Sec. 494 ipc is not about bigamy

@Sku, Nr, Nag.....after one year I could find some more clarity in these judgments on which I have been pondering over.  In the case of C.G. rangabhashyam the Madras HC acquitted the accused saying the first marriage of accused has not been divorced and for that reason, his second marriage, though a valid marriage is a void marriage because S.494 declares it a void marriage, hence he committed no offence of bigamy. 

The judgment of Calcutta HC referred in this judgment Swapna Mukherjee v. Basanta Ranjan is different from this judgment in the sense that the court found that the marriage performed is no marriage in the eyes of law as it had not fulfilled the requirements of a valid marriage.  The ratio laid down by Supreme court in Bhaurao shankar lokhande vs State of Maharashtra is also same.  In that judgement SC observed:

The word 'solemnize' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is therefore essential, for the purpose of s. 17 of the Act, that the marriage to which s. 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom.

We are of opinion that unless the marriage which took place between appellant no. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been 'solemnized' and therefore appellant no. 1 cannot be held to have committed the offence under s. 494 I.P.C.

- However there is lot of difference between the Judgment of Madras HC and the other two judgments.  In Madras HC judgment the accused is acquitted for the reason that the second marriage of the accused is void as it was performed during the subsistence of relationship with first wife.  Here the validity of second marriage with regard to solemnization or any other fact which might be taken into account to declare it a valid marriage is not considered.  Second marriage may also be valid marriage but by reason of its taking place during the subsistence of relationship with first wife, it is void marriage and hence accused had not committed offence of bigamy....was the position taken by Madras HC in Rangabhashyam's case.

In Bhaurao, the SC had taken the position that the marriage is not solemnized as per the required customary rites and hence the second marriage cannot be treated valid marriage and hence the presumption is that the accused had not indulged in second marriage at all and hence, the question of punishing him under bigamy does not arise.

In Telugu Hero Pawan Kalyam vs. Nandini's case, the first marriage was not performed according to religious rites but second marriage was performed according to religious rites.  As first marriage is not a valid marriage, he had not committed offence of bigamy.

You see the problem here is, court asks the complainant to prove that both the marriages are valid.  If both are proved to be valid, then the court says as second marriage is void as per S.494 he had not committed offence of bigamy.  If anyone of the marriages is not proved valid, then he had not married second time so he had not committed offence under S.494.  Then how does a court punish someone under S.494?

If you prove second marriage as valid marriage, it is void marriage and hence the accused is not punishable.  If you cannot prove second marriage as valid marriage, it is no marriage hence the accused is not punishable.  Both ways the accused cannot be punished.  Lending too much of leeway to criminals.  I think. If courts deliver judgments like these the men performing second marriage would take six steps during Saptapadi deliberately. 

Nandini is the first wife kada sir, and its a valid marriage. Pawan was in a live-in relationship with Renu desai till he got formally divorced from the court and then he got married to her. He paid 8crores to settle the matter with Nandini after fighting 10yrs of nonsensical court cases. There is no offense of bigamy committed in the first place. Yes live-in was true and they had a kid out of the relationship and there was no marriage.

!! baap re baap !!

@stalker.  Nonsensical....ha..ha...

Not contesting your views.  Feel that if what you say is right, then he is punishable under 497 adultery.  But you see under Adultery, a wife cannot proceed against the concubine but the husband can proceed against the paramour of his wife. Some case laws were given by our respected teacher I have to go through them.  My preliminary view is there is not an iota of advantage accorded by legislature under Article 16 of the constitution by saying that a wife cannot proceed against concubine/paramour of husband. Offender is an offender whether she is man or woman.  When the victim is woman, what is the rationale in protecting the offender because she is a woman?

Some enlightened view I will give after reading judgments referred by my Guru. 

Regarding compounding of offences my view is the law should not allow out of court settlements.  If out of court settlements are allowed, the sound party will be in advantageous position against a weak party and you are aware, ours is a country where there is huge gap between haves and havenots.  (Am referring about compounding of offences in view of Pawan giving some 8 crores and arriving at compromise with first wife).

  https://www.citehr.com/294003-new-law-government-india-3.html?status=closed

In this weblink I have discussed about it IPC 2009 (some revision of IPC done with an intention to generate a debate about getting rid of old and unrequired laws in IPC and modernize it to suit today's crimes).  In that I have discussed about the issue of civil liability arising out of every criminal offence where there is a victim and the offender can compromise by paying damages to victim or undergo full term punishment.  There the IPC itself provides for damages which the offender can set off against punishment period if he wealthy.  If he is not wealthy there is no way he can compensate the victim so the question of compromise by paying does not arise.  Please go through it if you have time.

@Amit.  Hi Amit.  How are you man??  Nice to see you here.

Good Day Mr.Chandrasekar,

Thanks for your valuable advice and effort regarding the section 494.

In case if myself give a affidavit states that I'm living with two life partners/Women.

In this scenario Bigamy coming to play or not?

When that section will come to play?

Guru gaaru,

You have not clarified whether the two life partners are married by you or you married only one of them etc.  In the absence of that info I cannot comment.  However let me say this for your kind information...late...though.  If you married one of them and another is only a lover it comes under Adultery, then section 497 is applicable.  However, Sec.497 is a gender biased and antiwomen law.  Because under this law, a male can go against another male who is indulging in adultery with his wife, but a female cannot go against another female who has illicit s*xual relationship with her husband.  Hope you got the point.  In other words, if you married one woman and another woman is only your keep, then your wife cannot do anything against you.  However, if you married both women then S.494 comes into being, then anyone of the wives can proceed against you under S.494.

Hope it is clear.

After many years, I understand that I have misunderstood Madras HC judgement and most of the views expressed by me are based on wrong understanding of facts. In that case what happened was, the 1st Accused tried to marry 7th Accused who is woman during subsistence of her marriage with DW4 .  Therefore marriage of 1st Accused with 7th Accused were held to be invalid as 7th Accused is not yet divorced.

Madras HC acquitted Accused no.1 on the ground that his second marriage is not valid. This is correct understanding of the case. However though there is misunderstanding about facts of that case, I still strongly standby the legal principles I proposed in my earlier communications.

It's true that in criminal cases, standard of proof is high and crime should be proved beyond reasonable doubt. However, this standard should not be stretched to such extent that if Pandit performing marriage instead of reciting "Maangalyam tantuna nena..." recites, "Maangalyam mantunaa tena . .." marriage is declared invalid in the eyes of law for that reason.

In these cases involving offence to sentiments of human beings, the main element of offence is whether the actions if accused person caused hurt (offence) or grievance to the victim. Whether accused person's marriage is properly conducted by pundits or not shall not be focus of inquiry by Court to call it offence, because whether accused person involved in valid marriage or not, he had displayed mens rea and involved himself in all such actions which he believed to be marriage. As the mens rea and these actions caused hurt to victim, they shall be proved rather than validity of subsequent marriage. If second marriage is invalid that does not take away hurt from victim nor he/she takes sigh of relief.

It is court and advocates who say that his second marriage is not valid marriage, based on hairsplitting imagination, but accused person has no reason to say that he had not indulged in second marriage. The primary duty of Trial court is to examine Accused person under S.313 CrPC putting question "whether according to you what happened that day was marriage or not?". Only if he denies that was not marriage the question of validity of marriage arises.  It's not important whether it is valid marriage in the eyes of law. What's important is whether it is valid marriage in the eyes of accused person and society members who attended that marriage.

In 313 CrPC if he denies he involved in second marriage, then it should ask "what were you doing there on that day...wearing cloths of bridegroom". There are only two possibilities here. If he denies he didn't involve in second marriage he has to answer to satisfaction of court what he was doing that day appearing to be doing everything that bridegroom does in marriage. Was it fraudulent marriage without intending to marry? Society members who attended marriage should also be examined "whether it was marriage?".

This should be Examination of Court under 313 CrPC or cross examination of public prosecutors.  If he says he married he is punishable under Sec.494. If he says he didn't intend to marry on that day doing everything that bridegroom does in marriage then he is punishable under Section 496 of IPC. These are only two possibilities. If society members say, it was not marriage, they shall be tried for abetting offence under Sec.496 of IPC..

That's the way prosecution to take place.