Introduction:
Since ancient times, polygamy was identified in one form or the other form under the Hindu legal framework until the passing of the Hindu Marriage Act, 1955. Now, most of the personal laws in India recognize Monogamy as valid marriage and bigamy is a ground for the decree of nullity of marriage. Certain legislative enactments were accepted to eradicate the evil of bigamy. Monogamy as a rule was introduced among all the Hindus only after the enactment of HINDU MARRIAGE ACT, 1955. With the passing of this Act, monogamy has been accepted as a valid marriage under section 5(i) and bigamy had made a ground of nullity of marriage under section 11 of the act. Most importantly, under section 17 of the Act, it has also been made an offense under the Indian Penal Code.
Definition
The word ‘bigamous’ is derived from the root words ‘bi’ which means twice and ‘gamous’ which means marriage, but the term ‘bigamy’ is defined by different authors in a different manner. For instance, Corpus juris scundum states that “bigamy is willfully and knowingly contracting a second marriage where the contracting party knows that the first marriage is still subsisting.”
From the examination of the definition of Bigamy by different authors, these ingredients can be drawn:
- There must be a valid marriage.
- Either spouse has solemnized second marriage, while the first marriage is subsisting.
- The second marriage must be contracted by performing necessary ceremonies/rituals.
Sometimes bigamy is termed as polygamy. It is of two types: Polyandry and Polygyny. Polygamy is also termed as ‘plural marriage’.
Defenses available to the person accused of Bigamy
This Act envisages the following defenses to the accused of bigamy.
(a) The first marriage had dissolved under section 27 or 28 of this Act;
(b) The first marriage is void under section 24 of this Act or that the other spouse was impotent at the time of the marriage and thereafter the marriage is neglected under section 25 of the Act or that the other spouse has not been heard of for a continuous period of seven years or more in such circumstance as to raise a presumption of death.
(c) The accused has reason to believe that the spouse is dead.
Statutory Provisions under Hindu Law:
The relevant provisions under the Hindu Marriage Act 1955 are as follows:
Sec 5(i) – Conditions for a Hindu marriage- A marriage may be solemnized between any two Hindus, if the following condition is fulfilled, namely: None of the party has a living spouse at the time of marriage.
Section 11- Void marriages- Any marriage solemnized after the commencement of this Act shall be null and void if it violates any one of the conditions specified in clause (i), (iv), and (v) of section 5. The court will declare the marriage null and void when the petition is filed by either spouse against the other spouse.
Section 17- Punishment for Bigamy- Any marriage solemnized between two Hindus after the commencement of this act is void when either party had a living husband or wife at the date of marriage and the provisions of the sections 494 and 495 of the Indian Penal Code 1860 will apply accordingly.
Case Laws
In “Boloram B’aruti v. Mt Sajya Baruti[1] , the Supreme Court held that there must be previously subsisting valid marriage at the date of second marriage and latter with proper ceremonies in due forms must take place. The Court also observed if the proper ceremonies were not gone through, it is not marriage in the eyes of law.
In Gopal Lal v. State of Rajasthan[2], the Supreme Court held that the second marriage though void as per section 17 of the Hindu Marriage Act, still it would attract section 494 I.P.C. Where a spouse solemnized a second marriage while the former marriage is still subsisting, the spouse would be guilty of bigamy under section 494 IPC if proved that the second marriage is a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed.
In Sarla Mudgal v. Union of India[3] after considering a number of decisions on the point, the Supreme Court held that the second marriage of Hindu males after adopting Islam in violation of justice, equity & good conscience; such marriage would also be void and attract section 494 of I.P.C.
Conclusion
Section 17 of the Hindu Marriage Act has to be read in consonance and connection with section 494 IPC. Therefore, just because the second marriage is void under section 17 of the Hindu Marriage Act it cannot be said that section 494 will not be attracted. Thus the combined effect of section 17 of the Hindu Marriage Act and section 494 is that when a person solemnized a second marriage after the commencement of this Act, while the former marriage is subsisting, he commits the offense of bigamy.
Another important point in respect to the offense of ‘bigamy’ is that good faith and mistake of law are no defense to bigamy. It is no defense in law to charge for bigamy that the accused, at the time of the alleged bigamous marriage, believed in good faith and on reasonable ground, that he had been divorced from the bond of his first marriage, if he had not been divorced.
References:
[1] AIR 1986, SC-107
[2] A.I.R. 1979, S.C 713
[3] A. I.R. 1995 SC 1531: 1995 Cri LJ 2926
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