicherry the French Civil Code 1804, absolutely prohibiting

polygamy, had been adopted by a section of the local people.

18

The present position of the various religious comm unities vis a vis

sections 494 and 495 of the Code is as follows:

(1) Hindus, Buddhists, Sikhs and Jains: All

cases

of polygamy and poly

andry among persons governed by the Hindu Marriage Act 1955

attract application of IPC provisions.

(2)

Scheduled tribes among Hindus, Buddh ists, Sikhs a nd Jains:

Being

exempt from the Hindu Marriage Act among them neither

polygyny nor polyandry, if sanctioned by custom, attracts IPC law.

(3)

Christians and Parsis: AH

cases of polygyny and polyandry all over

India attract IPC provisions.

(4) Jews: Modern Jewish law prohibits also polygyny,

14

while polyandry

was never allowed by it; hence the IPC

law

applies to a ll bigamous

marriages among Jews.

(5) Muslims: Polygyny to the extent permitted by Muslim law (i.e., up

to four wives) does not attract the

IPC law, while

polyandrous

marriage of a woman does attract it.

(6) Parties to civil marriages: Irrespective of religion and community

bigamy on the part of any married man or woman whose first

marriage is a civil marriage attracts application of the IPC law.

Curiously, in regard to the various comm unities referred to above, while

the Parsi M arriage and Divorce Act 1936, Special Marriage Act 1954, Hindu

Marriage Act

1955

and Foreign M arriages A ct 1969 make a pointed refe

rence to sections 494 and 495, the Divorce Act 1869 of Indian Christians

makes no reference to these provisions of the code. To Christians these

provisions apply because while the Christian law treats bigamy as void,

IPC says that if personal law does so, its anti-bigamy provisions apply

automatically.

11. Jammu and Kashmir Hindu Marriage Act 1955.

12. Goa, Daman and Diu Codes of Native Usage 1854; Portuguese Civil Code 1867,

arts. 1073-74; Goa Code of Usages and Customs of Gentile Hindus 1880; Diu Code

of Usages and Customs of Non-Christian Inhabitants 1894; Law of Marriage 1911, arts.

4,

11

& 12; Dam an Amended Code of Usages and Customs of Non-Christian Inhabitants

1912.

13. French Civil Code 1804, art. 146.

14. Rachel

Benjamin

v.

Benjamin

Solomon Benjamin, (1926) 28 Bom. L.R. 328.





IV Judicial interpretation of sections 494 and 495

(1) First marriage:

proof

validity and subsistence in law

An offence under section 494 will be established only if—

(i)

there has been an earlier marriage of the accused;

(ii) it was a valid marriage under the law applicable; and

(iii)

the same is legally subsisting when the alleged second marriage

takes place.

Where there has been no earlier marriage at all, the existence of which

can be proved to the satisfaction of court, there will be no room for the

application of section 494. Existence of an earlier marriage can be proved

with reference to the form of its solemnisation and its validity; and both

these aspects

will be

considered under the matrimonial law applicable to the

accused.

As per section 50 of the Indian Evidence Act

1872

no offence involving

a marriage can be established unless the fact of marriage is strictly proved.

Co urts have applied this rule of evidence in the cases of bigamy under IP C ;

without a satisfactory proof of an earlier marriage, they have held tha t

section 494 of the Code cannot be invoked.

15

It is notable here that admis

sion of first marriage by the accused,

or

the statemen t

of a

witness that he

had attend ed it, does not prove formal marriage

so

as to warrant conviction

under section 494 read with section 109 (abetment).

16

A mere statement of

the accused tha t his second m arriage was bigamous is not sufficient.

17

Proof

of lawful performance of the first marriage is as essential as that relating

to second marriage, though according to

iecent

judicial opinion the degree

of proof required to prove the first marriage may not be the same as re

quired for the second marriage and the first marriage may be proved by

presumptive evidence and circumstantial evidence.

18

Regarding validity and valid peiformance of the earlier marriage it has

been held in a case that want of guard ian's consent will no t m ake an earlier

marriage

invalid—a

woman m arried

with

the consent of her father, though

in bis absence, cannot be married again.

19

W here the first marriage is

void under the law applicable to the parties the second marriage cannot be

bigamous—voidable nature of the first marriage would be immaterial.

20

15.

Shantimani Dei v. Lingaraj Moharana, 1982 Cri. LJ . 1567; Godawari v. State of

Maharashtra, 1985 Cri. L.J. 1472.

16.

Talep li Choudhary v. Sabdar Khan, (1940) 45 C.W.N. 84.

17.

Gopal

Anant

Musalgaonkar

v. State of Madhya Pradesh, 1976 Cri. LJ. 1333.

18.

Godawari supra note 15; cf . Ventipalii Neelaveni v. Ventipalli Venkateswara Rao,

(1988) 2 Andh. L.T. 770; Binapani Debi v. Ajit Banerjee, 1983 Cri. L.J. 1440.

19.

Benodini Howladar v. Emperor, A.I.R. 1927 Cal. 480; Gajja Nand v. Em peror

AJ.R. 1922 Lah. 139.

20.

Padi v. Union of India, A.LR. 1963 H.P. 16; Krishni Devi v. Tutsan Devi, A.I.R.

1972 Punj. 305.




392 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32 s 3

Marriage performed

during

minority will he a valid marriage so as to make

a fresh maniage bigamous.

21

As regards subsistence of the

fust

marriage until the date of the second

allegedly bigamous marriage, a marriage may be dissolved only either by

the death of either party or by a proper and legally recognised process of

divorce at the instance of either pa rty or by mutual consent of both the

parties. Dissolution by divorce has raised some complications, mainly

in view of differences of scope between the statutory and uncodified laws

relating to marriage and divorce prevailing in the country and applicable to

different communities.

In Hindu law divorce is at present possible both by law and by custom.

In the former case it is now strictly by a judicial process whereas extra

judicial customary divorces are recognised by section 29(2) of the

Hindu M arriage Act. W here th e first marriage has been dissolved by a

customary divo rce, proof of custom becomes very relevant to the ques

tion whether a subsequent second marriage would amount to bigamy.

In one such case where

minoi

spouses got themselves

divoiced

without

parents' consent, the divorce was held by the court to be invalid for the

purpose of legalising the subsequent bigamous marriage.

22

In the absence

of proof of subsistence of first marriage , second marriage canno t, however,

be held invalid.

23

In a very recent case where a Lingayat Hindu woman

exercised her customary right of divorcing herself and then remarried, the

Supreme C ourt held that she

was

not guilty of polyandry.

24

To the question

whether remarriage of a Hindu prohibited by section

15

of the Hindu

Marriage Act (which prohibits remarriage of parties until divorce becomes

final) would amount to bigamy, judicial response is an emphatic no .

25

The question whether a Christian marriage can be dissolved outside the

court so as to validate a fresh marriage, the answer of the court has been in

the negative; a judicial decree under the

&tatutory

law is a must.

26

A s

regards the question whether the marriage of a Muslim woman can be dis

solved

extrajudicially

making room for a lawful second marriage, we have

conflicting judicial opinions. Some courts have upheld rules of Muslim

law allowing termina tion of an existing marita l bond at the instance of a

wife but without a judicial process;

27

some have insisted on confining

Muslim women's rights strictly to the statutory law on the subject, i.e., the

Dissolution of Muslim Marriages Act 1939.

28

We find a conflict between

21. Pinninti Venkataramana v. State of Andhra Pradesh, A.LR . 1977 A P 4 .

22. Sodha v. Mansha Ram, A.LR. 1971 H.P. 27.

23 . Mohan Ram v.

Badamo

Devi

1974

Cri. LJ. 227;

Usman

v. Budhu, A.I.R. 1942

Sind 92.

24 .

Shakuntatabaiv.

L.V.

Kulkarni, A.LR.

1989 S.C. 1359.

25 .

Kailash Singh Pariharv. Priti

Parihar

1982 Cri. L.J. 1005.

26.

Gyanasoundari

v.

Naliathambi,

A.LR. 1945 Mad. 516.

27.

Shaft Ullahv. Emperor, 1934 Cri. L J . 1053; Muhammad Baksh v. Khuda Baksh,

1950 Cri. LJ. 1169.

28 . Usman, supra note 23 ; K.C. Moyin v.

Nafessa,

1972 K.L.T. 785.





the attitude adopted by the courts in some of these cases and the clear clause

of section 494 of IPC protecting contrary rules of personal laws. W here the

matrimonial law applicable to a woman recognises an extra-judicial term i

nation of her first marriage how can her second marriage be covered by sec

tion

494

which accords protection to the (civil) law applicable to the accused

?

The latest Supreme Court ruling in the

Lingayat

w oman's case does

appeal

to be sound, whereas those applying the IPC law to women rem arrying after

lawfully dissolving their first marriage

extra-judicially

seem to be incorrect.

(2) Second marriage: proof solemnisation and validity

To attract application of section 494, the second marriage should be

void under the personal law governing the partie s by reason of its taking

place during the life time of the first spouse. Nullity of second m arriage

under the personal law applicable to the bigamist is thus one of the essential

ingredients of section 494. The alleged second marriage which may att rac t

application of section 494 has to be proved to the satisfaction of the co ur t;

and it can, clearly, be proved only with reference to a pro pe r solemnisation

of the marriage. In other words, if an alleged second marriage has no t been

properly solemnised with due rites and rituals as per the personal law or the

customary law applicable to the pa rties, it would remain ou t of the ambit of

section 494. In a large number

of cases

co ui ts, insisting on a strict proo f of

the second marriage, have called for evidence of a meticulous compliance

with the process of solemnisation under the law governing the parties.

Since among Hindus marriage is a sacrament and m ust take place through

a ceremony

shastric

or customary) as per section 7 of

the

Hindu Marriage

Act, a proper performance of marital rites and their strict proof has been

insisted upon by the Supreme Court in respect of prosecution for bigamy.

29

A good number of High Courts have followed suit in deciding that in the

absence of strict proof of marital rites having been properly performed, an

alleged second marriage cannot be recognised as marriage under section 494

of IPC—if not so proved the relationship assailed will be simply an adul

terous unio n not hit by the provisions of

the

section.

30

On the contrary, in

a recent case the Calcutta High Court has apparen tly been inclined to

recognise the existence of a second marriage even on the basis of its estab

lished reputation .

31

In our opinion this seems to be more reasonable. The

nature and divergence of marital rites among Hindus m akes the judge

29.

Bhaurao Shankar Lokhande v. State of Maharashtra, A.LR. 1965 S.C. 1564; Priya

Bala Ghosh v. Suresh Chandra Ghosh, A.LR. 1971 S.C. 1153; Gopal Lalv. State of Rajas-

than, A.I.R. 1979 S.C. 713.

30. B.Chandra Manikyamma v. Sudarsana Rao, 1988 Cri. L.J. 1849;

Shantimani

supra

note 15; maliammal v. Rayarswami 1983 Cri. LJ. 1719; Ram Singh v. R. Sushila Bai,

A.I.R. 1970 Mys. 201; Mukta Jesing v. Vallabhadas Kalidas, 1974 Cri. LJ. 121; Swapna

Mukherjee

v. Basanta Ranjan Mukherjee, A.I.R, 1955

Cal.

533.

31.

Binapani

supra note

18.




394

JOURNAL OF THE INDIAN LAW INSTITUTE [Vol, 32 I 3

made law requiring meticulous compliance with them as a pre-condition to

prosecution for bigamy, rather unreasonable.

In Muslim law , strictly speaking, there are no marriage ceremonies.

However, in India a certain procedure of marriage has attained the force of

law and the courts have in some cases required proof of this procedure to

substantiate an allegation of polyandry.

32

Difficult questions have arisen

where persons professing Islam or

Christianity

remarry as per Hindu rites

without changing religion. In one such case the Punjab High Court regarded

this as a case of

bigamy,

while the M adras High Court has expressed a diffe

ren t opinion holding that in such a case the marriage could not be said to

have been duly performed.

33

A formal declaration that the second

marriage is void unde r the personal law applicable is not a pre-condition

for trial of the offence of bigamy.

34

Must the second marriage (which is allegedly bigamous) be otherwise

valid under the matrimonial law applicable to the

accused?

The question

has not been uniformaUy answered by cou rts. For instance, will a second

marriage which is incestuous (violating rules of prohibited degrees) as per

the matrimonial law applicable be acceptable to courts as a bigamous

marriage under section 494 of

IPC

? In some old cases it was decided that

even an invalid second m arriage would fall within the scope of this section.

36

But in recent years cou rts have seemingly insisted tha t only that second

marriage can be bigamous which is otherwise valid under the law applicable.

86

The observation of Justice Sanjeeva Row Nayudu in Morrapu Satyanarayan

v.

State of

Andhra Pradesh® reproduced below is notable:

This object of the person committing bigamy, and which is sought

to be defeated by the section

by

declaring it an offence, is no t achieved

if the second m arriage is one which is no marriage a t all in the eye of

law, oi which is otherwise void, in which case it cannot be said that

there was a valid marriage, and the meaning of the word m arries

is not satisfied.... There may be many instances where a second

marriage m ay be no marriage at all and in which case there could

be no question of bigamy, as for example, where the parties are so

closely related that a marriage between them is void according to

their personal laws, or where the person sought to be taken in second

marriage is himself or herself no t eligible to be taken in marriage; and

there

may be

many other instances,

and

it is unnecessary to notice all

32.

Badal Aurat

v.

Queen-Empress,

(1891) 19 Cal. 79.

33. Payariv.

Faqir Chand Alakha, A.LR. 1961

Punj.

167; Amaliammal supra note 30.

34. Channamma

v.

Dhalappa,

A.L R. 1958 M ys. 147.

35.

Taher Khan v. Emperor, A.I.R . 1918 Cal. 136; Sant Ram v. Emperor, A.LR. 1929

Lah .

713;

Emperor

v.

Soni,

A.LR. 1936 Nag. 13;

Payari, supra

note 33.

36.

C.G. Rangabashyam

v .

Ranjani Murugan,

1981 Cri. L J . 577;

Kalanjam

Ammal

v. Shanbayam, 1989 Cri. L J . 405.

37. Morrapu Satyanarayan

v.

State of

Andhra

Pradesh,

1962 (2) Cri. L J . 644.





of them in this connection. I am inclined to agree...that the second

marriage should be something which could be regarded as a m arriage

in the sense in which marriages are understood; and if it is no marriage

at a ll, and if it cannot have any validity in law, apart from the fact tha t

by reason of its being a bigamous marriage, it would be declared void,

it cannot be said that the offence of bigamy had been committed.

38

This thinking has led the judiciary in this and some other cases even to

the seemingly unreasonable opinion that if a married man m arries a married

woman who is no t by law eligible for m arriage , this would be th e case of a

legally non-existent relationship that would not attract the application of

section 494.

39

This judicial attitud e has the effect of curtailing the scope of

this section and restricting it to cases where at least one party to an allegedly

bigamous marriage has been hithe rto unmairied or where the first marriage

of the party other than the accused is no t subsisting on the date of the

second marriage. In our opinion such an interpre tation of the law is no t

warranted either by the language or the spirit of the IPC law on polygamy.

(3) Section 494: some other aspects

Like any other offence mens rea would be an essential ingredient for

constituting the offence of bigamy under IPC . This has been specifically

clarified by the courts in a number of cases.

40

So where a married person

marries again in good faith and without any criminal inten t, the provision

of section 494 may not apply.

Where, after a second bigamous m arriage is contrac ted, the first marriage

is dissolved either by death of the first spouse or by any form of a lawful

divorce, will section 494 become inapplicable? Apparently it will not be so.

As regards the effects of a subsequent divorce, there are a num ber of judicial

decisions that this would not exonerate a bigamist.

41

Like any other offence under IPC, in respec t of the offence of

bigamy too section 109 of the code would apply so as to render abetment of

bigamy also an offence. Several courts have decided this way, clarifying

that merely attending a bigamous marriage or being involved in it otherwise

than in a position enabling one to prevent the offence from taking place may

not amount to the abetment of the offence.

42

(4) Section 495

Section 495 of IPC, relating to bigamy by fraud, has been applied by

38. Id .

at 648.

39. C.G. Rangabashyam, supra note 36.

40.

Sankaran Sukumaran v. Krishnan Saraswathy, 1984 Cri. LJ . 317; Ahmed Koya

v. Amino Beebi, 1972 K.L.T. 1069.

41. A. Narasimha Ayyangar v. K. Ramayya Chettiar, A.LR. 1932 M ad. 560.

42.

Karuppiah Servai v. Nagavalli Ammal 1982 Cri. LJ. 1362; C.S. Varadachari

v.

C& Shanti, 1987

Cri.

LJ, 1048*




396

JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32

: 3

courts in some reported cases.

Jh

an old case a woman who, without a

proper enquiry, presumed that her first husband was dead (while he later

turned up) and thereupon married again, wholly concealing

fiom

her

second husband the fact that she was once married, was subjected to the

penalty under this section.

43

Active helpers of a person whose second m arriage is covered by the law

of section 495 may be liable to punishment as abettors under this section

read with section 109 of

IPC.

44

In a recent case it has been explained that

the basic ingredient of

an

offence under section 495

is

concealment of the

fact of the earlier

marriage—the

remaining law being the same as under the

preceding section.

45

V Two exceptions under section 494

Under the heading Excep tion section 494 mentions two circumst

ances in which a second marriage

will

no t attra ct its application. These

are in fact two different exceptions, and their nature and scope is wholly

different.

The first exceptional circumstance excluding the application of section

494 is the fact of the earlier marriage having been declared void by a court

of

competent

jurisdiction. Two aspects of this exception are notable.

First,

since subsistence of an existing marriage until the second marriage is clearly

specified as a condition under the section for its applica tion, specification of

this circumstance seems rath er superfluous. Where a marriage has already

been declared void, it is, obviously, not in existence at the time of the second

marriage and so the case will be automatically out of

the

scope of section 494.

Second

does the exception mean tha t the fact that a m arriage is void will in

itself not be covered by its provision or will a decree of nullity be necessary

9

The la tter interpre tation is negatived by m any judicial rulings which have

decreed tha t if the first m arriage was void, the second will not count as

bigamy.

46

The condition of obtain ing a decree of nullity is not imposed in

respect of void m arriages by modern Hindu law, Muslim law and the

laws of

civil

marriages. It

is,

therefore, inconceivable

that

in respect of these

com munities, in the absence of a decree of nullity, even a void marriage

would be a bar to rem arriage ; for this will amount to an implied recogni

tion of void marriages.

The second statutory exception keeps a fresh marriage outside the mis.

chief of section 494 where the first spouse has been continuously absent

for seven years . This exception will apply only if the other spouse informs the

new spouse—before the second marriage—that it is a case of the first spouse

43. Queen

v.

Enai Beebee,

(1865) 4

W.R.

(Cri.) 25.

44. Karuppiah, supra

note 42.

45. Jagdish Chandra Verma v. Neetam

Kumari,

1979 Cri. LJ. (N.O.C.) 202.

46. Supra

note 20.





having been missing for not less than seven years preceding the date of re

marriage. It is notable tha t the period of seven years, referred to in the

exception to section 494, is also treated as a factor raising presumption of

death under section 108 of the Evidence

Act

and as a ground for divorce

under the Special Marriage Act

47

and the Hindu Marriage Act.

48

There is,

thus,

no conflict in respect of the period of absence during these latter legal

provisions and IPC . However, while the

Maliki

school of Islamic law

allows remarriage of a missing person's spouse after a period of four years,

in an old Punjab case it was decided that this provision of Islamic law stood

overruled by

IPC.

49

Subsequently the said provision of

Maliki

law was

incorporated into the Dissolution of Muslim Marriages Act which now

is the general law applicable to all Muslims.

50

The present position seems

to be that where a decree of divorce has been obtained by a missing person's

wife under this Act, she can immediately remarry.

VI Punishment,

procedure

and

jurisdiction

The punishment provided under sections 494 and 495 of IPC is imprison

ment of either description up to seven years and fine, and up to 10 years

and fine, respectively. Since the quantum of fine as well as the duration of

punishment within the maximum limit has been left to the discretion of

cou rts, in several cases judicial decisions have in effect come forward with

self-assumed guidelines for fixing up the sam e. Fo r instance , where a

woman, deserted by her husband for long, married again and the prose

cution for bigamy arose out of vindictive motive, a light sentence was

awarded.

51

In another case where the accused was below 22 years of age

and undertook to keep his first wife with him the court preferred to release

him on probation.

52

In a third case, where the accused had undergone

26 days of punishment and then released on bail while he had remarried

after having been deserted by his first wife, the Punjab High Co urt awarded

no more punishment though it increased the fine.

53

Offences under sections 494 and 495 are non-cognisable, bailable and

compoundable, and prosecution

for them

can be initiated on the basis of a

complaint only. "Some person aggrieved by the offence has to file a

complaint. "Some other perso n may be permitted by the court to make a

complaint only where the aggrieved person is a minor under 18, an idiot or

lunatic, sick or infirm, or a woman inhibited by local custom and manners

from public appearance. If the aggrieved person is a wife, her pa ren ts,

47.

s. 27

i) h).

48.

S. 13(l)(v/i).

49.

1878

Punj.

Re. No. 27 (Cri.) 67.

50. S. 2(0.

51. Ritha v. Emperor, A.I.R. 1926 N ag. 127.

52.

Sindhiya Devi

v.

State of Uttar Pradesh,

1974 Cri. L.J. 1403.

53.

Supra note 45.




398 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 32 3

children, brother, sister, uncle or aunt, can make a complaint on her

behalf without prior permission of the court—any other relative can do so

only with the court's prior permission.

54

Section 182(2) of the Code of Criminal Procedure 1973 provides three

venues for enquiry and trial of the offences under sections 494 and 495,

viz.,

the cou rt w ithin whose local jurisdiction (1) the offence was comm itted, (2)

the offender last resided with his or her spouse by the first marriage, or (3)

the wife by the first marriage has taken up permanent residence after the

commission of the offence. The jurisdiction of the last mentioned court

has been upheld in a number of recent cases.

55

VII Conclusion

In the context of the social menace of polygamy the present Indian law

is awfully defective. Many legal changes are required in this law. If

bigamy means two women cohabiting with the same man as his wives, it

is surely an archaic practice and must be stopped by law. But if bigamy

means rem arriage of a married man after separation from his first wife with

whom his marriage has in fact irretrievably broken down, mere passing of

laws cannot stop it. To pu t an end to such a practice what is required is an

overall reform and a thorough overhauling of

the

entire system of our matri

monial laws—both substantive and procedural. There is no doubt that in

our country now bigamy exists not in its first but in the second meaning,

given abov e. The num ber of cases in which a man may actually be

cohabiting with two or more wives is indeed m icroscopic. Married men, of

course, marry again—but they do so when their first marriage, although

still existing in nam e, has in fact broken down . And this malady cannot

be cured either by declaring bigamy to be an offence or by simply providing

under the family laws that a bigamous marriage would be void.

An effective enforcement of the

socio-legal

ideal of monogamy in India

requires, as the first step, a prope r reform of sections 494 and 495 of IPC

as also of the laws of divorce applicable to various com munities in India.

The latte r a re outside the scope of the present paper and require a separate

study in dep th. He re we suggest the following reforms for these sections:

First,

these sections should be amended to provide that a bigamous

marriage will attract their provisions if it has taken place in violation of the

ma trimonial law applicable although it m ay no t be void under th at law and

even if not properly solemnised or contracted as required by that law.

Second

the exceptions in section 494 should b e deleted as they are super

fluous and are already covered by the marriage laws applicable in various

cases.

54 . Code of Criminal Pro cedure 1973, s. 198.

55.

Ravinder Kaur

v.

Gurmit Singh,

1985 Cri. L.J. 601;

Ningappa Shivappa Gown

v .

Kalavathi,

1986 Cri. L J . 1719;

Sukhaswarooplal

v.

State of Madhya Pradesh,

1987 Cn.

LJ . 921 .





Third

on the lines of section 12 of the Child Marriage Restraint Act

1929, an appropriate provision should be made empowering courts to issue

an injunction prohibiting an intended bigamous marriage if it violates

requirements of the law applicable to the case.

Fourth,

offences under these sections may be made cognisable, non-

bailable and

non-compoundable.

Fifth, the Family Courts Act 1984 should immediately be implemented

throughout the country and family courts having civil and criminal divisions

should be set up unde r its provisions. Jurisdiction to decide all proceedings

involving bigamy, both civil and criminal, should be vested in these courts.

Sixth,

convenient and quick procedure for disposal of all matrimonial

cases—civil

and criminal, ignoring the niceties and rigidities of the rules

of civil and criminal procedure followed in other c our ts, and focusing on

reconciliatory

methods—should

be detailed in the Family Courts Act.

Kir an B . Jain*

*LL.

M., Ph. D. (Delhi), Assistant Research Professor, Indian Law Institute.


Documents

Vice of Bigamy and Indian Penal Code_Ramifications of an Archaic Law (389-399)