Bigamy Under Indian Laws

Key Takeaways

• An overall scenario of bigamy and a brief comparison of such practice in earlier times and today.
• The laws in India that discourage and prohibit the practice of bigamy and provide for strict punishment regarding such offenses.

Introduction

Bigamy means marrying for the second time while the first spouse is still living or the first marriage is still in existence. Bigamy is considered an offense as per the Indian laws and nothing can justify double marriage or bigamy. Today it is prohibited in India however; the scenario has not been the same. In the earlier time, bigamy or even polygamy was a culture that was prevalent almost everywhere. The only difference was that, due to the patriarchal mindsets of the people, only men were allowed to have several wives and not the women. The only example that can be traced out from the Hindu mythology of polyandry (marrying more than one man), has been mentioned in Mahabharata, i.e. Draupadi’s marriage with five Pandavas. Else there are examples of polygamy only. Polygamy was practiced by kings in the guise of political alliance to expand their kingdoms which eventually became a culture among common people as well and a symbol of pride and prestige. Despite the laws enacted against bigamy or polygamy, people still practice it illegally. The reason why they are not being penalized is that not every time petitions are filed against such illegal acts and hence, people tend to successfully conceal their illegitimate marriages. There are several provisions provided under the Indian laws that prohibit and discourage the practice of bigamy and also provide for the punishments of such offenses. Though bigamy or polygamy is permitted under certain personal laws like the Muslim law, for those who are Hindus as per the Hindu Marriage Act, Bigamy is strictly prohibited.

Provisions Under The Hindu Marriage Act, 1955 (HMA) and The Indian Penal Code, 1860 (IPC) Against Bigamy

Void Marriage

Section 11 of HMA:

As per Section 11 of the HMA, any of the marriages that were solemnized after the said Act was commenced, must be considered null and void if they are in contravention of the conditions prescribed under Section 5 (i), (iv), and (v) of the Act. Therefore, the petition can be filed by one party against the other party to the marriage if there is such contravention. Section 5 (i) of the Act specifically deals with the provision against bigamy.

Section 5 (i) of HMA:

The said Section provides that for a valid marriage under Hindu law, the very first condition required is that the spouse must not be living at the time of marrying the other person. This means that another marriage when one marriage is already in existence is prohibited as per the Hindu law.

We do have certain provisions in the Indian Penal Code as well, against the bigamy. The provisions provide for specific punishments for the offenses related to bigamy.

Punishment of bigamy

Section 17 of HMA:

Section 17 of the Act provides for the punishment of bigamy which is subject to the provisions of IPC, under Sections 494 and 495. That means, if an offense of bigamy is committed under the HMA, then the prescribed punishment is under Sections 494 and 495 of the IPC.

Marrying again during the lifetime of the husband or wife

Section 494 of IPC

The above-mentioned section provides that, if a person marries another person during the lifetime of his or her spouse, then such marriage shall be considered void and the punishment for the same shall be imprisonment which might extend to the period of seven years and also that person shall be liable to pay fine, as decided by the respective Court of competent jurisdiction. However, there are a few exceptions provided under this Section.

The very first exception is that, if the first marriage of a person contracting another marriage is declared void by the Court of competent jurisdiction, then the second marriage shall not be void ipso facto. The second exception to this is that, if the spouse of a person contracting another marriage while the first marriage is still in existence, shall not be void if the spouse of that person has been continually absent from such person for the period of seven years and there has been no information of him being alive during the mentioned period. Also, a person contracting another marriage under such circumstances needs to mention all the facts explicitly before his or her spouse to whom he or she is going to marry, so that no facts are concealed from the other party.

Same offense with concealment of former marriage from person with whom subsequent marriage is contracted

Section 495 of IPC

The Section provides that if the offence of concealing the facts of the former marriage from whom the second or subsequent marriage is contracted, as mentioned in Section 494 of IPC, is committed, then such an offence is subject to the punishment of imprisonment which might extend to the period of ten years and liability to pay fine.

Cheating

Section 415 of IPC:

As per the Section, if a person after deceiving another person, induces him or her to do or omit from doing something that he or she would not have done or omitted from doing if they were not so deceived, which causes any sort of harm to the deceived person, be it in body, mind, reputation or property; the offense is considered as cheating.

Punishment for cheating

Section 417 of IPC:

Under this Section, any person who commits the offence of cheating shall be punished with imprisonment for a term which might extend to one year, or with a fine, or with both fine and imprisonment.

Court to which petition shall be presented

Section 19 of HMA:

This section provides that the petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized, or the respondent resides at the time of presentation of the petition, or the married couple last resided together, or where the petitioner resides while presenting the petition in case the respondent resides at a place where the said Act is not applicable or the respondent has not been heard for the last seven years continually and there is no information of him or her being alive.

SARLA MUDGAL AND ORS. VS. UNION OF INDIA (UOI) AND ORS. [AIR 1995 SC 1531]

One of the issues raised in the mentioned case was whether or not a Hindu husband, married as per the Hindu law, can solemnize a second marriage after converting his religion into Islam. To this, the Hon’ble Supreme Court held that the second marriage of a husband after converting into another religion just for the purpose of legitimizing his second marriage is void.

Conclusion

Bigamy is considered illegal in India but still many people illegally practice it. When we look at it from the practical point of view then such a prohibition is justified since, having sexual; relations with more than one partner increases the risk of Sexually Transmitted Diseases (STIs) like AIDS, and such fatal diseases get transferred not only to the other partners but also to the babies through their mothers. This might endanger the lives of many hence, it must be discouraged. Also, paternal property-related matters become quite complex and the children born from the illegitimate marriage lose many of their rights as per the Hindu Marriage Act, to which they would have been entitled had they been the legitimate children of their father. Also, if the offender gets penalized, that further adversely affects his/her family like there might be no or lack of source of livelihood and harm to the reputation which leaves a bad impact on the mindsets of children. Therefore, there is no gain in bigamy but a huge loss hence; by acting wisely, people must deprive themselves of committing such an offense.