is mens rea a sine qua non to prove the offence of bigamy?

Introduction:

In classical Hindu law, the marriage among Hindus is a sacrament. It is not a subject of law, it is subject of morality. Manu said that let the mutual fidelity continue till death. He considered that marriage is the highest dharma of husband and wife. Shamber defines the sacrament as one act which enables a person to perform sacrifice and to perform sexual activity for procreation because without sacrament or marriage, one cannot perform sacrifice and without marriage sex is sin. Therefore according to uncodified Hindu law, marriage is purely sacramental. Due to the sacramental character of the marriage, there was very little scope for the repudiation of the marriage. Kautilya in artha shastra has mentioned few conditions such as the conduct of the husband is such that it endangers the life of the wife or when the husband has become impotent, In such a case wife has the right to repudiate the marriage. In Narada code it was mentioned that wife can renounce her husband when the husband is dead or he has become impotent. Under Hindu classical law there has nothing been mentioned about the repudiation of marriage due to bigamy or no emphasis has been made on the monogamous status of the husband.

The rule of monogamous marriage amongst Hindus was introduced with the proclamation of Hindu marriage act 1955. Under section 5 of the Hindu marriage act , clause 1 provides for the monogamous status of the parties to the marriage. Section 17 of the act provided that any marriage between two Hindus solemnized after the commencement of the act shall be void if at the date of such marriage either party had a husband or wife living, and the provision of ss 494 and 495 of the Indian penal code( 45 of 1860), shall apply accordingly. The second marriage solemnized by a Hindu during the subsistence of first marriage is an offence punishable under the penal law.[1] The essential purpose of section 17 is to punish bigamy and in order to do that, the section provides that in such cases the provision of sec. 494 and 495, of the Indian penal code shall apply.

In india, bigamy first became a criminal offence for Christians, parsees and Hindu, Muslim women with the coming into force of the 1860 penal code. The code became applicable to all hindus only after coming into force of the hindu marriage act, 1955. Previously there were only a few local enactments as in Bombay and madras against bigamy among Hindus, applicable to both men and women,

The words used in the legislation under Indian penal code to punish the offence of bigamy are ‘ Marrying again during the lifetime of husband or wife’. The intention of the legislators needs to be examined while going through this law. Before the commencement of the hindu marriage act, 1955 . Hindu male having more than one wife at the same time, was not guilty of bigamy under sections, 494 and 495 of the Indian penal code since such marriages were not void to law then prevailing. Whether the law of bigamy covered under Indian penal code has mens rea as an essential ingredient and what is the attitude of the Indian courts regarding the law of bigamy and how the law of bigamy in india is different from the bigamy laws prevailing in other countries are some of the questions that this article seeks to deal with

Meaning of bigamy:-

The literal meaning of bigamy is the crime of going through a form of marriage while a previous marriage is still in existence or having two wives or husband at once.[2].in England, bigamy was originally an ecclesiastical offence based upon the broad grounds of its involving an outrage upon public decency by the profanation of a solemn ceremony[3] According to the hindu marriage act, 1955 , under section 5[4] clause (i) lays down the monogamous status as the essential condition for a valid marriage. As per the Hindu marriage act, the act of marrying in the lifetime of the spouse is enough to constitute the offence as bigamy. Nothing has been mentioned about the intention element required to prove the offence of bigamy. In Sarla mudgal President kalyani vs. union of india[5], the supreme court held that without having resolved to the first marriage by the Hindu husband and then converted to Muslim and then getting remarried again would be liable to be prosecuted under section 494 of the Indian penal code under the offence of bigamy. so as to find the real nature of this offence, the law of bigamy under section 494 needs to be reconnoitered.

Law of bigamy under Indian penal code:

The law relating to Bigamy is covered under section 494[6] of the Indian penal code . the intention of the legislators while forming the law needs to examined. The essential ingredients of the offence of bigamy covered under this section are[7]-

(a) The accused spouse must have contracted the first valid marriage;

(b) The accused spouse must have also contracted a second marriage when the previous valid marriage was subsisting, meaning thereby that there must be , at the time of second ceremony of marriage, a previous valid subsisting marriage[8], and

(c) Both marriages must be valid in the sense that necessary ceremonies, required by the personal law, governing the parties, had been fully performed[9]

In the absence of any of the said ingredients no offence under this section would be committed, i.e., if the first marriage is null and void, there would be no offence of bigamy in contracting a second marriage.[10] Section 494 exempts the person from bigamy in the following situations[11] –

(a) when the first marriage has been declared void and annulled by a court of competent jurisdiction;

(b) when the husband and wife has been continually absent for a period of seven years or more;

(d) the party marrying must inform of the fact of absence to the person from whom he or she marries;

(e) when a valid divorce has taken place according to the law of the spouse.

There is no word in the legislation which shows that the intention is required to so as to commit the offence of bigamy. But according to the general principle of criminal law, the mere commission of a criminal act (or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the more serious crimes. These generally require in addition, some element of wrongful intent or other fault.[12] It is possible that a person carries out a second marriage within seven years of the solemnization of his first marriage with the honest belief that his wife is not alive, where his first marriage was the valid marriage and coincidently his first wife appears after second marriage, then according to this law husband would be held guilty under section 494 of the Indian penal code.

The only word that is used in the legislation that can infer the intention element Is the word ’knowledge’, i.e. ‘this section does not extend to any person…….who contracts the marriage during the life of the former husband or wife…..provided the person contracting such subsequent marriage shall, before such marriage takes place, informs the person, with whom such marriage is contracted, of real state of facts so far as the same within his or her knowledge’. But this word refers to the knowledge to the knowledge of the wife or the husband which is getting married to the person who already had a wife and is not aware of her because he didn’t heard of her for the last seven years. And he informs of this fact to the person to whom he is getting married. But this doesn’t mean that if he does not inform about this fact to the person to whom he is getting married and after seven years, she comes to know about it, he will be held liable for the offence of bigamy. Therefore, it is quite difficult to decipher the reason why the legislators have used this clause in the legislation.

Is Mental intention necessary or not?

Mens rea is the state of mind indicating culpability, which is required by the statute as an element of crime.[13] The doctrine of mens rea has no application to the offences in general under the Indian penal code unlike its counterpart, the common law. The framers of the Indian penal code have not mentioned mens rea as such anywhere in the IPC. However, the doctrine has been incorporated as the provision as to the state of mind required for a particular offence have been added in the sections itself by using such words as ‘intentionally, knowingly fraudulently,dishonestly,etc.’ depending upon the gravity of the offence concerned.[14]

Still if the penal statute does not include a mental element expressly , the courts will sometimes, sporadically and without much discernible principle, imply the requirement, on the assumption that the parliament probably intended the new offence to be read in the light of the general mens rea requirement. The assumption ought to be made more regularly than it is.[15] In sherras vs. DeRutzen[16] Wright J held:

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals . . ."

It is the principle of natural justice and of our law, says Lord Kenyon CJ, in fowler vs. Padget[17] that the intent and act must both concur to constitute the crime. No act is per se criminal, the act becomes criminal when the actor does it with the guilty mind. [18] can we equate the mere absence of the words indicating guilty mind with the intention of the legislature to make that offence the as the strict liability offence. In brend vs. wood, lord goddard, cj said:[19] it is for utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute either clearly or by necessary implications rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.

English cases :

In R vs Brawn[20], it was held that if the man knew at the time of the marriage that she was a married woman and her husband alive , he might be convinced of counseling her to commit the offence of bigamy.

In R vs. tolson[21], the accused Mrs. Tolson was prosecuted for bigamy under section 57 of the offence against the persons act , 1861 for contracting a second marriage during the lifetime of the former husband. The house of lords by the majority of five quashed the conviction and held that the reasonable belief in good faith in the death of the first spouse negatives mens rea , and is a good defense to a charge of bigamy, although he or she has not been continually absent from the defendant from seven years. This case laid down the requirement of mens rea as an essential ingredient to the offence of bigamy whether the words given in the statute express it explicitly of not.

In R. vs Wheat and R. stock[22], a man of little education instructed his solicitors to obtain a divorce from his first wife, and received a telegram from them stating that he would shortly receive the necessary papers for signature. He thereupon married stocks and, at his trial for bigamy, the jury found that he believed on reasonable grounds, and in good faith , that he had been divorced from his wife. The accused was nevertheless convicted and his conviction affirmed an appeal. Held, a reasonable belief that the first marriage had been dissolved is no defense to the charge of bigamy in the facts and circumstances of the case.

Here the attitude of the English court towards the offence of bigamy regarding mens rea was changed. the stand taken by the English court in tolson case does not stand here. this case is judged on similar lines as the celebrated case of R vs. Prince[23] was judged where for the purpose of section 55 of the offences against the persons act,1861 it was no defense for the those who are charged with taking an unmarried girl under the age of 16 out of possession of her father to establish the reasonable belief that she was over 16 years of age. Good faith and reasonable belief can no more be taken as the defense in 1921 in England in the cases of the bigamy. Therefore here the position of the law relating to bigamy was not clear. There were still doubt existing over the inclusion of mens rea as the essential element in the offence of bigamy.

But , so far as the problem of reconciling wheat with tolson is concerned, it has been said that the accused’s mistake in the former case was one of law, whereas that of Mrs. Tolson in the later case was of fact., but this is not how the court distinguished the two cases.

The court held that the wheat knew the lady ( first wife) was alive at the time of his second marriage, he intended to marry during the lifetime of his former wife, and was unable to show that he came within the proviso as to divorce. Mrs. Tolson on the other hand, did not intend to marry, during the lifetime of his first husband.[24]In other celebrated judgment, In R vs. king[25] the court held that an honest belief on the reasonable ground that the spouse is dead , is a good defense. But such bona fide belief is not, is not however sufficient unless proper and reasonable enquiry had, in fact, been made.

In B (a Minor) v Director of Public Prosecutions[26], the issue was whether, it was necessary for the prosecution to prove the absence of a genuine belief on the part of the defendant that the child was over the specified age of 14. The House (Lord Irvine of Lairg LC, Lord Mackay of Clashfern, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton) unanimously held that it was.

"the established common law assumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament has indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence" (per Lord Nicholls of Birkenhead, at p 460F).

Therefore, the House considered section 1(1) of the 1960 Act in the light of the presumption that guilty knowledge is an essential ingredient of a statutory offence unless it is shown to be excluded by express words or necessary implication. The intention of the English court regarding the essentiality of mens rea in those offences where there is no word in the legislation indicating the same is evident from the judgment of the court in R vs. k[27]where it was held that prosecution did have to prove the absence of genuine belief on the part of the accused that the victim was under the age of 16 years. This attitude of the English court is suggestive of the presumption that mens rea is still considered to be the essential element in the statutory offences even though it has not been explicitly mentioned in the statute.

Indian scenario:

Going through the English cases one can say that the in England mens rea is believed to be an essential ingredient in the offence of bigamy though it has not been explicitly been mentioned in the legislation. But, when it comes to Indian scenario, there is a dilemma over this assumption. The cases relating to bigamy decide by the supreme court and the high court proves it.

In Janki Amma vs. Padmanabhan[28], the court held that , the plea of the accused that he entered into the scond marriage in all good faith and after honest impression that the earlier marriage with the complainant had been put an end to by an order of dissolution, passed by a court of competent jurisdiction, was accepted as a valid defence.In Kochu muhammed Kujnu Ismail vs. Mohammed kadja Umma[29], the kerela high court held that, that a penal statute requires mens rea even though it contains no express words to that effect, should not be given effect to. Similarly in another case, Sankaran sukumaran vs. Krishnan Saraswathy[30], kerela high court came to the conclusion that Mens rea,i.e. the guilty knowledge , is necessary ingredient of the offence under section 494 of the Indian penal code.

Emphasis on the commission of an act

But these cases only show a half picture of the stand taken by the courts in India. Going through these cases it seems that the mental intention is implied in the law though not mentioned. But this is not true. In the leading case of the B.S.Lokhande vs. State of Maharashtra[31], the supreme court held that it is essential that the second marriage should have been celebrated with the proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties taken to be married, will not make the ceremonies prescribed by the law or approved by any established custom.

In the later case of L.Obulamma vs. Venkata Reddy[32], the supreme court further clarified that in order to succeed, the prosecution must prove “that both the marriages( the first and the second ) were valid and according to the law governing the parties”.

The result is that even where there is undisputed proof that some type of marriage ceremony with all the arrangements and symbols of the solemnization of marriage, took place; that there was the presiding religious functionary; that there was the gathering that witnessed tha ceremony ; and that since the ceremony the couple have held themselves out to the world at large as the husband and wife, the prosecution fails if there is no positive proof that all “proper” ceremonies were performed. The prosecution will also fail even though the ceremony was complete and proper, if that particular ceremony is found to be inapplicable to the accused and the second spouse.[33]

In Priya Bala Ghosh vs. Suresh Chandra Ghosh[34], the supreme court held that the proof of proper solemnization of the second marriage is “a must”. Further it was held that the admission of the accused cannot in law be treated as evidence of the second marriage having taken place in due form. Similarly, supreme court in Laxmi Devi vs. Satya Narayan[35], held that the factum of the second marriage was not made out as there was absence of the proof of saptapadi, though there were enough evidences to establish the factum of the second marriage. There were the eyewitnesses who have seen the marriage. Here the attitude of the court is just on the commission of the offence, i.e. the act should be committed. Even if the person had an intention to commit the offence of bigamy but he forgets to take the seventh step, it is said that he did not met the condition for the commission of offence thus he is not liable. The mental intention has totally taken a back here.

Conclusion:

The law against bigamy is an early example of social legislation, which is designed to safeguard one of the besic institution of the society i.e. marriage. The interpretation of this law by contemporary Indian courts, however, has created tremendous confusion and made evasion of the law too easy. Making the offence of bigamy as the criminal offence by the legislature must had some future goal in mind and that may be to punish those who make mockery of the institution of marriage. But I doubt the legislation has succeeded in achieving its long term objectives.

It is said that law is nothing but only the physical manifestation of problems whose roots are endemically social. This law has failed to serve its purpose and needs certain modification. The main cause of its failure may be contributed to the interpretation of this law by the courts while applying it in different cases. It is presumed that the law relating to crime require mental intention as an essential ingredient. But does this law really need mental intention to prove the offence of bigamy? the cases that have been discussed earlier depicts that it is not all necessary to prove mental intention, mere commission of the act would constitute an offence. Even though the accused may be having a mala-fide intention to commit the offence of bigamy, he won’t be convicted under this section just because of the fact that he didn’t followed some rituals, and therefore his second marriage is not valid. India is often called the country where unity exists in diversity. The very essence is that there exists diversity in our nation. And if the person gets married following any other custom, still he wont be held liable as his marriage is not a vlid marriage under law though he had the prior intention of committing the offence of bigamy. this defeats the very purpose of the legislation. Until and unless the court recognizes that the mental intention is the condition essential for proving this offence, apart from mere performance of some rituals the object of the law stand defeated.

In 156^th report of the law commission of india,1997,there is the mention of the committee on the status of women and its report “towards equality”(1975) which had recommended the incorporation to section 17 of the hindu marriage act,1955 that an omission to perform some essential ceremonies by parties shall not be construed to mean that the offence of bigamy was not committed. But no response on this matter was seen. In S.Nagalingam vs. Sivagami[36], the supreme court held that even though the marriage is performed without the ceremony of saptpadi which is considered to be an important ceremony and the absence of the priest, the second marriage is still valid and held the accused liable for the offence under section 494. The supreme court needs to take staunch steps and take more and more decisions like this taking into consideration the facts and the circumstances of the case. The law needs to be changed and the mental intention element needs to be explicitly mentioned in the law so as the court do not get confused and commit errors as it had committed in the past.

Recently the supreme court in Tulsa vs. Durghatia[37] held that, Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. Here the court did not took into consideration the ceremonies that would validate the hindu marriage, still adjudging a valid marriage between the parties just on the sole basis that both the parties have lived together for a reasonable period of time as a husband and wife. The supreme court needs to take a leaf out of this pronouncement and in the light of this decision needs to emphasize on the mens rea so that the purposes of the section does not stand defeated.

The law needs to be changed and the mental intention element needs to be explicitly mentioned in the law so as the court do not get confused and commit errors as it had committed in the past.

[1] Sarvaria S. K., R. A. Nelson’s, Indian Penal Code,9^th ed., LexisNexis Butterworths,, Pg 4554.

[2] William R. Trumble,Shorter oxford English dictionary, 5^th edition,oxford university press, 2002.

[3] J.W.Cecil Turner, Kenny’s Outlines of Criminal Law,Universal publishing house ,19^th edition.

[4] Condition for a hindu marriage- a marriage may be solemnized between any two hindus, if the following conditions are fulfilled, namely –

(i) Neither party has a spouse living at the time of marriage;

(ii) At the time of marriage, neither party-

(a) Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) The bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;

(iv) 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

(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two

(vi)

[5] 1995 3 SCC 635

[6] 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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception:- this section does not extend to any person whose marriage which such husband or wife has been declared void by a court of competent jurisdiction.

Nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent , marriage, shall have been continually absent from such person for the space of seven years., and shall not have been heard of by such person as being alive within the time, provided the person contracting such subsequent marriage shall , before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

[7] Lily Thomas etc vs. union of india & others 2000 CrLJ 2433(SC); D Vijayalakshmi Vs. D Sanjeev Reddy 2001 CrLJ 1583 (Andhra Pradesh)

[8] Binodini Howaldar vs. Emperor AIR 1927 Cal 480

[9] Surinder kaur vs. Mohinder Singh (1978) 80 punj LR 12

[10] Padi vs. union of india AIR 1963 Himachal Pradesh 16.

[11] Gaur,K.D.,A textbook on Indian Penal Code,3^rd edition,universal publishing house,.

[12] Williams Glanville, Text book on Criminal Law,2^nd edition, Universal Publishing House, Delhi Pg. 70.

[13] Staples vs. united states, 511 US 600(1994).

[14] Gaur K. D., Criminal Law: cases and material,5^th edition, lexisnexis butterworths,

[15] Ibid, at page 70.

[16] [1895] 1 QB 918

[17] (1798) 7 TLR 509 (514)

[18] Balasubramanyam v., The guilty mind, Essays on Indian penal code,The Indian law institute,Delhi Pg.68

[19] (1946) 62 TLR 462

[20] (1843) 1 C. & K. 144, wherein an indictment charged a woman with bigamy and the man, with whom she contracted the second marriage, with inciting and counseling the woman to commit the offence of Bigamy

[21] (1889) 23 QBD 168, wherein Mrs. Tolson was married to Tolson on December 11,1880. Tolson deserted her on December 13,1881. She and her father made enquiries about him and learnt from his elder brother and general report that he had been lost in a vessel bound for America, which went down with all hands on board. On january10, 1887 after a gap of 6 years the prisnor supposing herself to be a widow , went through the ceremony of marriage with another man. In December 1887 Tolson returned from America after 6 years.

[22] (1921) 2, KB 119. The plea of the accused that he believed in good faith and on reasonable grounds that the first marriage alleged was void was rejected to the charge of bigamy on the ground that the evidence showed on reasonable grounds for such belief.

[23] (1875) LR 2 CCR 154

[24] Supra note 11.

[25] [1963] 3 All ER 561

[26] [2002]AC 428

[27] 2001 UKHL 41,wherein, the appellant k was indected of the single count of indecent assault committed against the girl c who at the time was aged 14, contrary to section 14(1) of the sexualoffences act,1956. His defense wasthat the sexual activity between him and c was consensual, that she had told him that she was 16 and he had no reason to disbelieve her.

[28] 1954 Ker LT 977

[29] AIR 1959 Ker 151

[30] 1984 CrLJ 317(Ker)

[31] AIR 1965 SC 1564.

[32] (1979) 3 SCC 80

[33] Abha Thapalyal, Proving Bigamy: Unfair burden?,(1986) 4 SCC (Jour) 11.

[34] (1971) 1 SCC 864.

[35] (1994) 5 SCC 545

[36] (2001)7 SCC 487

[37] 2008 AIR 1193