TUTORIAL UUUK2063 UNDANG-

UNDANG JENAYAH II
Question 1: Is it illegal to marry
again while a husband or wife is still
alive? Evaluate relevant cases and
legislation.

Malaysia is a country which upholds
monogamous marriage.(S5-7 LRA)
Therefore, it is not allowed for any
Malaysian to marry more than one
person at a time (except Muslims
which could practice polygamous
marriage with permission from
Syariah Court, but if without
permission still punished under
Section 123 of Islamic Family Law
(Federal Territory) Act 1984, not
under Penal Code or LRA)
Section 7 (1) of the Law Reform (Marriage and
Divorce) Act 1976:
“Any person lawfully married under any law,
religion, custom or usage who during the
continuance of such marriage purports to contract a
marriage under any law, religion, custom or usage in
contravention of section 5 shall be deemed to
commit the offence of marrying again during the
life-time of husband or wife, as the case may be,
within the meaning of section 494 of the Penal
Code.”
 BIGAMY
Penal Code Section 494: Marrying again during the 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 and whether such
marriage has taken place within Malaysia or outside Malaysia, shall be punished with
imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Exception- It’ll not be applicable on two circumstances:

(i) the marriage has been declared void by a court
(ii) if the former husband/wife had gone missing for seven years, and the other party in the
new marriage has knowledge of such fact.
 Elements of Bigamy
A prior marriage must exist and the marriage
must be lawful
The spouse from prior marriage must exist
Subsequent marriage must be valid
Subsequent marriage can take place either in
Malaysia or outside Malaysia
 Validity of subsequent marriage
- The couple willing to marry must take part in all the mandatory rituals and ceremonies as required in
the personal law that governs their marriage. In case the subsequent marriage is contracted without
following or performing the required rituals then it shall be void in itself which in turn declares that the
offence of bigamy cannot be constituted.

Kanwal Ram And Ors vs The Himachal Pradesh Admn 1966 AIR 614
- Supreme Court of India: In a prosecution for bigamy, the second marriage had not only to be proved as
a fact, but it must also be proved that the necessary ceremonies had been performed. Held: In bigamy
case, the second marriage, as a fact, that is to say, the ceremonies constituting it, must be proved. The
admission of marriage by the accused is not evidence of it for the purpose of proving the marriage in an
adultery or a bigamy case.
 Validity of subsequent marriage
Amaliammal vs Rayarswami And Ors 1983 CriLJ 1719
- Appellant (the legal first wife) and the first accused (husband) are Catholics. The husband
had admitted that he had contracted a second marriage with the second accused (second
wife), thus committing the offence of bigamy under S494. Issue: whether there was a valid
second marriage, because it was done in Hindu form while the husband is still a Catholic,
but the appellant contended that the husband had already coverted his religion into
Hinduism.

Held: Referring to Kanwal’s case, mere admission by the husband that he contracted a
second marriage is not enough to satisfy necessary ingredients to establish the offence of
bigamy under S494. Furthermore in this case there is no evidence to show that a valid
second marriage has been performed as the husband is a Catholic but the second marriage
was performed according to Hindu rites. Appeal dismissed.
 Taken place within Malaysia or outside Malaysia
- PP v Rajappan [1986] 1 MLJ 152
- Respondent is a Malaysian PR (consider having Malaysian domicile). He married with his first wife
according to Hindu Custom in India in 1947 , and he migrated to Malaysia with his wife and children In
1954 . Then, the marriage was registered with the Registrar of Marriages, Malaysia.

- In March 1984 the respondent went to India and married with another woman whilst still being married
to his first wife. Two months later, the respondent brought the second wife back to Malaysia to live with
her together in Klang.

- Federal Court had held that the respondent’s bigamous marriage in India during 1984 cannot be punished
under S494 of the Penal Code and the marriage did not violate S5, S6 and S7 of the LRA because
bigamous marriage was not an extra-territorial offence at that time. As such ever since the case, S5, S6 and
S7 of LRA and S494 of Penal Code was amended, whereby it is now an offence to marry bigamously no
matter the marriage was done in Malaysia or outside Malaysia.
 Bigamy by conversion- Sarla Mudgal vs Union Of India & Ors
1995 AIR 1531
- Involved four petitions with the same matter: husband converted to Islam and marry second time while
still remained married to the first wife
- Issue: If a party converts to Islam and contracts a second marriage , whether the first marriage will still
be considered valid or not and if not, then whether such individual can still be held liable for bigamy
under S494 of IPC.
- Supreme Court of India: “When two individuals marry each other as per the provisions of a particular
personal law then such marriage shall continue to be governed under the same personal law
irrespective of the fact that one of the individuals to the marriage has converted to another religion.
Therefore, the individual who converts to another religion and attempts to or marries again during the
subsistence of their first marriage will be held liable for bigamy. Such individuals shall not escape the
legal consequences as elucidated under Section 494 of the IPC.”

-Principle: By merely converting to another religion, no person can escape the liability for
committing the offence of bigamy and the conversion itself does not render the religious belief in
first marriage to be invalid.
CONCL It is illegal to marry
again while a

USION
THANK YOU!
husband or wife is
still alive as it is an
offence of bigamy.