Professional Documents
Culture Documents
Hindus have divided human life into four ashrams or stages first is
Bramhacharya (studentship), the second the Grihasta Ashrama (life of
householder), the third the Vanaprastha Ashrama (life of a recluse) and the last
is Sanyasa Ashrama (the life of renunciation)
Monogamy means that one is permitted to have only one wife or one husband
at a time. Bigamy is the reverse of monogamy. Section 5(i) of the Hindu
Marriage Act prohibits bigamy. Section 11 makes a bigamous marriage void
and Section 17 makes it a penal offence for both 1-lindu males and females
under Sections 494 and 495, I.P.C. The offence of bigamy is committed by a
Hindu marrying again during the life time of his or her spouse (wife or husband,
as the case may be), provided that the first marriage is not null and void. If the
subsisting marriage is voidable, then also offence of bigamy is committed. The
offence of bigamy is committed only if the required ceremonies of marriage are
performed. The second marriage cannot be taken to be proved by the mere
admission of the parties; essential ceremonies and rites must be proved to have
taken place. But where a husband had married a woman whose marriage was in
subsistence, his subsequent marriage, in such circumstances, would not be
bigamous, his first marriage being void.
The solemnization of marriage is proved by showing that the marriage was
performed with the proper and essential rites and ceremonies of marriage
prescribed under the law or custom applicable to parties. A prosecution for
bigamy will fail if what is established is that some sort of ceremonies (not the
essential ceremonies as prescribed by law or custom) were performed with the
avowed purpose that the parties were to be taken as married, and it is immaterial
even if it is established that the parties intended seriously to marry and thought
that; the ceremonies performed by them would confer marital status on them. It
is now established that if the second marriage of the accused is declared
void before the prosecution is commenced, no prosecution for bigamy can be
made. The mere intention of parties, however serious, will not make them
husband and wife and the accused will escape prosecution even if he
deliberately performed defective ceremonies. So long as the solemnization of a
marriage depends upon the performance of a ceremony, the law cannot be
otherwise. Two persons cannot be husband and wife by seriously intending
to live and living as husband and wife, if they do not perform the necessary
ceremonies. Similarly, persons who perform bigamous marriage cannot be
guilty of bigamy if they omit, deliberately or inadvertently, to perform the
essential ceremonies of marriage. The solution lies in prescribing one ceremony
for all Hindu marriages, and by providing for registration of marriages. So long
as we recognize all sorts of ceremonies, such things are bound to happen; dupes
may take advantages and innocent persons may become their victims. In the
case of a bigamous marriage, the second wife has no status of wife. But in case
she files a petition for nullity, she can claim both interim and permanent
maintenance. If a husband (or wife) is about to take a second wife (or husband),
the first wife (or husband) can ask for an injunction from the court.
These three clauses of Section 5(ii) are independent of each other. If a case is
covered under any of these clauses, the marriage can be annulled. Under clause
(a) every kind of µunsoundness of mind´ is not covered. The unsoundness of
mind should be such which incapacitates a person from giving a valid consent
to marriage. It need not be persistent or continuous ³unsoundness of mind´. It
may exist just before the marriage. An objection to a marriage on the ground of
mental incapacity must depend on a question of degree of the defect in order to
rebut the validity of a 1arriage which has in fact taken place. The onus of
bringing a case under this clause lies heavily on the petitioner who seeks
annulment of the marriage on the ground of unsoundness of mind or mental
disorder.
‘At the time of marriage’. The words ‘at the time of marriage’ in the clause
are important. It follows from this that where a person subsequent to the date of
marriage becomes an idiot or lunatic, the provisions of this clause are
not attracted. Subsequent lunacy will not affect the marriage nor will the
subsequent recovery serve it.
The Hindu Marriage Act still does not say that a valid consent is necessary for
marriage. That seems to be the position even now. Thus, unsoundness of mind
which incapacitates a person from giving a valid consent to marriage will render
the marriage voidable, but non-consent will not render the marriage void or
voidable.
3. Boy is over 21 and girl is over 18. The bridegroom has completed the age
of twenty one years and the bride the age of eighteen years at the time of
the marriage;
4. The parties are not within the degrees of prohibited relationship unless
the custom or usage governing each of them permits of a marriage
between the two; (Section 3 (g) of HMA goes on to clarify the conditions
under which two persons are said to be within the "degrees of prohibited
relationship).
5. The parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two. (See
Section 3 (f) of HMA)
Punishment
Section 17 says that section 494 (bigamy without concealment - 7yr + fine) and
495 (bigamy with concealment - 10 Yrs + fine) of IPC will apply for bigamy.
Section 18(a): Rigorous Imprisonment which may extend to 2 years or fine upto
one lakh as amended in the year 2007 (by Prohibition of Child Marriage Act,
2006) (under old law 15 days + 1000/-) for contravention of Section 5(iii)
Section 18(b): One month (30 days) or fine upto 1000/- or both for
contravention of Section 5(iv) and Section 5(v)