ISLAMIC UNIVERSITY IN UGANDA (IUIU) – KAMPALA CAMPUS

FACULTY OF LAW - BACHELOR OF LAWS / EVENING

CODE: CRIMINAL LAW – LAW 1201

DATED: 06th April, 2023

GROUP D (ALPHA)

No. STUDENT NAMES STUDENT REGISTRATION NO. SIGNATURE

1 KIVUMBI GODFREY 222-053012-23939

2 LEONARD OGUGU 222-053012-23273

3 ELWELU DENNIS 222-053012-24154.

4 SIMON PETER MUGABI 222-053012-23310

5 OKELLO JUSTINE 222-05302-23202

6 AKERA PAUL 222-053012-24144

7 NABONGHO GEORGE 222-053012-23358

8 ALLAN KIWEESI SSEBUYIRA 222-053012-23620

9 MUTYABA CHRISTOPHER 222-053012-24012

10 ANNET NABABIRO 222-053012-23178

11 JOSHUA MUHUMUZA 220-053012-16331

12 SSENTONGO FAHAMI 220-053012-20372

13 HUSSAN MUBIRU 219-053012-15736

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DISCUSSION QUESTION:

BIGAMY

OUR SUBMISSION:

Sec 153 of the Penal code Act Cap 120

The above section provides that;
Any person who, having a husband or wife living, goes through a ceremony of marriage which is void
by reason of its taking place during the life of such husband or wife commits a felony and is liable to
imprisonment for five years; except that this section shall not extend to any person whose marriage
with such husband or wife has been declared void by a court of competent jurisdiction, nor to any
person who contracts a marriage during the life of a former husband or wife, if such husband or wife,
at the time of the subsequent marriage, shall have been continually absent from such person for the
space of seven years, and shall not have been heard of by such person as being alive within that time.

According to the Black’s Law Dictionary 09th Edition;

The term Bigamy refers to “the act of marrying one person while legally married to another”.
The criminal offense of willfully and knowingly contracting a second marriage while the first marriag, 
to the knowledge of the offender, is still subsisting and undissolved. 
A married person is guilty of bigamy, a misdemeanor, if he contracts or purports to contract another m
arriage, unless at the time of the subsequent marriage:
a) the actor believes that the prior spouse is dead
b) the actor and the prior spouse have been living apart for five consecutive years throughout which
the prior spouse was not known by the actor to be alive
c) a Court has entered a judgment purporting to terminate or annul any prior disqualifying marriage
and the actor does not know that judgment to be invalid
d) the actor reasonably believes that he is legally eligible to remarry.

Section 42 - Marriage with a person previously married (of the marriage Act Chapter 251),
provides that;
Any person who, being unmarried, goes through the ceremony of marriage with a person whom he or
she knows to be married to another person, commits an offence and is liable on conviction to
imprisonment for a period not exceeding five years.

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In understanding the provisions of the above sections. The Penal Code Act under Sec 2 interprets
“Husband” to means husband of a monogamous marriage and “wife” to mean wife of a monogamous
marriage likewise “monogamous marriage” means a marriage which is by law necessarily
monogamous and binding during the lifetime of both parties unless dissolved by a valid judgment of
the court.

Bigamy is deemed to have taken place if the following ingredients have been proven.
That there is a subsisting marriage
Goes through a ceremony of Marriage
Participation
That there is a subsisting marriage.
One of the essential ingredients of the offence of Bigamy is the existence of a previously contracted
marriage. It attaches criminality to the act of the second marriage by a husband or by a wife who has a
living wife or husband. The second marriage is void. It is therefore essential to establish the offence of
Bigamy at the time of the second marriage, the person was already married. The first marriage should
be subsisting at the time of the second marriage and should be a validly contracted one. If the first
marriage is not a valid marriage, the second marriage does not amount to bigamy. The first husband or
wife should be a live when the second marriage was contracted.

In the case of R v Tolson (1889) 23 QBD 168:

The appellant married in Sept 1880. In Dec 1881 her husband went missing. She was told that he had
been on a ship that was lost at sea. Six years later, believing her husband to be dead, she married
another. 11 months later her husband turned up. She was charged with the offence of bigamy.

Held:
She was afforded the defense of mistake as it was reasonable in the circumstances to believe that her
husband was dead

The second marriage has to be valid in itself;

In order to attract the provisions of this section, not only the first marriage but also the second
marriage should be a valid one. This means that all the necessary ceremonies required by the personal
laws governing the parties to the marriage should have been dully performed.

In the case of R v Allen (1872) LR / CCR 367:

The defendant was charged with the offence of bigamy under Sec 57 of the Offences Against the
Person Act 1861. The statute states 'whosoever being married shall marry any other person during the
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lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this
section the offence would be impossible to commit since civil law will not recognize a second
marriage any attempt to marry in such circumstances would not be recognized as a valid marriage.
Held:
The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through
a marriage ceremony'. The defendant's conviction was upheld.

The second marriage to be void solely by reason of first husband or wife living:
The offence of bigamy is made out when the second marriage is rendered void by reason of it taking
place during the life of the first wife or husband. It has no application to cases where a second
marriage is permitted under the personal laws governing the parties.

As one of the ways of proving participation is by way of presenting, video recordings, photographs
and practical eye witnesses, proof of marriage certificate and others.

Section 153, of the penal code Act, provides for exceptions where in the contracting of the second
marriage it will not be an offence;

When the first marriage has been declared void by a court of competent court. In the first
circumstance stated in the exception, the previous marriage is not in a subsistence in view of the
fact that it had been declared void by a court of competent jurisdiction, hence one of the essential
ingredients to constitute the offence of Bigamy is absent.

When the former husband or wife has been continuously absent to a period of over seven years
and cannot be heard of as being a live, provided that these facts are disclosed to the person with
whom the second marriage is contracted.

In view of the above section, the law on Bigamy as stated in section 153 of the penal code Act is
designed to uphold the consecrate of the monogamous marriages.

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Reference List:

1) Penal Code Act Cap 120 (Chapter XV Sec 153)

2) Black’s Law Dictionary 09th Edition
3) Offences Against the Person Act 1861 (Sec 57)
4) Marriage Act (Chapter 251 Sec 26 and 41)
5) Decided Cases:
i) R v Tolson (1889) 23 QBD 168
ii) R v Allen (1872) LR / CCR 367
iii) R. v. Lolley, 1812 Russ & Ry 237
iv) R. V. Wheat [1921] 2 K. B. 119

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