BIGAMY LAW AND SOCIAL REALITY

SUBJECT — FAMILY LAW

Submitted by

POZHILAN M

BA0180033

Course: BA LLB (HONS) - I year

Submitted to

Ms. Jasoon Chelat,

Assistant Professor,

Tamil Nadu National Law University,

Trichy - 620027

Marks Awarded-

Project:

Presentation and Viva-Voce:

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Total:

ACKNOWLEDGEMENT

Without the extraordinary help provided to us by a number of people, this project wouldnt have
been possible to complete. First and foremost, we owe our gratitude to our Family Law Professor
Ms. Jasoon Chelat, for her incredible guidance throughout the course of this project. We are
deeply indebted to the University for giving us an excellent platform to learn a lot and to do
research. We are also extremely grateful to the TNNLU Library for playing an instrumental role
in providing us with more than enough material to complete our project. Our gratitude is also
due, to our parents who never wavered in their moral support and to our friends for their constant
encouragement which spurred us to push harder and complete the project. Thank you once again
to each and every person who made this project possible.

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Contents
INTRODUCTION:......................................................................................................................................2

BIGAMY LAWS IN INDIA:.......................................................................................................................2

BIGAMY IN SOCIETY:.............................................................................................................................3

INTERPRETATION OF CASE LAWS OF BIGAMY:...............................................................................4

IMPACT OF BIGAMY LAWS- SOCIAL REALITY:...............................................................................10

CONCLUSION:........................................................................................................................................11

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INTRODUCTION:
Section 494 of Indian Penal Code (IPC) states that marrying again during the lifetime of husband
or wife is prohibited and such marriage is considered to be void under this section. Also that the
performance of the above stated prohibitory action strictly punishable with the sentence of
imprisonment up to 7 years and also liable to pay fine.

There are few exceptions for which this section may not be applicable to:
Some of the main exceptions, when a husband or wife is absent for a period of 7 years or
personal laws which provide support to people specified under the law to marry more than one
women. There are also certain circumstances where bigamy may arise due to cheating by either
the husband or the wife. This is being dealt by section 495 of IPC. Are these bigamy laws being
perfectly executed in India? What is the social reality of the impact of the bigamy law in the life
of the people of India? These questions will be answered in this project by analyzing and
interpreting the case laws which are related to offences committed due to bigamy.

BIGAMY LAWS IN INDIA:

 What is Bigamy?

Bigamy is the action of performing marriage with another person during the lifetime of the
former spouse. Bigamy is considered to be an offence under section 494 of Indian Penal Code
1860. From this section of Indian Penal code we can infer that performing marriage with another
person while your former spouse is still living(Bigamy) is an offence and the second marriage
performed with other person is void and the person who performed second marriage during the
lifetime of the spouse is punishable up to a period of 7 years and by fine.

 Concealment of former Marriage:

When bigamy is performed by concealment of the fact of having first marriage with the former
spouse by the person who performs the second marriage, from the person with whom he
performs the second marriage, the person who had concealed the information that he was already
married and his former spouse is still living will be punished by imprisonment with an extended
period of 10 years and also by fine.

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BIGAMY IN SOCIETY:
In Hindu Marriage act 1955 marrying more than one spouse leads to bigamy and the second
marriage performed will be punished accordingly with the case filed against the person who had
committed bigamy. The suit can be filed by the aggrieved woman (first spouse) or by her sister,
son, daughter, father, mother, brother, , or her father or mothers brother or sister. But there are
certain conditions for a marriage to be valid under Hindu Marriage Act 1955. Only if the second
marriage fulfills all the essential conditions laid out by the Hindu Marriage Act 1955, The second
marriage is said to be held and it is not void ab initio. Only when the second marriage has been
performed in accordance with the conditions laid out by the Hindu Marriage act 1955 the
marriage is said to be performed and can be punishable under the sections of 494, 495 of Indian
Penal Code 1860 accordingly with the way in which the offence of Bigamy was performed. Let
us see some analysis regarding the landmark cases which involve the issue of Bigamy.

SECOND MARRIAGE TO BE DULY SOLEMNISED: NECESSARY?

In this case analysis let us see whether it is necessary for the second marriage to be duly
solemnized according to the marriage act under which it is registered , If section 494, 495 of IPC
need to be applied.

INTERPRETATION OF CASE LAWS OF BIGAMY:

BS LOKHANDE V. STATE OF MAHARASHTRA (1965) : 1

In this case the husband is married to Indubai (first wife) in the year of 1956. Then he marries
Kamlabai in the year of 1962. But Indubai was alive during the second marriage performed by
the husband and they have not been divorced. So a case was filed against the husband for
performing bigamy.

Issues:

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BS Lokhande v. State of Maharashtra, AIR 1965, SC 1564
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  Whether the second marriage performed by the husband with Kamlabai was properly
solemnized to be valid?

 Whether the husband is punishable for performance of bigamy stated under section 494
of Indian Penal Code?

ANALYSIS:

 The accused held the defense that the second marriage performed by the him with
Kamlabai was not duly solemnized and hence the second marriage is not valid. But the
court in it's proceedings held that the second marriage was performed in Gandharva form
of marriage which was prevalent in the community of the husband. And hence the second
marriage was duly solemnized as it was performed in accordance with the conditions
stated in the Hindu Marriage Act 1955.

 Since the second marriage was duly solemnized the husband had performed marriage
during the lifetime of the first wife which amounts to bigamy with regard to the statement
in Section 494 of Indian Penal Code. Thus under the previously stated section performing
Bigamy is punishable with imprisonment up to a period of 7 years. But here there is no
concealment of the fact of first marriage from Kamlabai and hence he cannot be
punishable under section 495 of IPC.

CONVERSION TO ISLAM:

Unlike Hindu marriage, according to Muslim personal law, in Muslim marriage the husband can
have 4 wives at a same time, and it does not amount to Bigamy. This fact is being used by some
people to escape the punishment of performing second marriage under section 494 of IPC by
converting themselves to Islam. One of the most famous case which deals with this is being
discussed below.

SARLA MUDGAL V. UNION OF INDIA (1995)2

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Sarla Mudgal v. Union of India, (1995) 3 SCC 635

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The husband had married his first wife under Hindu marriage act 1955. Then he converted to
Islam to perform his second marriage without dissolving the first marriage performed under
HMA. the petitioner alleged that her husband had converted to Islam only with the incentive to
perform a second marriage as HMA doesn't allow Bigamy, but Muslim personal law does.

Issues:

 Is the husband allowed to perform second marriage by converting to Islam without

dissolving the first marriage performed under HMA?

 Whether the husband is punishable for committing offence under section 494 of IPC?

ANALYSIS:

 In this case the second marriage cannot be interpreted in accordance with Hindu Marriage
act as it is applicable only for the marriage between two Hindus. Islamic laws are also not
applicable as it only when both the parties are Muslims. And thus the court interpreted
this case by applying the principle of justice, good conscience and equity.

 From the courts interpretation it held that the first marriage which was performed by the
husband under HMA must be dissolved in order to have a second marriage by converting
to Islam as the HMA is still applicable to the husband as the first marriage has not yet
been dissolved. Thus HMA strictly states that only Monogamy is allowed. Here the
husband had performed bigamy and hence he is punishable under section 494 of IPC.

CONCEALMENT OF THE FACT OF FORMER MARRIAGE:

In the following case we will be dealing with the commission of the offence of bigamy by
concealing the fact of former marriage from the party with whom he had contracted his
subsequent marriage.

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DEEPAK LAXMINARAYAN VARMA AND ORS VS THE STATE OF MAHARASHTRA
AND ANR (2019)3

In this case the wife who is the complainant had got married with her husband on 2005 with
respect to Hindu Vedic rites. The wife was harassed and thrown out of the house by the husband.
Then the husband who is the petitioner here had filed for a divorce in the family court of
Mumbai which was dismissed by the court in 2012. After few months the husband had filed
RCR. It was later known that the husband had already been married to smt.Sumit deepak varma,
which the husband did not disclose to his wife during their marriage. After getting married he
again got married with another woman Neelu sharma who gave birth to their child in 2010. This
is his third marriage. Now the second wife after coming to know these happenings filed a case
against him under the sections 494, 495 of IPC.

Issue:

 Whether there was an act of polygamy being performed by the husband? Is he punishable
under the section 494 of IPC?

 Whether the husband concealed the information of already getting married from the
complainant(wife)? Is he punishable under the section 495 of IPC?

ANALYSIS:

 In this case the husband can challenge that the marriage held with the third wife was not
duly solemnized as it was not held in accordance with the conditions laid out for the
marriage by HMA. But the court had found adequate evidences that the marriage was
duly solemnized and hence the husband had performed polygamy. Thus here the husband
had married again during the lifetime of his spouse and hence he is punishable under
section 494 of IPC.

 From the facts of the case the court had clearly found that the husband had concealed the
information of already getting married to smt.Sumit deepak varma from his second wife
(complainant). Thus he is punishable under section 495 of IPC for concealment of
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Deepak Laxminarayan Verma v. State of Ma ..., 2016 SCC OnLine Bom 4865
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 information to get the complainant married to him. Here second wife is eligible to file
case under this section because she was the one who was cheated into this marriage by
concealment of information by the husband.

Thus the petitioner was found guilty under section 494,495 and hence the court awarded
punishment to the petitioner in accordance with the section under which the case was filed.

PERSONAL LAWS: DEFENCE AGAINST ACCUSATION OF BIGAMY?

This case deals with the aspect that whether a person who performs bigamy can escape the
punishment under section 494 in the pretext of personal laws.

VENUGOPAL K. Vs. UNION OF INDIA AND ORS

Here the petitioner had filed this case to promote the social welfare among the society by
bringing justice to the offences like these going unquestioned. Here Abdul Kareem married
Afitha in 2014 under Muslim marriage rites. Abdul Kareem already had a wife who was a
mentally ill patient and so he promised his second wife that he would take care of her properly.
He took Afitha home and the next day he left her at her relative house after getting 5 sovereigns
of gold ornament and did not return. Thus the petitioner filed case against Abdul Kareem under
various sections of IPC which also included section4 494.

Issue:

 Can the accused take defense that Muslim personal laws allows him to marry up to 4
wives at a time?

 Is the husband punishable for performance of Bigamy under section 494 of IPC?

ANALYSIS:

 The husband and wife had married under Muslim marriage rites and hence the Muslim
personal laws are applicable. According to Muslim personal law a husband can perform 4

4
Venugopal K. v. Union of India, 2015 SCC OnLine Ker 798
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 marriages at a time and thus the second marriage performed by him does not amount to
bigamy in this case.

 COUNTER ARGUMENT: But according to Muslim personal law if the husband has
more than one wife he should treat all his wives equally. But here the husband fails to
perform his marital obligation which clearly implies that he had used the marriage just to
obtain dowry and leave her.

 Also that Section 494 of IPC is irrespective of religion which is not specific for Hindus,
Muslims or Christians. Thus everyone is equally subject to the section 494 of IPC and
hence personal laws cannot be used as a defense for the accusation of Bigamy under
section 494 of IPC.

From this analysis we can conclude that the husband is punishable under section 494 of IPC.

EXCEPTIONAL CASE:

Sometimes there might not be enough evidences to prove that the second marriage which was
held during the lifetime of the first spouse and thus the petition may fail to obtain punishment for
the offender who performed bigamy as the second marriage is invalid and thus the bigamy laws
are inapplicable.

B.CHANDRA MANIKYAMMA VS B.SUDHARSANA RAO ALIAS SALEEM (1988) 5

In this case the Husband had married his (petitioner) wife on 21.4.1977. They both belong to
Kamma community. They married under Hindu Marriage Act 1955. Then he married another
woman under Hindu rituals in 1983. This came to the knowledge of the (petitioner) and thus
feeling that the former wife may take action, the husband and the second wife again got married
according to Muslim rituals in 1984. Thus the first wife(petitioner) filed a case under section 494
of IPC against her husband.

Issue:

 Whether the second marriage performed by the husband valid?

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B. Chandra Manikyamma v. B. Sudarsana Ra ..., 1988 SCC OnLine AP 135
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  Whether the second marriage contracted by her husband with another woman during the
lifetime of the first wife amount to committing of Bigamy? Is he punishable under section
494 of IPC?

ANALYSIS:

 Here the court came to know that after the second marriage done according to Shia
law for Muslim marriage, the husband and the second wife still continued to live like
Hindus in their home. They failed to visit Mosque every week. They celebrated all
Hindu festivals. There was no witness while performing their second marriage, which
is still considered to be only improper and not void. But by considering all these fact
the court concluded that the second marriage performed by the husband and second
wife is not valid but void.

 Since the second marriage committed by her husband with other woman is itself void,
there can be no Bigamy committed by her husband. Since no second marriage was
performed, section 494 is not applicable in this case and the defendant is not
punishable.

The court declared that the husband is not punishable and dismissed the petition.

IMPACT OF BIGAMY LAWS- SOCIAL REALITY:

Are the Bigamy laws really serving the purpose for which they were enacted? How effective
are they ? Have they completely provided Justice to the people who have committed the offence?

From the exception case we can infer that there are certain loopholes in the Bigamy laws by
which the offenders escape the punishment for the law which they violated. In this case though
the husband had every intention to perform bigamy, he escaped the punishment because the
second marriage which he performed was not considered to be valid. We should consider the
actual reality which the law fails to take into account: None would perform a second marriage
with their spouse living in public at large, it is mostly performed in secrecy. Thus we cannot
always have enough evidence that the second marriage performed was duly solemnized, which
leads to failure of proving that the second marriage performed was valid. The accused can also
challenge the validity of the First marriage. For example let us consider a couple, husband and

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wife of age 50 and 40 respectively. The husband now marries another woman of 30 years of age.
When the first wife files a case the husband questions the validity of the first marriage. How can
she provide evidence or remember the rituals which were performed before 20 years or more.
Sometimes people use the personal laws which may allow more than one marriage at a time.
Thus these loopholes of the Bigamy laws are being used by the offenders to escape the
punishments which the laws have laid out in chance of their violation. In Tamilnadu we know
some prominent late leaders who had more than one wife but yet not being questioned by the
judiciary since there was none to file a case against this. This shows that the purpose of laws laid
against bigamy goes in vain if there is no one to file a case. Thus this is the social reality of the
Bigamy laws in society. The affected people should have faith in the law and judiciary of our
country and arise above the threats made by the offender, which some people still lack in our
society which leaves most of these offences go unreported.

CONCLUSION:
From this research we can conclude that the laws which were enacted to punish the individuals
who commit bigamy, will be as effective as we try to know about the provisions present in that
enacted sections and use them effectively against these offences. These laws are like tools in our
hands, we are the consumers and it is our responsibility to know the nature and capability of that
tool and use it for reviving justice in the ground of society.

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