DR.

RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY,

LUCKNOW

SESSION 2022-23
FAMILY I: FINAL DRAFT
TITLE: BIGAMY: EFFECTIVENESS OF SECTION 494 OF THE IPC

SUBMITTED BY: SUBMITTED TO:

NAME: KALPNA DR. SAMREEN HUSSAIN (FAMILY

LAW PROFESSOR)
ENROLLMENT NO.: 210101061
DR. RAM MANOHAR LOHIA
BA LLB (3 SEMESTER)
rd
NATIONAL LAW UNIVERSITY
 TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................3

WHAT IS BIGAMY?......................................................................................................................4

HISTORY OF BIGAMY IN INDIA...............................................................................................5

STATUS OF BIGAMY IN THE HINDU RELIGION...................................................................6

SOCIETAL STATUS OF BIGAMY IN THE HINDU RELIGION...........................................7

LEGAL STATUS OF BIGAMY IN HINDUISM.......................................................................7

RIGHTS OF SECOND WIFE....................................................................................................10

STATUS OF CHILD OUT OF SECOND MARRIAGE- LEGITIMATE OR ILLEGITIMATE

....................................................................................................................................................10

CONVERSION FOR THE PURPOSE OF POLYGAMY........................................................11

STATUS OF BIGAMY IN THE MUSLIM RELIGION..............................................................12

IS POLYGAMY IN MUSLIMS LEGAL IN INDIA?..................................................................12

DO SECTION 494 APPLIES TO MUSLIM MAN WITH MORE THAN 1 WIFE?...............12

WHY POLYGYNY IS ALLOWED BUT POLYANDRY IS NOT IN MUSLIM LAW?........13

UNDER THE SPECIAL MARRIAGE ACT, POST-MARRIAGE CONVERSION...................14

SECTION 494: BIGAMY.............................................................................................................14

The Indian Penal Code, 1860, Section 495................................................................................15

ESSENTIAL ELEMENTS REQUIRED FOR BIGAMY.............................................................15

HAVING BEEN IN A PREVIOUS, VALID MARRIAGE......................................................15

VALIDITY OF SUBSEQUENT MARRIAGE.........................................................................15

THE PRESENCE OF THE SPOUSE FROM A PREVIOUS VALID MARRIAGE................16

Using intent as evidence of a legal marriage.................................................................................16

IS SECTION 494 EFFECTIVE IN ELIMINATING OR PUNISHING THE OFFENDERS?.....17

aiding in the crime of "bigamy".....................................................................................................18

Live-in relationships and bigamy..................................................................................................19

SOLUTIONS TO THE ISSUES RELATED TO BIGAMY.........................................................20

CONCLUSION..............................................................................................................................22

REFERENCES..............................................................................................................................23
 BIGAMY: EFFECTIVENESS OF SECTION 494
OF THE IPC

INTRODUCTION
In any religion in India, Marriages are considered of utmost importance. It is considered the
sacred contract between two persons through which their soul connects to eternity. It holds a
great religious value in Indian culture be it any religion.

With the institution of marriage, various rights and obligations arise and the parties to the
marriage have to perform those duties to each other. If one of the parties fails to perform such
duties the other party can initiate a legal proceeding for such non-performance.

Bigamy is a legal ground on which one can initiate a proceeding against the other party but that
depends on the religion too. Herein, Bigamy includes both polygyny and polyandry.

As stated earlier this depends on the religion as well. In Hindu marriages, Bigamy is strictly
prohibited and if a person has married more than one person when the first spouse is still alive
the person can be booked for bigamy under section 494 of the IPC. Section 17 of the Hindu
marriage act1 also prohibits any kind of Bigamy.

However, in Muslim law, the status of Bigamy is currently debatable. As per Muslim law, the
Muslim man is allowed to have 4 wives which are sort of against Section 494 of the IPC and this
question has been raised in many cases which we will discuss in detail in the project. In Muslim
law, polygamy is allowed by their religion but polygamy cannot be practiced until bigamy is
practiced. Hence it is one of the most debatable topics in the current era. One more thing
problematic herein is the status of women. Polygyny is legal under Muslim law but polyandry is
not. It raises the issue of equality. If polygyny is justified under this law, then so should
polyandry. We will look into this matter in depth as well in the paper.

1
Hindu Marriage Act, 1955 §17 (act number 25 of 1955)
Section 494 of the IPC2 deals with the punishment for Bigamy. But there are certain loopholes in
this section due to which many culprits can easily escape the punishment. We will discuss these
loopholes in detail and would also look into the possible solutions to avoid such problems. We
will also look into the judicial precedent related to Bigamy.

So, in this article, first, we will get to know what is the meaning of Bigamy. After this, we will
look into the history of Bigamy in India. Next, we will look into the status of bigamy under
Hindu law and then into Muslim law with the help of some pronounced judgments. We will also
briefly look into the status of conversion into the Muslim religion for the sole purpose of
Bigamy. Next, we will critically analyze section 494 of the IPC. After this, we will look at some
possible solutions for the issues in section 494 of the IPC, and at the end, the paper will be
concluded.

WHAT IS BIGAMY?
As per the Merriam-Webster Dictionary, the act of Bigamy is defined as the act of entering into
a marriage with one person while still legally married to another. 3 For instance, if A lawfully
marries B and subsequently marries C while his marriage to B is still in effect, A will be held
accountable for bigamy. Nevertheless, these two people are free to wed anybody they want if
the first marriage is deemed invalid for whatever reason. When a couple is going through the
divorce process, neither of them can get married until the divorce is legally final.

Today, bigamy is punishable in many nations since their ideologies are in favor of
monogamy, yet there are certain nations where bigamy is lawful.

Bigamy should not be confused with Polygamy. As suggested by the name Bigamy involves
having two spouses at the same time while Polygamy means having multiple spouses at the
same time. Bigamy is not recognized as a religious practice under any personal law or central
law while polygamy is recognized by various personal laws. Polygamy is backed by religion
while bigamy is not. However, it is interesting to note that polygamy cannot be performed
without practicing Bigamy.

2
The Indian Penal Code, 1860 §494 (act number 45 of 1860)
3
“Bigamy”, Merriam-webster, < (Bigamy Definition & Meaning - Merriam-Webster > (last accessed 25th October
2022)
In polygamy, a man may have several wives or a woman may have multiple husbands.
Polygamy also includes group unions with multiple husbands and wives who have access to
each other sexually. In the Muslim world, polygamy is legal with Islamic approval for a man
to maintain up to 4 wives. Polygamy is still practiced today, although it's more of an anomaly
than a norm.4

HISTORY OF BIGAMY IN INDIA

Bigamy has been practiced in India since ancient times when wealthy merchants and military
groups each had many live spouses. This was accomplished for several reasons, including the
territorial extension of the governing power, the signing of peace treaties, the augmentation of
the territory's exchequer, etc. Except for polygamous marriages, the law of marriage has,
nevertheless, always been predicated on the idea of monogamy dating back to the Manusmriti
era. The texts from Manusmriti, one of the main sources of the Hindu Marriage Act, of 1955,
specifically state that if the wife has a disease, is sterile, is incapable of bearing children, or is of
such a vicious nature that she could be superseded, the husband can marry another woman; the
second marriage will then be regarded as being legally valid. The requirement is that the first
wife must always be more important than the second, and the first wife's firstborn son must take
precedence over the other sons of that husband. A Hindu guy who has previously been married
once is now permitted to remarry without any rationale or his wife's agreement thanks to a
change in the law brought about by the arrival of the British in India.

As time went on, the personal laws of different faiths came to be prioritized, and these laws
contained multiple sections that defined bigamy as a crime. The first of several laws that
recognized and punished bigamy were the Parsi Marriage and Divorce Act (1936), Bombay
Prevention of Hindu Bigamous Marriage Act (1946), and Madras Hindu Bigamy (Prevention and
Divorce) Act (1949).

All Hindus, Buddhists, Jains, and Sikhs must practice monogamy according to the Hindu
Marriage Act of 1955. A Hindu man is guilty of violating Section 494 of the Indian Penal Code,
1860, if he marries another woman while his first wife is still alive. Similar to this, every

4
Difference between Polygamy and Bigamy, Difference Between Bigamy and Polygamy | Compare the Difference
Between Similar Terms, (last accessed 25th October 2022)
marriage that is solemnized by the rules and conditions of the aforementioned Act is banned
from adopting the form of bigamy.

The practice of polygamy is permissible under Muslim personal law, or Sharia law, while the
practice of polyandry is categorically forbidden. However, as per the different interpretations of
the Quran, polygamy was allowed only to remarry the widows who were left behind after their
husbands died in the war but later on this was misused by the men and they started to marry
other women. The women were also not forbidden from having multiple husbands but later on to
have a line of heritage polyandry was forbidden by men. All Muslims are governed by the Holy
Quran, which also says that a Muslim man may marry up to four women at once, but he must be
able to support and care for them. Therefore, it is clear that bigamy is not against the law in
Islam.

A Muslim man who was married under the Special Marriage Act of 1956 would've been guilty
under Section 494 of the IPC if he entered into some other marriage by Muslim Law, as it was
decided in the case of Radhika Sameena v. SHO Habeeb Nagar Police Station 5 in 1996. The
respondent's marriage was declared null and void since his first marriage was performed by the
Special Marriage Act and not Muslim Law. As a result, the Special Marriage Act's requirements
should be used rather than Muslim laws.6

STATUS OF BIGAMY IN THE HINDU RELIGION

Marriage is regarded by Hindu law as a sacrament or "dhramavidhi" in Hindi. "A religious
institution where a man and a woman are united in a permanent partnership for the physical,
social, and spiritual necessity of dharma, reproduction, and sexual pleasure" is the definition of
marriage in Hinduism. It is a link that exists between a man and a woman that goes beyond
physical attraction or childbearing; it is a bond that exists between social groups (families,
friends, etc.), love (spiritual love), obligations, and a lasting bond that exists between a husband
and wife until death. It is a sacred and religious union between a man and a woman, complete
with rituals and ceremonies.7

5
1996 (2) ALD Cri 743
6
RS Gayatri, Section 494 IPC: essential elements and case laws, Section 494 IPC : essential elements and case laws -
iPleaders, (last accessed 25th October 2022)
7
Vijender Kumar, ‘BIGAMY AND HINDU MARRIAGE: A SOCIO-LEGAL STUDY’, Journal of the Indian Law Institute,
OCTOBER - DECEMBER 2017, Vol. 59, No. 4 (OCTOBER - DECEMBER 2017), pp. 356-382
SOCIETAL STATUS OF BIGAMY IN THE HINDU RELIGION
Depending on the type of civilization we are considering, bigamy will have a different social
standing. Bigamy is no longer regarded as something to be proud of in India, but there are still
certain areas where it is still practiced and no one sees it as a problem that has to be resolved.
This is more prevalent in rural regions where people are less educated and more likely to engage
in bigamy for a variety of reasons. Some of the causes include the first wife's infertility, having a
boy with the second wife, etc. This is primarily due to rural regions' lack of knowledge.

Bigamy, or male polygamy, is still tolerated in Hindu society to some extent, while polyandry is
forbidden in Hinduism. Hindu society, whether it be rural or urban, views polyandry as a crime
for which even the death sentence is viewed as a merciful punishment.

Now that we know how bigamy is seen in Hindu society, let's examine how it is viewed legally
in Hindu law.

LEGAL STATUS OF BIGAMY IN HINDUISM

The practice of polygamy was sanctioned by Hindu law from the beginning through 1955. It was
forbidden by a 1948 law in Bombay and a 1949 act in Madras. Females who practice polyandry
are allowed to have many husbands at once. Hindu law did not acknowledge polyandry, even
though it was the norm in various parts of the North and South. ' Now that polygamy and
polyandry have been outlawed, all Hindus must adhere to the monogamous lifestyle. According
to Section 5(i) of the Hindu Marriage Act of 1955 8, neither party may have a spouse who is still
alive at the time of marriage. This is a prerequisite for every marriage.

The Hindu marriage system was altered after the Hindu Marriage Act was passed in
1955. Polygamy was permitted among Hindus before the Act. The polygamous lifestyle was
outlawed by this Act. According to Section 5(i) of the Act, a marriage is only lawful if neither
party has a spouse wedding who is still alive at the time of the. In addition, Section 17 9 of the
Act declares that any union of two Hindus is null and void if, at the time of the wedding, either
party is married or has a spouse alive. Bigamous marriages are nullified by Section 11 and are
punishable by Section 17 for both Hindu men and women under Sections 494 and 495, I.P.C.10
8
Hindu Marriage Act, 1955 §5(i) (act number 25 of 1955)
9
Hindu Marriage Act, 1955 §17 (act number 25 of 1955)

10
BIGAMOUS HINDU MARRIAGES: A CRITICAL ANALYSIS (iralr.in)
A Hindu who marries again while still living with his or her spouse (wife or husband, as the case
may be) and the first marriage is not invalid commits the crime of bigamy. The crime of bigamy
is also committed if the current marriage is voidable. Only if the necessary marital rites are
conducted is the crime of bigamy committed.

Gopal Lal v. the State of Rajasthan11 is an intriguing case that addresses the issue. In this case,
the Supreme Court held that the second marriage was unlawful under section 17 of the Hindu
Marriage Act, it would still be subject to section 494 I.P.C. When a spouse enters into a second
marriage while the first one is still going strong, the spouse would be found guilty of bigamy
under section 494 of the Indian Penal Code if it could be established that the second marriage
was legal in the sense that all legal or customary ceremonies had been performed.

The partners' simple acknowledgment is insufficient to establish the validity of the second
marriage; certain rituals and ceremonies must be established as having occurred. According to
section 5 of the Hindu Marriage Act, the Supreme Court ruled in this case that the Home and
Saptapadi are the mandatory legal requirements for marriage for the parties involved and that
there is no proof that the respondent, who is alleged to have married his second wife Sandhya
Rani, performed these mandatory rituals.

Similar to this, the Supreme Court noted in the case of Priya Bala Ghosh vs. Suresh Chandra
Ghosh12 that to be covered by section 17 of the Hindu Marriage Act, a second marriage must be
held with the appropriate rites. In this case, the accused's admission is not regarded as proof of a
legal marriage; rather, the ceremonies must be proven.

However, if a husband had wed a lady whose marriage was in subsistence, his subsequent
marriage would not be bigamous in such circumstances, his first marriage being null and void."13

The legal and necessary rites and rituals of marriage as provided by the law or custom applicable
to the parties are used to demonstrate the solemnization of the marriage. It is irrelevant whether
or not it is proven that the parties intended to get married and believed that the ceremonies
performed by them would grant them marital status if it is proven that some ceremonies (not the
vital ceremonies as prescribed by law or custom) were performed with the avowed purpose that
11
1979 SCR (2)1171
12
1971 AIR 1153
13
Paras Diwan, ‘Modern Hindu Law’, Allahabad Law Agency, pg. 106-107
the parties were to be taken as married. It is now established that no bigamy case may be
prosecuted if the accused's second marriage is ruled null and void before the case is filed. No
matter how serious the intention of the parties is, they cannot become husband and wife, and the
accused will not be held accountable even if the ceremonies were done improperly on purpose. It
is now recognized that no bigamy case may be prosecuted if the accused's second marriage is
ruled null and void before the case is filed. No matter how serious the intention of the parties is,
they cannot become husband and wife, and the accused will not be held accountable even if the
ceremonies were done improperly on purpose.

In the case of Dr. N.A. In Mukherji v. State14 a doctor was charged with bigamy. Three marriage
ceremonies allegedly took place at three different times: the first was a moon ceremony, the
second involved exchanging garlands in the Kali temple after taking seven steps, simulating
‘saptpadi’15, and the third involved the Guru Granth Sahib, simulating a Sikh ceremony because
the bride was Sikh. The prosecution for bigamy was unsuccessful because the court determined
that performing such fake wedding ceremonies did not constitute legal wedding ceremonies. If
the required rites are not performed, two people cannot become husband and wife by simply
intending to live as such.

The law cannot be different as long as the solemnization of a marriage depends on the
completion of a ceremony. If the required rituals are not performed, two individuals cannot be
legally recognized as husband and wife despite having a sincere desire to live as husband and
wife. Similar to this, those who execute bigamous marriages are not guilty of bigamy if they fail
to perform the necessary wedding rituals, whether on purpose or accidentally. The answer is to
mandate a single registration ceremony for all Hindu marriages and to make marriage
mandatory. As long as we accept all types of ceremonies, incidents like these will inevitably
occur; con artists may use situations, and innocent people may become their victims.16

RIGHTS OF SECOND WIFE.

It may initially seem as though the second marriage in a prima facie case is illegal and void, and
as a result, the second wife has no legal right to maintenance. Supreme However, the Hon'ble
Court ruled in the landmark case of Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu &
14
AIR 1969 All 488
15
Saptapadi: All that you need to know about the seven steps of marriage | The Art of Living India
16
Explanation of Bigamy under Hindu and Muslim Law » Truth and Youth (TAY) Online Mag Journal
Anr (2011)17 that even the second wife has the right to maintenance from her husband.
Additionally, it was decided that the claim for maintenance could not be rejected because the
marriage was genuine.

The respondent Pyla Suri Demudu's second wife, the appellant Pyla Mutyalamma alias
Satyavathi, was involved in the aforementioned case. In 1974, the two parties were wed
according to Hindu customs in a temple. After 25 years of marriage and three children, the
respondent abandoned her. The Andhra Pradesh Trial Court ordered Rs. 500/- as maintenance
after hearing from both sides. However, the respondent appealed, and the Andhra Pradesh High
Court overturned the decision, ruling that the appellant was not entitled to maintenance because
she was the respondent's second wife. The appellant filed an appeal with the Supreme Court after
being offended by the High Court of Andhra Pradesh's decision.

The Supreme Court ruled that regardless of the legality of the marriage, if the second wife was
abandoned by her husband, she would be entitled to support from him under Section 125 of the
Criminal Procedure Code, 1973. In contrast to marriage de jure, section 125 of the Criminal
Procedure Code applies to de facto marriages. Therefore, if other elements of Section 125
Cr.P.C. are met, the legitimacy of the marriage cannot be a basis for refusing maintenance. In
this instance, the Honorable Apex Court upheld the second wife's appeal and reinstated the Trial
Court's ruling awarding her maintenance of Rs. 500.18

STATUS OF CHILD OUT OF SECOND MARRIAGE- LEGITIMATE OR ILLEGITIMATE

The right to inherit the assets of their father will go to the children born outside of the first
marriage. According to the ruling in Revanasiddappa v. Mallikarjun (2011)19, children born
outside of the parents' first marriage are entitled to their father's ancestors' property. Furthermore,
Section 16(3) of the Hindu Marriage Act makes no mention of any limitations on an illegitimate
child's property rights. The only property that is covered by these rights is that owned by the
parents of such illegitimate children. Therefore, such offspring will have a legal claim to their
parents' property, whether it was gained independently or through ancestry.

17
CRIMINAL APPEAL NO. 219 OF 2007
18
Section 494 IPC : essential elements and case laws - iPleaders
19
[2011] INSC 315 (31 M ARCH 2011)
The Supreme Court ruled in Vidyadhari & Ors v. Sukhrana Bai & Ors. (2008) 20 that although
the second marriage is void, the children born of it are entitled to a part of their father's wealth.
Children conceived outside of marriage will still be considered legitimate even if a person
marries again while his previous marriage is still in effect.21

CONVERSION FOR THE PURPOSE OF POLYGAMY

Hindu males began converting to Islam to be allowed to remarry while their first marriage was
still in force since Hindu law firmly forbids bigamy. These men could readily avoid the legal
repercussions resulting from the laws of Hindu laws which punish bigamy since Islam permits
the practice of polygamy.

In the seminal case of Sarla Mudgal v. Union of India (1995) 22, the Hon'ble Supreme Court
addressed the issues of whether or not getting married a second time after converting to Islam
would be regarded as valid, and if not, whether or not that person would be subject to bigamy
charges under Section 494 of the Indian Penal Code, 1860. To address these concerns, the Apex
Court ruled that a marriage between two people that complies with the requirements of one
personal law shall remain governed by that same personal law, even though one of the parties to
the marriage has converted to a different religion. Therefore, the person who changes their faith
and tries to or marries again while their first marriage is still active will be charged with bigamy.
Such people are subject to the legal repercussions outlined in Section 494 of the IPC.

The Sarla Mudgal v. Union of India decision so established that no one may avoid the
obligation of committing the crime of bigamy by just changing to another religion, and the
conversion itself does not release such a person from the precepts of their first lawful marriage.23

STATUS OF BIGAMY IN THE MUSLIM RELIGION

Personal Muslim Law governs marriage in the Muslim faith. Muslim unions are typically
referred to as "Nikah," which is Arabic for "carnal joining." It refers to the contract recognizing
the generations in legalese. Polygamy is sanctioned under Islamic law. So we may conclude that

20
Vidyadhari & Ors vs Sukhrana Bai & Ors on 22 January, 2008 (indiankanoon.org)
21
Section 494 IPC : essential elements and case laws - iPleaders
22
1995 AIR 1531
23
DR. RAJESH S. VYAS, ‘Bigamy: A Socio-Legal Problem and Its Remedies’ International Journals of Multidisciplinary
Research.
bigamy is permitted, but only with a male partner. If a Muslim can treat and respect each wife
equally after marriage, they can marry four women; if not, they can only marry one.

The word "bigamy" would not be accurate to describe the Muslim faith because only
males are authorized to have more than one live spouse here, the women are aware of one
another, and it is legal. Therefore, it would be more appropriate to call it polygamy, therefore
that is how we shall refer to it moving forward.

IS POLYGAMY IN MUSLIMS LEGAL IN INDIA?

In several places and governments, polygamy is still legal. There are no restrictions or
penalties associated with having several wives. Because of their legal systems, Muslim nations
are home to the bulk of these customs and regulations. According to their culture and domestic
law, polygamy is still acceptable and legal.

Only in Muslim-majority countries like Malaysia, Singapore, and India is polygamy

acceptable and legal. These are the only nations that still allow polygamy. Islamist women view
polygamy as a curse. Regardless of whether he may be married for the second or third time,
women in this situation have no right to speak out against the husband.

As a consequence, we can see that within a single faith, polygamy laws differ based on a
person's gender. Polygamy is not a popular way of living.24

DO SECTION 494 APPLIES TO MUSLIM MAN WITH MORE THAN 1 WIFE?

The judiciary is now discussing this issue since this subject is not entirely obvious. Some
HCs, such as Kerala HC, believe that IPC rules apply to all Indian citizens regardless of gender,
and as a result, they will also apply to Muslims as they are also Indian citizens and are subject to
the same laws as Hindus. (Union of India v. Venugopal K.25)

However, certain HCs, like the HC of Gujrat, have varying viewpoints.

"Muslim males who marry according to Sharia law cannot be subjected to the restrictions
of Section 494 of the IPC (remarrying within the lifetime of husband or wife)." Gujarat High
Court issued an order in this regard. It indicates that the IPC would only be valid by the
24
Sayyid Khalid Rashid, Muslim Law, Allahabad Law Agency, EBC Readers.
25
2015 SCC OnLine Ker 798
interpretation given under their in India, legislation and that, until the UCC is applicable all
faiths must be judged according to their law. As a result, IPC Section 494 does not apply to the
persecution of Muslims.26

WHY POLYGYNY IS ALLOWED BUT POLYANDRY IS NOT IN MUSLIM LAW?

Only males are permitted to have several marriages in the Muslim religion, which means that
polyandry is outright forbidden. Even if their husband lives with their other wife, women are
only allowed to have one spouse in their lifetime.

Supporters of polygyny in the Muslim faith have provided a variety of justifications for their
position.

According to Sayyid Khalid Rashid's book Muslim Law in cases where the woman is infertile,
unwell all the time, or unfit for cohabitation, polygamy is acceptable. It has been suggested that
it would be preferable to marry the other woman rather than divorce such a wife because
marriage to the other woman would not present any difficulties for her.27

The book also argues that polygyny is justified by the need to satiate a person's sexual needs.
Men may have various sexual urges, and to satiate them, they require various partners. It would
benefit society since fewer rapes and other sexual assaults would occur.

These arguments are made in favor of polygyny. One question that comes to one’s mind is that if
the aforementioned arguments are valid, the woman may also choose to wed another man if the
husband is sterile, suffers from chronic sickness, or is otherwise unfit for cohabitation since
divorce would be too harsh on small-minded men. This book has justified polygyny as if these
instincts are unique to males only and women don't have any sexual urges.

The aforementioned arguments are unreasonable and ridiculous. There are logical justifications
for why polygamy should be illegal; if it weren't for the illogical argument presented above,
polyandry would likewise be permitted under Muslim law.

UNDER THE SPECIAL MARRIAGE ACT, POST-MARRIAGE CONVERSION

26
Is Polygamy Legal in India? (finology.in)
27
Sayyid Khalid Rashid, Muslim Law, Allahabad Law Agency, EBC Readers
When a marriage is solemnized under the Special Marriage Act and both the husband and the
wife later convert to Islam, the marriage is no longer a marriage in the traditional meaning of the
word and cannot be dissolved according to Islamic law. It may only be terminated by the Indian
Divorce Act's rules. The same rule still holds even if one party alone decides to convert to Islam.
When a Muslim man marries under the Special Marriage Act, the Special Marriage Act must
also govern the restoration of conjugal rights, judicial separation, nullity, and divorce. Such a
person will be considered to have violated this clause if they once more enter into a second
marriage.

SECTION 494: BIGAMY

Section 494 of the Indian Penal Code, 1860 defines bigamy. According to the aforementioned
provision, any person who already has a wife or husband who is still alive and marries another
person while still being legally wed to that wife or husband will be punished with either type of
imprisonment for a term that may last up to seven years, as well as be subject to a fine.
Additionally, such a marriage will always be regarded as invalid.

With specific exclusions from the aforementioned rule, a person who marries another person is
not guilty of bigamy. The following are the exceptions:

1. The aforementioned clause does not apply to someone whose marriage to their spouse from a
previous union has been pronounced null and unlawful by a court with the appropriate authority.

2. The aforementioned clause does not apply to anybody who marries again while their ex-
spouse is still living if that ex-spouse has not been seen or heard from in the past seven years or
if there is no evidence indicating that they are still alive. According to the presumption outlined
in Section 108 of the Indian Evidence Act of 187228, a person who has been missing for more
than seven years is presumed to be dead. When the person marries again, it is assumed that
neither a husband nor a wife is still alive at the time of the marriage, so bigamy is not
committed. The need for this exemption is that the person entering into the second marriage must
before the second marriage occurs, notify the person they are about to marry about the facts of
their prior spouse to the best of their knowledge.

28
The Indian Penal Code, 1860 §494 (act number 45 of 1860)
THE INDIAN PENAL CODE, 1860, SECTION 495 29
Bigamy is a crime that is further discussed under Section 495 of the Indian Penal Code, 1860,
along with the sin of concealment. A person is subject to Section 495 liability if they commit the
crime of bigamy by keeping their first marriage a secret from the person they marry in their
second marriage. Such offenders will be subject to any type of imprisonment for a time that may
last up to 10 years, as well as a fine or both. Additionally, if the person hides the information
about their first marriage, they might be charged with cheating under Section 415 of the IPC.

ESSENTIAL ELEMENTS REQUIRED FOR BIGAMY

According to Section 494 of the Indian Penal Code, 1860, the following must be present for
bigamy to be considered a crime. –

HAVING BEEN IN A PREVIOUS, VALID MARRIAGE

The existence of a previous valid marriage is one of the crucial components in the crime of
bigamy. Because it establishes the presence of a live wife or husband for such a person, the sheer
continuation of a prior valid marriage automatically makes the later union null and void. If the
previous union was not legally recognized, getting married again would not be considered
bigamy.

VALIDITY OF SUBSEQUENT MARRIAGE

The first requirement, that the past marriage must be legal, is clear, but the second requirement is
that the later marriage in issue must likewise be legal. The consenting couple must participate in
all the rites and ceremonies as stipulated by the personal law that will regulate their union. The
second marriage shall be void in itself if it is contracted without adhering to or completing the
necessary ceremonies, so stating that the crime of bigamy cannot be established.

This component may be clearly understood by referring to the 2013 case of Satya Devi v. Khem
Chand, in which the wife accused her husband of bigamy and abuse. However, because she was
unable to demonstrate that her marriage was legally binding, her marriage was deemed invalid
and the second marriage was upheld. As a result, the lawsuit was dropped.

THE PRESENCE OF THE SPOUSE FROM A PREVIOUS VALID MARRIAGE

29
The Indian Evidence Act, 1872 §108 (act number 01 of 1872)
The partner from the first legal marriage must still exist for the second marriage to be declared
invalid. This implies that to annul the later marriage and prove bigamy, the wife or husband of
the person in question from the previous valid marriage must still be alive at the time of the
subsequent marriage. This factor does not apply in situations where successive weddings are
permitted by personal rules like Sharia law, which is important to highlight.

USING INTENT AS EVIDENCE OF A LEGAL MARRIAGE

The Pashaura Singh v. State of Punjab30 case established the criteria for bigamy evidence. The
four assessments were:

 The Accused must have previously been married.

 The defendant had to have remarried.
 The first marriage has to be active.
 The initial spouse must still be alive.

The conditions outlined above make it very evident that bigamy can be committed without
purpose. This legal stance is detrimental to the second wife since it declares the second marriage
unlawful even if the guy planned to get remarried by relying solely on "performing the
rituals." The purpose of the contracting parties is not given precedence by the courts; rather, the
formalities of marriage are.

Even though the husband acknowledged being remarried when a prior marriage was still in
force, the court in Kanwal Ram v. Himachal Pradesh Administration insisted on evidence of
the performance of lawful ceremonies. The husband's intent was overlooked, and he was found
not guilty. Although the crime of bigamy was created to safeguard the rights of women and
prevent the marital harms that this practice brings about, the judiciary has strayed from this goal
to acquit the guilty.

A modification in the law is required to address the issues that might occur as a result of the
literal interpretation of personal law laws. The HMA may solve the problem of proving a second
marriage by adding a provision in Section 17 that makes "intention to marry again" a sufficient
condition. Because second weddings are typically done secretly, it is crucial to incorporate

30
[2009] INSC 1733 (13 November 2009)
intention as a premise for bigamy. Only intimate friends and family of the bride and groom
attend the ceremony. Because of the risk of societal mockery, these weddings are not performed
with all the customary formalities. Therefore, it becomes crucial in these situations to assess the
purpose to verify the validity of the marriage.31

IS SECTION 494 EFFECTIVE IN ELIMINATING OR PUNISHING THE

OFFENDERS?
Section 494 doesn't seem to be very successful since there are several gaps in the law that people
use to commit bigamy and escape punishment. The solemnization of marriage, which is the most
frequently misused provision of section 494, is a necessary component for establishing the crime
of bigamy. It must be established that the first and second weddings were valid and done by the
religious rituals to accuse the spouse of bigamy. These requirements for Hindus are outlined in
Sections 5 and 7 of the Hindu Marriage Act of 1955. At the time of the second marriage, the
spouse must also still be alive. These requirements have been misused in several case laws, and
as a result, the criminals have escaped any punishment under this clause.

In Priya v. Suresh32, the husband (Suresh) wed a second time when Priya, his first wife, was still
alive. When the first wife complained, the husband responded that their first marriage was
invalid because the wife's medical issues prevented them from performing the sacred ceremony
of Saptapadi, and as a result, that marriage was null and void, and the person was free to remarry
without being accused of bigamy. The charge of bigamy was not proven in this case, according
to the court, since certain rituals and rites had to be proven to have taken place for the marriage
to be regarded as genuine under Hindu law.

The legal and necessary rites and rituals of marriage as provided by the law or custom applicable
to the parties are used to demonstrate the solemnization of the marriage. It is irrelevant whether
or not it is proven that the parties intended to get married and believed that the ceremonies
performed by them would grant them marital status if it is proven that some 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. It is now established that no bigamy case may be
prosecuted if the accused's second marriage is ruled null and void before the case is filed. Even
31
BIGAMOUS HINDU MARRIAGES: A CRITICAL ANALYSIS (iralr.in)
32
1971 SC 1153
the most serious of intentions between the parties cannot legally join them as husband and wife,
and the guilty will not be held accountable even if he purposefully carried out improper
ceremonies. (1969) (Dr. A.N. Mukherji v. State 33) The law cannot be different as long as the
solemnization of a marriage depends on the completion of a ceremony. If the required rituals are
not performed, two individuals cannot be legally recognized as husband and wife despite having
a sincere desire to live as husband and wife.

AIDING IN THE CRIME OF "BIGAMY"

Sections 109 and 114 of the I.P.C. make it illegal to help in the commission of
bigamy. Abetment is defined in section 107 of IPC as encouraging someone to do anything,
participating in a conspiracy, or purposefully assisting someone in doing something illegal by an
act or omission. If the abettor is determined to have disclosed relevant facts, then instigation may
include wilful misrepresentation or purposeful concealing of such facts. There can be vitiating
factors. However, helping only entails actions that help the commission.

The Manju Ram Kalita v. State of Assam34 case deals with bigamy and cruelty because of dowry
demands under sections 498-A and 494 of the IPC. The court below made a concurrent finding
of fact on the reality of the second marriage; as a result, the conviction under section 494 is
upheld despite the factual finding of bigamy. None of the witnesses in the prosecution testified
that physical or psychological abuse continued after the years 1993–1997. As a result, the
conviction under section 498-A is thrown out.

Paresh Chaturdas Patel v. State of Gujarat 35 case is related to sections 406, 498-A, 504, and
506(2) in this case, the complaint has made allegations regarding bigamy marriage, and it was
also alleged that the complaint is the petitioner's legally wedded wife and that the petitioner has
remarried with other women since the marriage is in existence. However, the marriage was
solemnized and performed by the law. Therefore, it cannot be claimed that the spouse violated
section 494 of the IPC. Therefore, the court determined that continuing the case against the
petitioner would be pointless.36

33
AIR 1969 All 489
34
(2009) 13 SCC 330
35
Paresh Chaturdas Patel v. State Of Gujarat And Anr | Gujarat High Court | Judgment | Law | CaseMine
36
DR. RAJESH S. VYAS, ‘Bigamy: A Socio-Legal Problem and Its Remedies’ International Journals of Multidisciplinary
Research.
LIVE-IN RELATIONSHIPS AND BIGAMY
In the current world, live-in relationships have greatly increased in acceptance and appeal.
However, because more married individuals are engaging in live-in relationships, this trend is
starting to go south. The wives are unable to establish a bond since the husband hasn't wed the
other lady, which is a problem that usually affects Indian males.

In the 2013 case Indra Sarma v. VKV Sarma37, the Supreme Court outlined the requirements for
establishing a live-in relationship in India. The court listed the following five conditions:

 An unintentionally entered domestic partnership between an adult married man and an

unmarried woman.
 An unintentional domestic partnership is established between a married man and an
unmarried woman.
 An adult unmarried man and a married woman knowingly enter into a domestic
partnership.
 An intentional domestic partnership between an adult, unmarried woman, and a married
man.
 A domestic partnership between same-sex couples is the final option.

The Apex Court's verdict turned out to be a historic judgment that opened the door for live-in
partnerships in India.

In the 2010 case of Khushboo v. Kanniammal38, the appellant was an actress who made certain
comments in a well-known magazine about premarital sex and live-in relationships. As a result,
several criminal cases were brought against her. She then went to court to have these procedures
stopped. The court said that although Indian culture views cohabitation as criminal, it is not
against the law according to the legislation. The court said that sharing a home is a basic human
right.

The appellants in Tulsa v. Durghatiya & Ors. (2008)39 claimed that they were not awarded a part
of any property left by their parents, whose marriage was contested by their competitor
37
AIR 2014 SC 309
38
(2010) 5 SCC 600
39
2008 SCEJ 001 
claimants, who were the case's respondents. The court ruled that live-in partners' children cannot
be referred to as illegitimate. The court also gave these kids property rights.

In the 2004 case Rameshchandra Daga v. Rameshwari Daga40, the appellant's spouse wed a
woman named Usha, with whom he had three children. Girdhari Lal was married to the
respondent's wife, who had never been married before. The respondent's wife claims that the
legal marriage's formalities were incomplete. She consequently requested a divorce, but the court
denied her request. The marriage between her ex-husband and the wife was thus broken up. Later
on, they both got married and had a child. She eventually moved in with her father after leaving
her husband's home due to domestic abuse. She then demanded her husband pay her
maintenance. In addition, the husband argued that his wife's previous marriage had not yet been
dissolved at the time of their second marriage and questioned if their kid was genuine. The
Supreme Court received a cross-appeal from both sides. The court maintained the preservation of
women's rights.

Because there is no valid marriage between the people participating in a live-in relationship, the
law of bigamy does not apply.41

SOLUTIONS TO THE ISSUES RELATED TO BIGAMY

It is an unfortunate reality that many bigamy charges fall short because there is insufficient
evidence that the second marriage was solemnized with the required procedures. It is proposed
that unified legislation be created applicable to members of all groups about the ceremonial
legality of marriage. To put it another way, a law titled the "Ceremonies of Marriage Act" has to
be approved. The following marriage ceremonies may be allowed by law.

(a) The bride and groom should exchange garlands and rings in front of family members,
close friends, and acquaintances (where the total number should not be fewer than five).
They should also ask the elders in attendance for their blessings while wearing their
mantle skirts laced together.

40
AIR 2005 SC 422
41
Bigamy in India: A Detailed Information with relevant Penal Provisions (ipleaders.in)
(b) All parties should have access to a civil ceremony of marriage that follows the Special
Marriage Act of 1954's easy process procedures, and facilities for civil form
solemnization should be made available at all levels.
(c) On payment of a fee of eleven rupees to the marriage officer, a marriage may be
performed anywhere the bride and groom want. Additionally, the parties must offer the
marriage officer complimentary transportation. In the presence of the marriage official
and witnesses, each party should communicate with the other. I "A" accept the "c" to be
my legally recognized wife (or husband"), and at this point, the marriage is legally
consummated and binding on both parties. 
(d) All marriages, regardless of their format, should be required to be registered. All revenue
officers, from the collector to the patwari, as well as all self-governing entities like
municipal corporations, municipal boards, town area committees, village Panchayats, and
all magistrates (of any rank, judicial as well as an executive), should be allowed to keep
marriage registers and be required to enter marriage certificates therein. The marriage
certificate must be signed by the couple, their witness, and the marriage officer, and it
must also be countersigned by the marriage officer.
(e) Every marriage that takes place in a state must be recorded in the state government's
official gazette, for which a fee may be collected from the parties at the time of the
wedding. 
(f) Schools, colleges, and even universities were created specifically for women in the state
to encourage education action of women at all levels and reduce gender bias in the
provision and acquaintance of education. Education also results in a reduction in
inequalities and acts as a means to improve their status among the farmer.
(g) The Mother Teresa Women’s University was founded to promote higher education for
women and their social mobility, as well as to advance women's studies. The government
has been offering a package of concessions in the form of a free supply of books,
uniforms, boarding and mid-day meals, scholarships, free bicycles, and other things to
encourage more girl students, especially from marginalized BPL families, to enroll in
mainstream education. But it is true to claim that bigamy is a very serious felony, and
numerous courts do not take a tolerant stance.
The Supreme Court and High courts imposed harsh penalties on the defendants in the majority of
instances. Given that this clause practically impacts our social order, it is rather amazing that it
has been permitted to remain a cognizable infraction. when it is challenging for a lady or her
family to complain about the spouse. 

As a result, the woman must turn to the law to vindicate her rights and seek redress. Every
woman should always register her marriage if it was solemnized under customary law since
doing so makes it more difficult for the wife and her close family members, especially when the
wife's fall from favor causes both emotional and financial issues.

CONCLUSION
In civilizations where it is legal, bigamy does exist. For instance, bigamy is not prohibited under
the Muslim Personal Law, although the personal laws of Hindus, Parsi, and Christians provide
consequences for the violation. It is generally acknowledged that in a country with diverse
cultures, languages, and religions, people tend to take advantage of the legal loopholes that are
present. For example, there was a case earlier where a man changed his religion to fraudulently
marry and keep two wives at the same time by switching to Islam, where people are permitted to
have four wives at once. Every religion emphasizes love, respect, and support for women and
does not use them as "an instrument of manipulation and exploitation," as has been repeatedly
stated. In recent years, the practice of "Bigamy" has also slowed down significantly. Reductions
in such offenses against women can only result in the creation of an ideal society in which to
live.

There are still a few gaps that need to be closed. The rights and obligations of those living
together are not covered by the bigamy laws. Due to this, married men who are living with
someone else exploit the situation, and the person's wife has no evidence to use against him.
There are still a few gaps that need to be closed. The rights and obligations of those living
together are not covered by the bigamy laws. Due to this, married men who are living with
someone else exploit the situation, and the person's wife has no evidence to use against him.
Despite all of this, bigamy has significantly declined in recent years, and the future appears
promising.
REFERENCES
 R Sai Gayatri, Section 494 IPC: essential elements and case laws, IPleaders, February
16, 2022 Section 494 IPC: essential elements and case laws - iPleaders
 DR. RAJESH S. VYAS, ‘Bigamy: A Socio-Legal Problem and Its Remedies’
International Journals of Multidisciplinary Research.
 Sayyid Khalid Rashid, Muslim Law, Allahabad Law Agency, EBC Readers
 Paras Diwan, ‘Modern Hindu Law’, Allahabad Law Agency, pg. 106-107
 Vijender Kumar, ‘BIGAMY AND HINDU MARRIAGE: A SOCIO-LEGAL STUDY’,
Journal of the Indian Law Institute, OCTOBER - DECEMBER 2017, Vol. 59, No. 4
(OCTOBER - DECEMBER 2017), pp. 356-382
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JUDICIAL DECISION’, Journal of the Indian Law Institute, July-September 1989, Vol.
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 Mst. Summary Munmun, Sadia Afroz Binte Siraj, Polygamy in Bangladesh and Legal
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 Morse, C. (1976). Polygamists and the Crime of Bigamy. International and Comparative
Law Quarterly, 25(1), 229-235. doi:10.1093/clear/25.1.229
 Punishment under Section 494 IPC for bigamy is applicable to all citizens whether they
are Hindu/ Muslim/Christian | SCC Blog (scconline.com)

 Vinisha Jethwani, Explanation of Bigamy under Hindu and Muslim Law, Explanation
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