Section 17 HMA:

Punishment of big am y.-

Any marriage between tw o Hindus solemnized aft er
the
commencement of this Ac t is vo id if at the date of
such
marriage eit he r pa rty had a husband or wif e living; an
d the
provisions of sections 494 and 495 of the Indian Penal Co
de,
1860 (45 of 1860), shall apply accordingly.

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Section 494 IPC:
~rrying again during lj~ time_oLtiusband 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
• • • • • - . - !
Exception. -
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.
Ingredients:
• That the accused spouse had already been married.
• That while the first marriage was subsisting, the spouse
contracted a second marriage.
• That both the marriages have been valid in the sense that
the essential ceremonies, such as Dutta Homa and Saptapadi
required by personal laws governing the parties had been
duly performed.
Section 494 exempts a person in following
situations:
• When the first marriage has been declared void and annulled
by court of competent jurisdiction.
• When the husband or wife has been continually absent for a
period of seven years or more.
• The absent spouse must not have been heard of by the other
party as being alive within tha1t period.
• The party marrying must inform of the fact of absence to the
person whom he or she marries.
• When a valid divorce has taken place according to the law of
the spouse.
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What Courts held:
In Gopal Lal vs State of Raiasthan, Supreme Court said;
When a spouse contracts a second marria~ while the first
marriage is till subsm ing, the spouse becomes guilty of
bigamy u/s 494 IPC only if is proved that the second marriage
was a valid one in the sense that the necessary ceremonies
required by law or custom have been actually performed.
What Courts held:
In Godawari vs State of Maharashtra (1985), Court said;
• Proof of solemnisation of second marriage is must.
• Such proof is also required for first marriage.
• Where the complainant wife filed a complaint regarding the
second marriage of her husband but failed to prove that her
marriage with the husband/accused was legal and valid, it
was held that section 494 IPC was not attracted.
• In this case the question of whether the second marriage
was validly performed did not arise for consideration and
accused could not be held guilty u/s 494 IPC.