CONSTITUTION RESEARCH PAPER

NARSEE MONJEE INSTITUTE OF MANAGEMENT STUDIES

KIRIT P. MEHTA SCHOOL OF LAW, INDORE

SUBJECT – CONSTITUTION
SEM 5 ICA - RESEARCH PAPER

TOPIC – BIGAMY UNDER THE LIGHT OF PERSONAL LIBERTY

FROM THE CONSTITUTIONAL PERSPECTIVE

Submitted to: Submitted by:

Dr. Ashutosh Hajela Sir Nupur Jajoo

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CONSTITUTION RESEARCH PAPER

TABLE OF CONTENTS

SR. No. TITLE

1. ABSTRACT

2. INTRODUCTION

3.

EFFECT OF BIGAMY ON
RIGHTS OF WOMEN

4. SHOULD BIGAMY BE
CONSIDERED LEGAL UNDER
THE AMBIT OF PERSONAL
LIBERTY?

5. CONCLUSION

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ABSTRACT

Bigamy is the practice of entering a second marriage when a first marriage is still active.
Bigamy, to put it simply, is when a person marries again when his first marriage is still going
strong. Bigamy is considered a crime in India according to its marital laws if the original spouse
is still living. The second marriage that a person enters into in a situation where the husband or
wife is still living is illegal and has no legal standing; it is referred to as a void marriage.
Although bigamy is legal in India, the practice is nevertheless widespread, therefore there is a
conflict between the law and social custom that leaves second wives with insufficient protection.
India is a hugely diverse country in terms of its cultures. It includes people of many different
castes, religions, and philosophical beliefs. Every citizen of India is intended to be protected by
the constitution. As a result, there are several personal laws that apply to followers of various
religions. The Indian Penal Code is the main legislation against bigamy there, but if any other
personal laws do not specifically include punishment for bigamy or make it unlawful, then no
one can be charged with it. The reach of the right to personal liberty is exceedingly broad and
cannot be contained within the parameters set forth in Article 21[3]. Personal liberty refers to the
liberties and dignity that should be extended to all nationals in order for them to live peacefully
and free from government meddling in their personal affairs. The Article is then said to apply to
both citizens and non-citizens. Personal liberty under Article 21 has a wide scope and wide
interpretation that is, it guarantees a person his personal liberty except procedure established by
law. So under Hindu personal law, bigamy renders the marriage void owing to the object of
protecting the spouse, and to protect the marriage, the object will be sufficed if the bigamy gets
allowed under the ambit of personal liberty.

INTRODUCTION

Before the Hindu Marriage Act of 1955 (the "HMA"), bigamy was not prohibited among Hindus.
Hindu men were always permitted to engage in polygamy, but it doesn't seem that women ever
had this option. The Hindu Marriage Act made an effort to end this patriarchal custom. The

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reality on the ground hasn't changed, though, and Hindu males continue to practice bigamy. To
deal with this problem, it is necessary to incorporate complex clauses.

According to Sections 5 and 11 of the Hindu Marriage Act, bigamy is forbidden. According to
these parts, if either party is married to a spouse who is still alive at the time of the marriage, the
marriage between the two parties is null and void. However, a party must present a petition in
order for the marriage to be declared null and void. Due to their general reluctance to seek legal
assistance due to concerns about possible social shame, women suffer from this position.

Bigamy is illegal under Sections 17 of the Hindu Marriage Act (HMA) and 494 and 495 of the
Indian Penal Code, 1860 (IPC). Despite the fact that bigamy is illegal in India, criminals
sometimes escape punishment due to the absence of clear-cut evidence. Most perpetrators go
punishment because the anti-bigamy provisions of the IPC are non-cognizable. In order to get
around the IPC's rules, the criminals also employ what are supposed to be "legitimate"
technologies. Examples of how the spouses typically try to avoid responsibility include non-
marital cohabitation, staging faulty and partial ceremonies, and feigned conversion to a different
religion.

No one may be deprived of their life or personal liberty, unless in accordance with a legal
process, according to Article 21 of the constitution.

The Maneka Gandhi case represented a significant decision and a turning point for this article.
Article 21 solely protected citizens' rights to life and personal liberty from the executive's
arbitrary actions, not from legislative action. If the State can justify its activity with a legal
legislation, it has the authority to interfere with citizens' freedoms.

However, with the Maneka Gandhi v. Union of India1 case, the situation changed, and now
Article 21 also protects citizens from legislative action. A person's life and freedom could only
be taken away under two circumstances:

 A law must be in place.

 Law must provide a procedure, as long as it is just, equitable, and reasonable.

1
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
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In A.K.Gopalan v. Union of India2, the Supreme Court was asked for the first time to assess
what "personal Liberty" meant.

A.K. Gopalan, a communist leader, was imprisoned in this case pursuant to the Preventive
Detention Act of 1950. The petitioner disputed the legality of his imprisonment under the Act on
the grounds that it violated his right to freedom of movement under Article 19(1) (d), which is
the foundational right to personal freedom protected by Article 21 of the Constitution.

According to the Supreme Court's majority opinion, the term "personal liberty" in Article 21
only refers to freedom from physical restraints, such as arrest and imprisonment without a
warrant. But in the decision of Maneka Gandhi v. Union of India, the Supreme Court expanded
the definition of "Personal Liberty" in addition to overturning the Gopalan case. Justice
Bhagwati pointed that that,

"The term 'personal liberty' in Article 21 has the broadest scope and embraces a number of rights
that together make up a person's personal liberty; some of these rights have been elevated to the
level of independent basic rights and are further protected by Article 19."

Additionally, "The Court should be trying to enlarge the reach and ambit of the Fundamental
Rights rather than attenuating their meaning and content by a judicial construction process"

Due to the societal shame associated with second wives and the legal flaws that exist to protect
them, these women do not receive the required care. These women have endured excruciating
suffering due to marital infidelity for eons, but they have never had any legal protections. To stop
the practice of bigamy in India, it is essential that legislators examine these women's rights and
enact specific legislation for them.

Bigamy is deemed criminal when it occurs while a second marriage is active and the partners are
not informed of the circumstances. Fraudulent behavior occurs when a person marries again
while concealing the knowledge of his prior marriage. Thus, it is forbidden. When a person
enters into a second legally binding marriage after a first, valid marriage, the other partner
forfeits any legal rights to which they were previously married. Additionally, no one would be
denied their legal rights.

2
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
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Personal liberty related to the issue of bigamy under constitution must be interpreted in a wide
way and must consider the protection of women rights and safety, as if either of the spouses
marries the another one in spite of having a living spouse, would suffice the rights and interests
of the first spouse which contravenes the fundamental rights guaranteed under constitution.

EFFECT OF BIGAMY ON RIGHTS OF WOMEN

Due to the patriarchal nature of our society, bigamy has an uneven impact on men and women.
In many communities, polygyny is still common. In addition, unlike polygyny, which is seen as a
privilege and right of men, polyandry in patriarchal societies is seen as a woman's duty to
provide men access to her portion of the bed.

The remedies available to women in situations of bigamy are constrained under the Hindu
Marriage Act. The Supreme Court ruled in Priya Bala Ghosh v. Suresh Chandra Ghosh3 that
the claimant, or the first wife, is responsible for demonstrating the second marriage. In the
current case, the husband was found not guilty, and the wife received no financial recompense.
As was previously indicated, second weddings typically occur covertly, therefore asking the
woman to provide evidence of such a marriage is ludicrous. The rituals of a pluralistic society
were crushed by the Supreme Court in the name of uniformity, which resulted in the exploitation
of women. The rights of the second wife in cases of bigamy are not adequately represented by
the Hindu Marriage Act. Due to the difficulty to establish the validity of the second marriage, the
rights of the second wife in bigamy cases have been disregarded by the courts. If the second
marriage is ruled by the courts to be invalid, the second wife is not entitled to any assistance
unless the husband and wife have been living together for a considerable amount of time. As this
matter has been litigated, the courts' positions have evolved. The second wife in Kulwant Kaur
v. Prem Nath4 was given temporary relief while the courts decided whether the marriage was
valid. Women continue to suffer due to legal loopholes even if the courts have revised their
attitude on the problem of bigamy. If a marriage is declared invalid, the judge may choose to

3
Priya Bala Ghosh v. Suresh Chandra, 1971 AIR 1153.
4
Kulwant Kaur v. Prem Nath, ILR 1972 Delhi 15.
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provide relief to the accused's second wife. The social realities may not be taken into
consideration by the judge while making a judgement. The Hindu Adoption and Marriage Act
must be amended to include a clause granting relief or maintenance to the women who suffered
as a result of the marriage in order to fully solve this problem. The only way to change the way
judges view bigamy cases is to amend both the procedural and the substantive laws.

The court has adopted the position that the second wife is not entitled to support under Section
25 of the HMA in decisions like Savitaben Somabhai Bhatiya v. State of Gujarat.5 The court
ruled that adding a woman who is not legally married to the definition of "wife" will not expand
the reach of the rules. A common legal tactic is to refer to the woman as the housekeeper,
mistress, or "keep" rather than the wife with rights, status, and entitlements.

The statutes' omissions and gaps must be remedied in order to limit judicial overreach in certain
situations. To defend the rights of the women and children who are subjected to the vice of
bigamy, rules relating to the inheritance rights of the second wife and the legitimacy of children
born out of invalid marriages should be established.

The purpose of this article is to evaluate the effectiveness of the laws against bigamy among
Hindus. Bigamous Hindu marriages are prohibited, yet they are nonetheless common in India,
and the law hasn't been able to effectively address the problem. A change in the legislation is
required to end the practice of bigamy since the court's interpretation of the relevant sections has
been unnecessarily severe. By enabling the perpetrators to take advantage of legal loopholes, the
courts have been blind to the dangers faced by women and have reinforced the patriarchal
structure of the country.

International law also offers a broader defense against cruel and humiliating treatment in
addition to the right to be free from violence. No one "should be subjected to torture or to cruel,
inhuman or degrading treatment or punishment," according to Article 7 of the Political Covenant.
Human rights tribunals and courts have recently applied this right to make sure that women's
dignity is respected, protected, and realized, despite the fact that it was historically thought of in
the context of prisoner abuse and torture.

5
Savitaben Somabhai Bhatiya v. State of Gujarat & Others (2005) 3 SCC 636,
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SHOULD BIGAMY BE CONSIDERED LEGAL UNDER THE AMBIT OF

PERSONAL LIBERTY?

Article 21 of the constitution states:

“No person shall be deprived of his life or personal liberty except according to procedure
established by Law”

Regarding personal liberty, it has a very broad meaning and extent that isn't expressed in a clear
manner anyplace. Personal liberty has been added to Part III and Article 21 of the Indian
Constitution. It should be noted that although the Indian Constitution doesn't provide this idea a
specific definition, its broad meaning is rather expansive.

The right to provide redress exists wherever it is observed that human life is being violated on
the basis of social, political, religious, or physical grounds, therefore we cannot argue that
individuals have complete freedom to exercise this right in its truest sense.

- "Procedure established by law" vs. “Due process of Law”

Procedure established by law - In layman's words, it is described as a legislation that is validly

adopted by the legislature and must be observed, given that it upholds proper procedure. This
concept has the authority to revoke anyone's right to life or personal liberty in accordance with
the legal process. Simply put, it indicates that any law that has been lawfully enacted is valid,
even if it goes against the concepts of equity and justice.

Due process of law - It is a doctrine that needs to be examined for effectiveness, justice, and non-
arbitrariness. If a law is not just, fair, and arbitrary, the Supreme Court has the authority to
declare it invalid. This philosophy protects a wide range of personal freedoms. The Maneka
Gandhi ruling significantly broadened the application of Article 21 and established a precedent
in the legal community.

The Supreme Court ruled in the Maneka Gandhi v. Union of India case (1978) that a "procedure
established by law" as defined by Article 21 must be "right and just and fair" and "not arbitrary,
fanciful or oppressive" if it is not, it is not a procedure at all and Article 21's requirements are not

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met. In India, the phrase "procedure established by law" now has the same connotation as the
American phrase "due process of law."

When a person is married to two individuals at once, it is referred to as bigamy. Therefore, it is

known as bigamy when a person who has once been married and whose marriage is still in force
enters a second marriage with a different person. The customary law in many nations with
different legal systems permits a man to have several wives and bans a current wife from
objecting to her husband getting married to a new lady. This practice sees women as less
valuable family members and as having lower status than men.

Bigamy and polygamy place a heavy burden on women. Men continue to marry without formally
divorcing their wives, subjecting them to all kinds of emotional abuse because Muslim law
permits them to maintain a total of four spouses. The case of the basic and human rights of
women being violated is still open. It's a tactic they use to treat their spouses like property.
Additionally, studies have shown that bigamy is associated with greater rates of somatization,
sadness, anxiety, violence, psychoticism, and mental problems. The spouses have also endured a
diminished quality of life, an unsatisfying marriage, a perplexed family structure, and low self-
esteem. All of this is a result of the fact that it is extremely upsetting for a woman to witness her
husband engage in polygamy out of desire or with the intention of procreating more quickly than
Hindus by using Sharia to justify their behavior. When it comes to bigamy, the Hindu marriage
act is appropriate and considerate for both the male and female sides, giving them equal power
and opportunity. To help phase out bigamy, the same needs to be done with other faiths and
traditions. It will be a fantastic step in restoring countless women's ability, safety, and liberty.
The ladies present must support the legislation in taking a strong stance. It must emphasize that
women are not property and have equal rights before marriage, during marriage, and after
divorce. Personal liberty is a wider right available to the people of India, but the bigamy which is
banned under Hindu law, is for the benefit of the spouses, and to protect the rights and interests
of them. If bigamy is allowed, it will violates the fundamental right like right to live with dignity
of the spouses which is guaranteed by the constitution. Hence bigamy should not be legalized
under the ambit of personal liberty.

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CONCLUSION

For a woman, the social shame of becoming a second wife, the lack of a legal status for the
union, and the excruciating pain of being duped into marriage are definitely quite gloomy. Even
though a second wife is not acknowledged, she may still be eligible for support due to the
judicial interpretation of the legislation that was mentioned above. Her possibilities of asserting
her rights are primarily dependent on the judges' judgment since there are no explicit legal
provisions.

Even under criminal law, it might be difficult to establish bigamy because the marriage must
have been legally performed in order to establish the offense. Men typically take use of these
legal loopholes to defend themselves in these situations.

Legislators should adopt clear rules to protect the rights of women who have been tricked into
"second marriages" in light of the background of divergent judicial decisions in order to provide
them with some relief. In cases of bigamy, the wife is typically the injured party, but the courts'
interpretation combined with the law's omissions and gaps disadvantages her. It is crucial that the
legislation be changed in order to reflect the realities of society. Regarding personal liberty, it
has a very broad meaning and extent that isn't expressed in a clear manner anyplace. Personal
liberty has been added to Part III and Article 21 of the Indian Constitution. It should be noted
that although the Indian Constitution doesn't provide this idea a specific definition, its broad
meaning is rather expansive.

The right to provide redress exists wherever it is observed that human life is being violated on
the basis of social, political, religious, or physical grounds, therefore we cannot argue that
individuals have complete freedom to exercise this right in its truest sense. In comparison to
women whose husbands have not taken another wife, those whose husbands have one additional
wife face a significantly higher level of emotional, physical, and sexual abuse. These women
may experience violence as a result of their husbands' second marriage or as a direct cause.
Personal liberty is wider concept but the interpretation of the same along with bigamy must be in
the light of protection of spouses and their fundamental rights.

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