INTRODUCTION

The awareness regarding sexual offences against women has been only around few kinds of
sexual offending like rape and sexual abuses or sexual exploitation. Even only rape finds an
express mentioning in the Indian Penal Code, 1860 as the only sexual offence. It finds its
place under the heading sexual offences in Chapter XVI which deals with offences affecting
human body. Obviously there remain other offences which are in essence sexual offence in
the true sense of the term. It has been observed earlier that consent which plays a significant
role in the determination of whether a particular sexual conduct is a sexual offence or not.
Thus there remains an area where sexual access may be gained by the people by inducing a
belief of lawful marriage, in fact when there was no marriage at all in the eye of law. Sexual
access may be gained by going through a fraudulent ceremony of marriage. In either case the
person would gain sexual access and commit sexual intercourse with the women victim who
is unaware of the legality of the marriage.

There remains another area where the victim gives the access to her body to a person without
knowing that he is already married. In all these cases it is always the woman victim losses her
precious thing. In some cases she losses even more than what is lost by a victim of rape. She
losses her virginity, she losses her faith and confidence reposed in the person. In some cases
she is left with the children born to them and the person is releases himself from all
responsibility. In all this cases the elements are common; one her consent in that relation
which legalizes sexual intercourse which was obtained by fraud or deceit and sexual
intercourse which was the intention of the offender. In all this cases she becomes victim
because of her sex and because of the sexual desire of .the offender. The present chapter
therefore would make a through study on the offences which have been kept under in Chapter
XX of the Indian Penal Code, 1860, under the heading offences relating to marriage, and
examine them as sexual. Offences against women where they are essentially a sexual offence.

Every society tries to protect the institution of marriage which besides serving so many
purposes implies sexual intercourse and legalizes it. This being the only legal mode whereby
the civilized society recognizes sexual intercourse between two a person, sexual relationship
outside marriage is criminalized most part of the world leaving certain countries. The
criminal law which was handed to us by the Britisher's now applicable in our country
declares sexual relation outside marriage as an offence though in a peculiar form. But in India
it is applicable with all sorts of its peculiarities.

An attempt has been made to examine the provision from a gender neutral point of view as
well as form the point of view of sexual offences against women. Apart from these the
present chapter examines the present legal policy with regard to the sexual offences relating
to marriage from the socio-economic point of view and consequences of the continuance of
such policy.1

1
Chapter 4 offences against marriage- shodhganga.inflibnet.ac.in

1|Page
Section 494 in The Indian Penal Code : Marrying again during lifetime of
husband or wife
Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife
living, marries in any case in which such marriage is void by reason of its taking place during
the life of such husband or wife, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to fine.2
Bigamy Defined Marrying again during the lifetime of husband or wife is an offence under
our Penal Code. Section 494 of the Indian Penal Code 1860, therefore, contemplates that
whoever, having a husband or wife living, marries in any case in which such marriage is void
by reason of its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine. However this section does 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 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 the time, provided the person contracting such subsequent marriage shall, before
such marriage takes place, inform the person with whom such marriage is contracted of the
real state of facts so far as the same are within his or her knowledge. Section 495 of the
Indian Penal Code,1860 says that whoever commits the offence defined in section 494,
having concealed from the person with whom the subsequent marriage is contracted, the fact
of the former marriage shall be punished with imprisonment of either description which may
extend to ten years; and shall also be liable to fine.

It may therefore, be said that any person, who having a husband or wife living, marries
another in any case in which such marriage would be void by reason of its taking place
during the life time of such wife or husband, commits the offence of bigamy and shall be
punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine. The scope of the section is comprehensive and it is
applicable to members of all communities living in India, for instance, for Hindus, Christians,
Parsis, and Muslim women; except Mohammedan males, who may marry and have up to four
wives at a time according to the Muslim Personal Law. It is also to be noted that there must
be at the time of second marriage a previous valid and subsisting marriage. If the first
marriage is not a valid marriage, no offence is committed by contracting a second marriage.
Section 495 is an aggravated form of the offence of bigamy. Where there is concealment of
the fact of a former marriage from the person with whom the subsequent marriage is
contracted; the punishment under section 495 may extend up to ten years of imprisonment
and fine.3

Exception 
2
Section 494 in the Indian Penal Code- Indian Kanoon – www.indiankanoon.org
3
Bigamy ( S 494 IPC) S 17 Hindu Marriage Act SCC Blog – www.scconline.com

2|Page
This section does 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
provided the person contracting such subsequent marriage shall, before such marriage takes
place, inform the person with whom such marriage is contracted of the real state of facts so
far as the same are within his or her knowledge.4

Object of Section 494

The object of enacting the Section 494, is to punish persons who in defiance of the law
applicable to them in matters of marriage and divorce, etc. take a second spouse during the
existence of the first.

Essentials5
(i) The accused must have contracted the first valid marriage
The first essential element of the offence of bigamy under Section 494, is a valid marriage
entered into by accused prior to the alleged bigamous marriage; thus, an indictment for
bigamy cannot be sustained where the prior marriage relied on was void. If the prior marriage
took place in another State or country, it must be valid by the laws of that State or Country;
and if the prior marriage was valid in the State or Country where it was celebrated, its validity
in the country where the second marriage is celebrated is a question of no importance.
If the marriage is not a valid one according to the provision of law applicable to the parties,
no question of its being void by reason of its taking place during the lifetime of the husband
or wife of the person marrying can arise. If the second marriage is not a valid marriage, it is
no marriage in the eye of the law.
In order to find out what marriage is void for the purpose of Section 494, it is necessary to
refer to Section 5 of Hindu Marriage Act, 1955, which makes the second marriage void in
certain cases, The first condition referred to in the section is that neither party has a spouse
living at the time of marriage. Section 11 of the Hindu Marriage Act, 1955, declares marriage
which has been solemnized in contravention of section 5(1) shall be void. Section 17 of the
Hindu Marriage Act, 1955, which is material in this respect reads as follows :
'Any marriage between two Hindus after the commencement of the Hindu Marriage Act,
1955, is void if on the date of such marriage, either party had a husband or wife living and
provisions of Section 494 and 495, Indian Penal Code, 1860, shall apply accordingly'.
It will thus be been that this section lays down two things First, when a person remarries after
the commencement of the Hindu Marriage Act, 1955, if on the date of the marriage he or she
has a spouse living of the earlier marriage, such marriage is void; and secondly, the
provisions of Section 494 and 495, Indian Penal Code, 1860, shall apply accordingly to such
marriages. The Hindu Marriage Act, 1955, now enforces monogamy.

(ii) He must have married again

A subsequent marriage, or, more accurately, subsequently going through a form of marriage,
is essential to the offence under Section 494. A subsequent marriage is an indispensable
element of the offence of bigamy, or in other language, alone constitutes the offence, such
marries is, of course, always void.
The offence of bigamy is directed against the second marriage. The second marriage,
therefore, must be legally valid marriage so as to come within the mischief of Section 494.
4
Section 494 in the Indian Penal Code- Indian Kanoon – www.indiankanoon.org
5
Bigamy ( S 494 IPC) S 17 Hindu Marriage Act SCC Blog – www.scconline.com

3|Page
Prosecution is under an obligation to satisfactorily establish by evidence that the second
marriage has been solemnized in accordance with law or custom which is applicable to the
parties.
The word 'Solemnize' means in connection with a marriage' to celebrate the marriage with
proper ceremonies and in due form.
The law prohibits and makes punishable a husband who marries for the second time during
the life time of the first wife. It is a settled principle of law that in order to attract the penal
provision of Section 494, it must be shown that the subsequent marriage was solemnized
upon due performance of the essential ceremonies upon which only a marriage becomes a
valid marriage.
If the first marriage is valid, it would be bigamy to marry again, While it is not necessary, in
order to attract the provision of Section 494, to prove that the second marriage was legally
valid (i.e., without any legal impediments), it is necessary to prove that the accused went
through some form of marriage which, but for the existence of the impediment of the first
marriage, would have been recognized as marriage, valid in form by the law, under the form,
of which it was celebrated.45 In other words, in order that an offence under Section 494, may
be committed, it is necessary, at least, that all the ceremonies, which are necessary to be
performed in order that a valid marriage may take place, ought to be performed and,
ordinarily, all these ceremonies would amount to a valid marriage but for the fact that the
marriage becomes void on account of the existence of a previous wife.

(iii) The First marriage must be subsisting

The first spouse must be alive at the time of the second marriage, to the knowledge of the
accused. If the prior marriage was dissolved, as by divorce or annulment, before the second
took place, there is no bigamy, but a fraudulent or otherwise ineffectual divorce is no defense.
Since the prior marriage must be still subsisting, the first husband or wife must be alive at the
time of the second marriage. Accused has been required to have knowledge that the first
spouse is still alive, and the requirement of such knowledge has been incorporated in the
definition of bigamy. Section 494, Indian Penal Code, 1860, makes no reference to intention,
knowledge, fraud or deceit but constitutes the mere contracting of the second marriage a
crime.

(iv) The spouse must be living

It must be shown that the husband or wife is alive at the date of the second marriage.

(v) Both the marriages must be valid

The Supreme Court has observed that prima facie, the expression 'whoever'… marries' must
mean 'whoever…. marries validly', or 'whoever--- marries and whose marriage is a valid one.
If the marriage is not a valid one, according to the law applicable to the parties, no question
of its being void by reason of its taking place during the life of the husband or wife of the
person arises. If the marriage is not a valid marriage, it is no marriage in the eye of the law.
The word 'solemnize' means 'to celebrate the marriage with proper ceremonies and in due
form'. Unless the marriage is 'celebrated or performed with proper ceremonies and due form
it cannot be said to be 'solemnized'. It is essential for the purpose of Section 17 of the Hindu
Marriage Act, 1955, that the marriage to which Section 494, applies on account of the
provisions of the Act, should have been celebrated with proper ceremonies and in due form. 6
Merely going through certain ceremonies with the intention that the parties be taken to be
married, will not make the ceremonies prescribed by law or approved by any established
custom. Where both sides agreed that according to the law prevalent amongst them homa and
6
Chapter 4 offences against marriage- shodhganga.inflibnet.ac.in

4|Page
saptapadi were essential rites to be performed for solemnization of the marriage and there
was no specific evidence regarding the performance of these essential rites in regard to the
second marriage, it was held that the charge under Section 494, could not be made out.

Exception7
The exception extend to any person whose:
(1) the first marriage having been declared void by a court of competent jurisdiction; and
(2) seven years 'absence on the part of a spouse in a manner not heard of by the other party
person as being alive within that time provided the person contracting such subsequent
marriage shall, before such marriage takes place, inform the person with whom such marriage
is contracted of the real state of facts so far as the same are within his or her knowledge.

Conversion and Bigamy

In Sarla Mudgal v. Union8 of India, after considering a number of decisions on the point, the
Supreme Court held that the second marriage of a Hindu husband after embracing Islam is
violative of justice, equity and good conscience. Such marriage would also be void and attract
the provision of the Section 494.
The Court observed : Since it is not the object of Islam nor is the intention of the enlightened
Muslim community that the Hindu husbands should be encouraged to become Muslim merely
for the purpose of evading their own personal law by marrying again, 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 law.
As regards the logic by which a married non-Muslim's second bigamous marriage contracted
after conversion to Islam could be treated as void under the Hindu Marriage Act, 1955, the
court observed as follows :
It is, no doubt correct that the marriage solemnized by a Hindu husband after embracing
Islam may not strictly be a void marriage under the Act because he is no longer a Hindu, but
the fact remains that the said marriage would be in violation of the Act which strictly
professes monogamy. The expression 'void' for then purpose of the Act has been defined
under Section 11 of the Act. It has a limited meaning within the scope of the definition under
the section. On the other hand the same expression has a different purpose under Section 494,
Indian Penal Code, 1860, and has to be given meaningful interpretation. The expression 'void'
under Section 494, Indian Penal Code, 1860, has been used in the wider sense. A marriage
which is in violation of any provisions of law would be void in terms of the expression used
under Section 494, Indian Penal Code, 1860. A Hindu marriage solemnized under the Act can
only be dissolved on any of the grounds specified under the Act. Till the time a Hindu
marriage is dissolved under the Act none of the spouses can contract second marriage.
Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage
under the Act. The second marriage by a convert would therefore be in violation of the Act
and as such void in terms of Section 494, Indian Penal Code, 1860.
Any act which is in violation of mandatory provisions of law is per se void. The real reason
for the viodness of the second marriage is the subsisting of the first marriage which is not
dissolved even by the conversion of the husband.
It would be giving a goby to the substance of the matter and acting against the spirit of the
state if the second marriage of the convert is held to be legal.

7
Chapter 4 offences against marriage part 13- shodhganga.inflibnet.ac.in
8
AIR 1995 SC 1531

5|Page
The court further observed that the second marriage of an apostate-husband married under the
Hindu Marriage Act, 1955, would be in violation of the rules of equity, justice and good
conscience, as also those of natural justice. The Supreme Court concluded that :
The interpretation we have given to Section 494, Indian Penal Code, 1860, would advance
the interest of justice. It is necessary that there should be harmony between the two systems
of law just as there should be harmony between the two communities. The result of the
interpretation, we have given to Section 494, Indian Penal Code, 1860, would be that the
Hindu law on the one hand and the Muslim law on the other hand would operate within their
respective ambits without trespassing on the personal laws of each other9.

Section 495 in The Indian Penal Code : Same offence with concealment of
former marriage from person with whom subsequent marriage is
contracted10
According to section 495 of Indian penal code, Whoever commits the offence defined in the
last preceding section having concealed from the person with whom the subsequent marriage
is contracted, the fact of the former marriage, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
The sole point of difference between Section 495, Indian Penal Code, 1860 and the next is the
concealment of the accused's previous marriage from the person with whom he goes through
the form of the second marriage. It is not necessary that the concealment should have affected
the consent given to the second marriage, nor, indeed, is its operation upon the mind of the
other at all material, the only point material being that he had concealed the fact of his
previous marriage. But this fact could not be lost sight of in awarding punishment. For, if the
non-disclosure was immaterial it may have been equally unintentional, and if unintentional
there was no intention to deceive, and deception is its underlying principle.
The authors of the Penal Code have justified the making of the punishment more severe by
illustrating the difference made in the case where, in contracting a subsequent marriage is
contracted. They observed : The act which in the English Law is designated as bigamy is
always an immoral act. But it may be one of the most serious crimes that can be committed. It
may be attended with circumstances which may excuse though they cannot justify it.
We have therefore proposed that a man who deceives a woman into believing herself his
lawful wife when he know that she is not so and induces her under that persuasion, to cohabit
with him, should be punished with great severity. There are reasons similar, but not exactly
the same, for punishing a woman who deceives a man in to contracting with her a marriage
which she knows to be invalid. For this offence we propose a punishment which, for reasons
too obvious to require explanation, is much less severe than that which we have provided for
a similar deception practiced by a man on a woman'.
The authors of the Code intended to punish with greater severity only the man who deceived
a woman. But the Section 495, as it stands applies to either party.

Scope and Object of Section 49511

9
Bigamy ( S 494 IPC) S 17 Hindu Marriage Act SCC Blog – www.scconline.com
10
Section 495 in the Indian Penal Code- Indian Kanoon – www.indiankanoon.org
11
Chapter 4 offences against marriage part 02- shodhganga.inflibnet.ac.in

6|Page
Section 495 is an aggravated form of offence deal with in the previous Section 494. It applies
where the offence is committed and the marriage is contracted concealing the fact of prior
marriage.
Section 495 provides a higher penalty when the fact of the former marriage is concealed from
the person with whom the subsequent marriage is contracted.
Essential ingredients of Section 495
To constitute an offence under this Section, the following essential ingredients must exist :
1) The accused had already been married to some person;
2) The said marriage was legal;
3) The person to whom the accused was married was alive;
4) The accused married another person;
5) The accused when marrying the second time concealed from the person whom the accused
married the fact of the first marriage.

Punishment  
Any person liable for an offence under this section shall be punished with imprisonment of
either description for a term which may extend to 10 years and the offender shall also
be liable to a fine.

Offence Punishment Cognizance Bail Triable By

Concealment of Imprisonment Non- Bailable Magistrate of
the fact of upto 10 years Cognizance the first class.
former marriage along with a
from the person fine.
with whom
subsequent
marriage is
contracted.

Bigamy by Deceit
Section 495, Indian Penal Code, 1860, merely prescribes an enhanced punishment for the
offence of bigamy when it is committed by a person who conceals from the other person with
whom he contracts the second marriage the fact of his previous marriage. Now, since the
offence is in essence bigamy it follows that all the elements necessary to constitute that
offence must be present here also. For instance, of the two marriages, the previous marriage
must have been a valid marriage, and a marriage which was known to be a subsisting at the
time of the second marriage. If, therefore, the previous marriage was invalid, or had been
lawfully dissolved, its nondisclosure is wholly immaterial, for the second marriage being
valid there is no offence of bigamy, and except in a prosecution for bigamy the fact of such
non-disclosure is immaterial.
 Concealment of the former marriage : Again, the Section 495, Indian Penal Code,
1860, punishes for a concealment of the fact of the former marriage, only when that
marriage offers an impediment to the validity of the subsequent marriage.
Consequently, a person belonging to a polygamous race, such as, for instance, a
Mohammedan would, ordinarily, be under no obligation to inform the fact of his
previous marriage to his subsequent spouse though in such a case he may incur other
penalty for his non-disclosure.

7|Page
  Length of separation from the husband : The question whether the gravity of this
offence depended upon the length of separation from the husband, or the wife.
 Proof : The points requiring proof are the same as those required to prove an offence
under Section 494, Indian Penal Code, 1860, - except one point addition to which,
prove –
1. That the accused had already been married.
2. That such marriage was legal.
3. That the person with whom he was married was still alive.
4. That the accused married another person.
5. That such subsequent marriages was void by reason of it taking place during the
life of the first consort. Addition point to which, prove –
6. That the accused had, before his second marriage, concealed from his spouse the
fact of this previous marriage.

It is well settled law that admission of marriage by accused is not evidence of it for the
purpose of proving marriage in adultery and bigamy case. In Kanwal Ram v. Himachal
Pradesh Administration12, there was an admission in some other proceeding wherein the
accused had made a statement. But if the admission of the marriage is in the same proceeding
it is evidence of the marriage.

Section 496 in The Indian Penal Code : Marriage ceremony fraudulently

gone through without lawful marriage13
Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being
married, knowing that he is not thereby lawfully married, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine.

The section contemplates dishonest or fraudulent intention on the part of the offender. With
such intention the offender must go through the ceremony of being married. While doing so
the offender must have knowledge that he or she, as the case may be, is not thereby lawfully
married.

Essential ingredients of Section 496

The essential ingredients of Section 496 are:

i) The accused went through the form of marriage

ii) He knew that he was not lawfully married.

iii) He went through the form of marriage dishonestly or fraudulently

No Court shall take cognizance of an offence punishable under Section 496 except upon a
compliant made by some aggrieved by such offence. If the complaint is filed by the first wife,

12
AIR 1966 SC 614: 1966 Cri LJ 472 (SC)
13
Section 496 in the Indian Penal Code- Indian Kanoon – www.indiankanoon.org

8|Page
the offence falls under Sections 494 and 495 (Bigamy). The first wife is not entitled to file
complaint under Section 496.

Only the deceived girl or her parents shall have to file the complaint under Section 496. This
offence is non-cognizable, and warrant should ordinarily issue. It is bailable, non-cognizable
but not compoundable and is triable by the Magistrate of the first class. However, in Andhra
Pradesh, the offence is cognizable, non-bailable.

The penalty under this section is the same as that under section 494 for bigamy. Mock
marriage, or a show of marriage, with dishonest or fraudulent intention where the offender
knows that no lawful marriage has taken place has been punished by the section.

Where in a case under this section the trial had gone for about seven long years, the accused
had become insolvent as a result of the same, considerable mental agony was caused to him
during all these years, the first wife who was the real aggrieved party had passed away and
the second wife had to bear a lot of suffering during these years without any fault on her part,
it was held that the sentence already undergone by him was sufficient punishment to him.

One of the parties to the marriage makes to believe the other party that the marriage between
them is valid, even though it is not a valid marriage. The deceived party innocently believes
that their marriage ceremony is lawful. The offence is that the wrong-doer intentionally,
dishonestly and fraudulently makes to believe that other party to the marriage that their
marriage and marriage ceremony are lawful.

In Kailahs Singh v. State of Rajasthan (1992 Cr LJ 1005 Raj), the accused was a married
person. He induced a girl saying that he was unmarried. The parents of the girl also believed
his words.They gave dowry and arranged marriage between the accused and their daughter.
At the time of the marriage ceremony the parents came to know the fraudulent act of the
accused. The deceived girl complained the matter to the police. The court committed the
accused under Section 496.

In Prasanna Kumar v. Dhanalaxmi [1989 Cr LJ 1829 (Mad)], the accused married for the
second time during the pendency of special appeal against decree of divorce in violation of
Section 15 of the Hindu Marriage Act but without concealing the fact of pendency of the
appeal from the girl or her parents, it was held that no conviction could be entered under
Section 496 IPC as the act of the accused was neither dishonest nor fraudulent14.

Differences Between 494, 495, 49615

14
Chapter 4 offences against marriage part 02- shodhganga.inflibnet.ac.in

15
Chapter 4 offences against marriage part 02- shodhganga.inflibnet.ac.in

9|Page
  Section 493 and 496
Section 493 and 496 The two sections are somewhat alike ; the difference appears to be that
u/s. 493 deception is requisite on the part of the man, and cohabitation or sexual intercourse
consequent on such deception. The offence u/s. 496 requires no deception, cohabitation, or
sexual intercourse as a sine qua non, but a dishonest or fraudulent abuse of the marriage
ceremony. In the latter case the offence can be committed by a man or woman, in the former,
only by a man.

 Section 494 and 496

Section 494 and 496 An offence u/s. 494 is different from an offence u/s. 496, IPC. If the
accused intends that there should be valid marriage and honestly goes through the necessary
ceremonies during the lifetime of the other spouse, then it may be a case u/s. 494, IPC., but if
the accused only intends that there should only be a show of marriage and dishonestly and
fraudulently goes through the marriage ceremony knowing fully well that he is not legally
married thereby, then it is an offence u/s. 496 IPC.

Similarities between 494 & 49516

 Sections 494 and 495

Sections, 494 & 495 of the Indian Penal Code 1860 is applicable to members of all
communities living in India, for instance, for Hindus, Christians, Parsis, and Muslim women;
except Mohammedan males, who may marry and have up to four wives at a time according to
the Muslim Personal Law. The expression in section 494 of the Code that "whoever, having a
husband or wife living, marries in any case in which such marriage is void by reason of its
taking place during the life of such husband or wife," makes it dependent on the personal
laws of the parties. Consequently it discriminates between different communities. The result
is that it is applicable to all with the exception of Mohammedan males.

CONCLUSION
The offence of bigamy punishable under Sections 494 and 495, Indian Penal Code, 1860,
materially differs from the corresponding rule of English law, under which monogamy being

16
Chapter 3 offences against marriage part 10 - shodhganga.inflibnet.ac.in

10 | P a g e
the universal practice, the rule is simpler. But under Section 494, Indian Penal Code, 1860 the
criminality of the second or subsequent marriage depends upon the practice of the caste or
race to which the accused belongs. If polygamy or polyandry was sanctioned by usage, one
could not be convicted for doing an act in conformity with custom – nor could the law
enforce monogamy upon people with the same assurance as the abolition of sati, since the
one is by no means as serious as the other.

There is a lacuna in Section 494, Indian Penal Code, 1860, which prohibits bigamy.
Whenever a man is charged for having contracted a second marriage within the life time of
the first wife, the defence is that his first marriage was void. In fact, once the first marriage is
consummated, the defence that first marriage was void must be statutorily barred. To do
gender justice, this is the next inevitable step.

Bigamy is a serious offence and no leniency should be shown. However, while awarding
sentence, the court may take into account facts and circumstances of the case, such as, fact of
irretrievable break down of first marriage; fact of birth of a child by second wife; long lapse
of time between the marriage and final disposal of the case; the fact that the accused is
merely an abettor, etc.

In Sarla Mudgal and Lilly Thomas the court expressed its distress over the Governments
failure in enacting a uniform civil code to end discrimination among various religious
communities in the areas of marriage, succession and property and observed that such a code
would help in removing contradictions based on religious ideologies and such matters of
secular characters cannot be brought within the guarantee enshrined under Articles 25 and 26
of the Constitution of India.

The Supreme Court of India settled the law once for all in its Sarla Mudgal ruling of 1995
affirmed in Lily Thomas case of 2000. We are in complete agreement with the thinking of the
Supreme Court. The verdict that a married non-Muslim even on embracing Islam cannot
contract another marriage without first getting his first marriage dissolved is undoubtedly in
conformity with the letter and spirit of Islamic law on bigamy.

Therefore, the offence of bigamy should be made cognizable offence and the
recommendation of Malimath committee on reforms of criminal justice system should be
adopted by making a suitable amendment in Section 494 and 495, Indian Penal Code, 1860
and in the Code of Criminal Procedure, 1973, it would certainly curb the offence of bigamy.
Most of the times the women are simply deserted, left to fend for themselves and their
children.

11 | P a g e
 BIBLIOGRAPHY

BOOKS:-
 “K.D. Gaur”, ‘Textbook on The Indian Penal Code’, Universal Law Publishing
Company, 4th Ed., 2015
 Bare Act, The Indian Penal Code as amended by The Criminal Law( Amendment)
Act, 2013, Universal Law Publishing, 2016

WEBSITES:-
 Chapter 4 offences against marriage- shodhganga.inflibnet.ac.in
 Section 494 in the Indian Penal Code- Indian Kanoon – www.indiankanoon.org
 Bigamy ( S 494 IPC) S 17 Hindu Marriage Act SCC Blog – www.scconline.com

 Section 495 in the Indian Penal Code- Indian Kanoon – www.indiankanoon.org

 Chapter 4 offences against marriage part 02- shodhganga.inflibnet.ac.in

 Section 496 in the Indian Penal Code- Indian Kanoon – www.indiankanoon.org

 Chapter 3 offences against marriage part 10 - shodhganga.inflibnet.ac.in

12 | P a g e