(Guest)
Sec.494 of IPC says:
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 descripttttion 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 with 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 that 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.
Exception is understandable in that if a person whose marriage with such husband or wife means the husband and wife of first marriage is declared void by a competent, this section is not applicable to such person. Second exception is, if a person contracts a marriage during life of a former husband or wife, who at the time of marriage is continually absent from such person for a period of seven years or not even heard of being alive, and provided person contracting subsequent marriage should not hide about fact relating to earlier marriage with the person he/she is marrying in subsequent marriage.
To that extent law is very clear. However, the problem is relating to interpretation of the main section viz.,
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 descripttttion for a term which may extend to seven years, and shall also be liable to fine.
Here, interestingly, the HC in the above quoted judgment had acquitted the offender based on a finding that, the marriage between Accused and Complainant has not been divorced and hence, during the subsistence of their marriage if the Accused marries the co-accused, such marriage itself is void in the eyes of law because the marriage took place during the subsistence of marital relationship with earlier spouse, and hence the accused has not married the co-accused at all, and for this reason he is not liable under Sec.494 of IPC. The HC relied on similar judgments of Calcutta HC and AP HC.
In Satyanarayana v. State of A.P. (1962 Mad LJ Cri 138) : (1962) 27 Cri LJ 644 where the learned Judge has observed that :-
"This object of the person committing bigamy and which is sought to be defeated by S. 494, Penal Code, by declaring it an offence, is not achieved if the second marriage is one which is no marriage at all in the eye of law, or which is otherwise void, in which case it cannot be said that there was a valid marriage, and the meaning of the word 'marries' in S. 494 of the Penal Code is not satisfied. There may be many instances where a second marriage may be no marriage at all and in which case there could be no question of bigamy, as, for example, where the parties are so closely related that a marriage between them is void according to their personal laws, or where the person sought to be taken in second marriage is himself or herself not eligible to be taken in marriage; and there may be many other instances, and it is unnecessary to notice all of them in this connection, I am inclined to agree with Mr. Rama Rao when he contends that the second marriage should be something which could be regarded as a marriage in the sense in which marriages are understood and if it is no marriage at all and if it cannot have any validity in law, apart from the fact that by reason of its being a bigamous marriage it would be declared void it cannot be said that the offence of bigamy had been committed."
Here what is interesting to note is that in Sec.494, the word bigamy is not mentioned at all. It only says, 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 descripttttion for a term which may extend to seven years, and shall also be liable to fine...... which means that anyone having a husband or wife living marries in any case in which such marriage is void by reason of taking place during the life of such husband or wife, shall be punished....here the fact that a subsequent marriage is void by virtue of already having a wife or husband is not an impediment to punish the offender. It only says, such marriage is void by reason of a person already having a spouse, it does not say – as the marriage is void because of the reason of a spouse already existing such marriage is not considered marriage at all hence bigamy has not been committed and hence the accused can be acquitted.
The fact that any marriage being void for any reason is not an impediment to punish the offender according to the main section. Whether a marriage is valid or not, is a point to be considered if it is a section relating to “bigamy”. That is, the section is presumed to punish those people involved in “bigamy” and “bigamy” means one who has two wives or two husbands. And so if one has second husband or second wife, the requirement of law is that the marriage with second husband or second wife must not be void and valid in the eyes of law.
This is entirely true, if Sec.494 is a bigamy law, but the fact is Sec.494 is not a law of bigamy, it has nothing to do with whether a marriage is valid or not or void or not. In fact the section itself says clearly, “marries in any case in which such marriage is void by reason of its taking place during life of such husband or wife”…..which means that the section itself recognizes such marriage as a void marriage but the fact that it is void marriage is not a bar to avoid punishment to the offender. If it is wrongly presumed as a bigamy law, then a judge comes to the conclusion that a certain marriage is not valid marriage or it is a void marriage hence the second marriage is deemed to have not taken place, for that reason, Sec.494 is not applicable. However, nowhere in Sec.494 it is mentioned that it is a bigamy law.
If a marriage being a void marriage does not preclude liability on the accused, then other reasons adduced for a marriage being void also does not preclude liability on the accused.
This also means that law accords sanction to Court to punish the accused while simultaneously declaring that the accused is participating in a void marriage and the fact that is is a void marriage is not a bar to punish him. Hence the fact of solemnization of subsequent marriage and the relevance of evidence relating to solemnization of subsequent marriage becomes irrelevant because the law does not demand that it be a valid marriage in order that the offender be punished. Law itself says, it is void marriage even then, the accused is punishable.
