Cohabitation and Bigamy

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Cohabitation and bigamy

Marriage under the Hindu Laws is considered to be a ‘sacrament’ (solemn pledge) and not a contract, which can be entered into by execution of a marriage deed.[1] It is a lasting commitment, a lifelong partnership established for the good for each other and the procreation of their children.[2] It is therefore a permanent relationship for the physical, social, and spiritual purposes of dharma, procreation and sexual pleasure.

Black’s Law Dictionary defines marriage as “the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex”[3]

In order to constitute a valid Hindu marriage conditions as mentioned under Section 5 of the Hindu Marriage Act, 1955 (Hereinafter referred to as ‘HMA’) are to be fulfilled.

5. Conditions for a Hindu Marriage- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

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

…..”

Thus, Bigamy is impermissible under the Hindu Laws. It is a requirement under the Section that none of the parties have a spouse living at the time of the marriage. Bigamy is the act of being married to more than one person at the same time. The following requirements need to be complied with in order for one to be legally prosecuted for the offence if Bigamy:

1. There should exist a legal marriage between 2 persons;

2. The first marriage is still subsisting, i.e. not broken or ended because of the death of a spouse or divorce or long-lasting absence;

3. A second marriage, which was completely legal, was entered into while the first marriage was still subsisting.

Bigamy becomes a ground for nullity and divorce of marriage under Section 11, HMA. The provision states as follows-

11. Nullity of marriage and divorce- Void marriages.- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5.”

Therefore, a second marriage contracted; while the first marriage is still subsisting is invalid and void and becomes a ground for divorce under Section 11 of the Act. The Apex Court observed that such second marriage is non-existent in the eyes of law because it is incomplete and defectively performed. It shall therefore not attract the anti-bigamy provisions.[4]

Section 17 of the Act states that bigamous marriages among persons governed by the Act would amount to being void and be punishable under Section 494 and 495 of the Indian Penal Code, 1860. The provision reads as follows-

17. Punishment of bigamy.-Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.”

Bigamy is made punishable under Section 494, Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’), which holds that-

494. Marrying again during lifetime of husband or wife.

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.”

Bigamy therefore means marrying for the second time during the life time of the first spouse, when the first marriage which was valid as per the provisions of the Hindu Marriage Act, 1955. It becomes a ground for divorce under Section 11, HMA and is a criminal offence by virtue of Section 494, IPC.

In the United States of America, Scoggins v. State[5] the Supreme Court of Arkansas used these words:

“The crime, in the language of our act, was completed, when any person now married, or who shall be hereafter married, doth take to himself or herself another husband or wife, while his or her former wife or husband is still alive. Marriage, or the relation of husband and wife, is in law complete, when parties, able to contract and willing to contract, actually have contracted to be man and wife in the forms and with the solemnities required by law.

It is marriage; it is this contract, which gives to each right or power over the body of the other, and renders a subsequent cohabitation lawful. And it is the abuse of this formal and solemn contract, by entering into it a second time, when a former husband or wife is yet living, which the law forbids, because of its outrage upon public decency, its violation of the public economy, as well as its tendency to cheat one into a surrender of the person under the appearance of right. A man takes a wife lawfully, when the contract is lawfully made. He takes a wife unlawfully, when the contract is unlawfully made, and this unlawful contract the law punishes.”

The Exception to Section 494[6] further states that the provision does not extend to

1. a marriage which has been declared void by a Court of Competent jurisdiction;

2. a spouse of the first marriage if he/ she have continued to remain absent for more than 7 years continually, and has not been heard of as being alive within this time.

However, in both these cases, it essential that the party contracting the second marriage informs the spouse of the second marriage about such existing state of facts, so that the same are within his/ her knowledge.

The exception reads as follows-

(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.”

Therefore, Bigamy is constituted when a person who is already married, and the first marriage is still subsisting, enters into another marriage, which is therefore impermissible. However, if the first marriage is dissolved by reason of divorce or due to the death of first spouse, or the first spouse being missing for more than 7 years continuously, then any second marriage so solemnized would not amount to Bigamy. The subsistence of the first marriage is the sine qua in order to constitute the offence of Bigamy.

For example

Persons A is married to person B, (both being Hindus) and during the subsistence of this marriage, A marries P. Here, the marriage between A and P is invalid and void. This is because at the time of the second marriage, A was already married to B. This being the first marriage was still subsisting and B was alive at the time of the second marriage.

If however, A and B had divorced due to B’s conversion to another religion (or on any other grounds[7]) and this decree for divorce was passed by a Court of appropriate jurisdiction, then the marriage solemnized between A and P would be valid. It would however be required for A to bring to P’s knowledge about these facts and keep P informed (abiding by the Exception to Section 494, IPC).

The obligation of informing the spouse of the second marriage is an essential and if he/ she try to deceive such a person by keeping this information despite the obligation, shall be punished under Section 495, IPC with imprisonment which may extend to a term of 10 years, and shall also be liable to fine.

Section 495 says that

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.—Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprison­ment of either description for a term which may extend to ten years, and shall also be liable to fine’.

Bigamy is not only restricted to marriages under the Hindu laws or the Hindu Marriage Act. All other religions except for the Muslims prohibit bigamy and treat a bigamous marriage as void. Therefore, the applicability of Section 494[8] is not restricted to marriages solemnized under the Hindu Marriage Act but all other such Acts.

Since Muslim laws permit bigamy for men, it had become a practice as could be seen long in the past that men would convert to Islamism for the sake of contracting a second bigamous marriage, under the belief that such conversion would allow them to contract a second marriage without dissolving the first/ when the first marriage was still subsisting.

The anti-bigamy provisions of the Indian Penal Code apply to all the marriages that are governed by the following legislative enactments:

1. Christian Marriage Act, 1872

2. Parsi Marriage and Divorce Act, 1936

3. Special Marriage Act, 1954

4. Hindu Marriage Act, 1955

5.Foreign Marriage Act, 1969

All these legislative enactments regard a second marriage of bigamous nature, by a man or a woman, as void.

Christian religion is well known for prohibiting bigamy. The Christians Marriage Act, 1872 is an old Act of the British period and governs Christian marriages in India. The Act requires that either or both the parties to the marriage are Christians. The parties are required to declare their marital status at the time of solemnization of their marriage. This includes declaration of the parties being a widow/ widower. A certificate of compliance with the notice requirement is to be issued upon the applicant filing a declaration affirming that “he or she believes that there is not any impediment of kindred or affinity or other lawful hindrance, to the said marriage;” and the marriage shall be solemnized only after such a certificate has been issued (Sections 12, 18, 25 & Schedule I).[9]

The Act further provides that any party which makes a false oath or declaration or signs a false notice with the intention and purpose of procuring a marriage, shall be punished under Section 66 of the Indian Christian Marriage Act. The provision states that any such person making such a false statement, oath or declaration shall be punishable under Section 193 of the Indian Penal Code, 1860. Even though bigamy is strictly prohibited under the Christian customary practices, there are no specific provisions in the Act prohibiting the act of bigamy.

The Parsi Marriage and Divorce Act, 1936 however specifically prohibits Bigamy under its provisions[10]. It states that Sections 494 and 495, IPC shall be attracted by every case of bigamy in any marriage governed by the Act.

In case of Special Marriage Act, 1954, the rule followed is that of monogamy. Amongst the other conditions spelt out in order to constitute a valid marriage under the Act, the foremost condition is that “neither party has a spouse living”[11].

The Special Marriage Act, 1954 makes bigamy a punishable offence under Sections 43 and 44 respectively, which read as follows-

43. Penalty on married person marrying again under this Act.—Save as otherwise provided in Chapter III, every person who, being at the time married, procures, a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code, 1860 (45 of 1860), as the case may be, and the marriage so solemnized shall be void.”

44. Punishment of bigamy.—Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in section 494 and section 495 of the Indian Penal Code, 1860 (45 of 1860), for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.”

Therefore, bigamy is not permissible in case of Special Marriage Act. The anti- bigamy provisions extend to the marriages solemnized under this Act, including the cases of a Muslim contracting a civil marriage under the Special Marriage Act instead of his own personal laws[12].

The Foreign Marriage Act, 1969 governs solemnization of civil marriages in foreign countries between two Indians or an Indian and a foreigner. Here also, bigamy is impermissible. Section 4(a) of the Act clearly prohibits solemnization of a marriage if either of the parties has a spouse living at the time of such marriage.

“4.Conditions relating to solemnization of foreign marriages.-A marriage between parties one of whom at least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:–

  • neither party has a spouse living

…………”

It is only when this condition is met with that a marriage can be validly solemnized and registered under Section 17 of the Foreign Marriage Act, 1969. Punishment for bigamy is prescribed under Section 19, Foreign Marriage Act, 1969.

19. Punishment for bigamy.-(1) Any person whose marriage is solemnized or deemed to have been solemnized under this Act and who, during the subsistence of his marriage, contracts any other marriage in India shall be subject to the penalties provided in section 494 and section 495 the Indian Penal Code (45 of 1860) and the marriage so contracted shall be void.

(2) The provisions of sub-section (1) apply also to any such offence committed by any citizen of India without and beyond India.”

The anti-bigamy provisions of the Foreign Marriage Act, like those of the Special Marriage Act 1954, are applicable to all cases governed by it, irrespective of the religion of the parties.[13] The provision is applicable to all the cases governed by it irrespective of the religion of the parties, as in the case of the Special Marriage Act.

In case of conversion to another religion after being married, the anti- bigamy provisions would still apply as mentioned under the Special Marriage Act and the Foreign Marriage Act. Therefore, a person contracting a marriage under either of the above mentioned Acts after conversion, while the first marriage is still subsisting, which was solemnized under the personal laws, would attract the provisions against bigamy under the Indian Penal Code.

In case of marriages solemnized under the Muslim laws however, the provisions regarding bigamy under the IPC apply only to women. Therefore, a second marriage by a married woman would make the second marriage void. The provisions would not however apply to married men as per the traditional Muslim law. Men under Muslim laws are free to contract plural marriages and bigamy therefore wouldn’t be punishable in their case.

In Islam, marriage is a contract and not a sacrament, and whatever sanctity attaches to it, it remains basically a contractual relationship between the parties.[14]The idea behind marriage under Islam is procreation of children and mutual enjoyment. Sex therefore becomes the foundation of marriage. In such a situation, marriages contracted by the husband can extend upto four marriages at the same time. It is not necessary for the prior marriages to be dissolved.

Thus, in case of marriages under Muslim laws, P a male following Islamism can be married to females A and B at the same time. This would not amount to bigamy which is punishable under the Indian Penal Code. However, a Muslim female can only be married to one male at a time. Therefore, bigamy is permissible only to the male and not to the female under the Muslim laws.

It has been judicially affirmed that Section 494 of the Indian Penal Code will not apply to the members of the Scheduled Tribes unless the tribal law applicable to a case treats a bigamous marriage as void.[15]

The question with respect to conversion to Islamism thereby contracting further marriages was examined by the Supreme Court in Sarla Mudgal v. Union of India[16]. The Court while highlighting the importance and necessity of Article 44 made observation that prosecution under Section 494, IPC can be avoided only when both the first and the second marriages contracted by the male were under the  laws. If the first marriage was initiated under other personals laws, and then the spouse converted to Islamism and contracted the second marriage, prosecution against such second marriage can be initiated on the grounds of bigamy. This view was reaffirmed by the Supreme Court in Lily Thomas etc. etc. v.Union of India[17]

“36. The position under the Mahomedan Law would be different as, in spite of the first marriage, a second marriage can be contracted by the husband, subject to such religious restrictions as have been spelled out by Brother Sethi, J. in his separate judgment, with which I concur on this point also. This is the vital difference between edan Law and other personal laws. Prosecution under S. 494 in respect of a second marriage under edan Law can be avoided only if the first marriage was also under the edan Law and not if the first marriage was under any other personal law where there was a prohibition on contracting a second marriage in the life-time of the spouse.”

It has been observed time and again that polygamy is not encouraged amongst Muslims and is not seen as a rule. It is rather an exception not being a fundamental right of the husband. The Koran further speaks of the conscience of the obligation of the husband to maintain equality amongst the wives and the same shall be judged based on the perspectives of the wives and not the husband. Thus, any wife in a polygamous marriage can speak of the unequal treatment, thereby making the woman as the keeper of conscience.

The Koran specifically states the following lines, “You may marry two, three or four wives, but not more… but if you cannot deal equitably and justly with all, you shall marry only one.” The proviso therefore adds the extreme importance of ‘equity’ to it, without which polygamy shall not be permissible.

It may therefore be concluded that Bigamy under the Indian Penal Code, 1860 is a non-cognizable offence, bailable and compoundable with the permission of the court.It is also made punishable under theChristian Marriage Act, 1872; Parsi Marriage and Divorce Act, 1936; Special Marriage Act, 1954; Hindu Marriage Act, 1955; Foreign Marriage Act, 1969.

Marrying for the second time when the first marriage is still subsisting is against the rules and customary practices of Hindus, Christians, Parsis, but not the Muslims. Islam allows polygamy, however the same cannot be perceived as a fundamental right. Moreover, it is essential there for the husband to maintain equality between all the wives, that being the sine qua non. The same is to be judged from the perspective of the wife and not the husband.

It is also essential for the spouse to inform the partner of the second marriage of the first marriage which was dissolved. Deceiving the spouse of the second marriage is made punishable under Section 495, Indian Penal Code, 1860.

Illustrations

i. A and B solemnized their marriage under the Hindu laws. A after a couple of months married Q, while his marriage with B was still subsisting. B can file a suit for divorce on the grounds of bigamy.

ii.  P who was married to Q converted to Islamism with the intention of getting married X. P later contracted his second marriage with X. He claimed that the second marriage was permissible as polygamy was permissible under Islamic law. However, this would amount to Bigamy.

iii.  X was married to Y. Y went missing after a couple of months for more than 7 years. His whereabouts were unknown for all this duration and could not be found despite all the notices. X thus married A. This would not amount to Bigamy

iv. T who is a Muslim, married K under the Islamic laws. Later, T married L. K here cannot file a suit on the grounds of bigamy as Islamism allows bigamy.

Frequently Asked Questions

1.      What does Bigamy mean?

Bigamy is the act of contracting a second marriage while the first marriage is still subsisting. This means that such a person already had a spouse living at the time of contracting the second marriage. The offence is punishable under Section 494 of the Indian Penal Code, 1860.

2.      Is bigamy punishable only under personal laws?

Bigamy is punishable under the personal laws as well as the Indian Penal Code, which applies to all marriages apart from a marriage contracted under the Muslim laws. Therefore, bigamy if committed by a person whose marriage has been contracted under the Hindu Marriage Act or the Parsi Marriage and Divorce Act or the Christian Marriage Act, shall be made punishable as per the provisions of the respective Acts, which further direct to Sections 494 and 495 of the Indian Penal Code, 1860.

3. What is the law with respect to bigamy under the Muslim laws?

Muslim laws allow polygamy by the husband and not by the wife. The husband can therefore have 4 wives simultaneously and the same would not be punishable under the anti-bigamy provisions. However, polygamy cannot be understood to be a fundamental right of the husband. He is required to maintain equality between all the wives he has and the same shall be perceived from the perspective of the wife and not the husband.

Therefore, the anti-bigamy provisions as mentioned under Section 494 and 495 of the Indian Penal Code would not apply to marriage (nikah) contracted under the Muslim laws.

Edited by Parul Soni
Approved & Published – Sakshi Raje

Reference

[1]Champa Devi v. Lt. Governor of Delhi & Ors. RSA 403/ 2015.

[2] Accord Catholic Marriage Care Service “A Sacramental Marriage”

https://www.accord.ie/resources/articles/a-sacramental-marriage.

[3]Marriage, Black’s Law Dictionary Online (2nd ed.), https://thelawdictionary.org/marriage/.

[4]Bhaurao v. State of Maharashtra AIR 1965 SC 156.

[5] 32 Ark 205 (1877).

[6]Indian Penal Code, 1860.

[7]Section 13, Hindu Marriage Act, 1955.

[8]Indian Penal Code, 1860.

[9]Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat and Ors. 2016 GLH (2) 142.

[10]Sections 4 and 5, Parsi Marriage and Divorce Act, 1936.

[11]Section 4(a), Special Marriage Act, 1954.

[12] S. RadhikaSameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad 1997 CriLJ 1655 (AP).

[13]Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat and Ors. 2016 GLH (2) 142.

[14]KhurshidBibi v. Baboo Muhammad Amin (12.10.1966 – SCPK) : LEX/SCPK/0048/1966.

[15]Surajmani Stella Kujur (Dr.) v. DurgaCharanHansdah AIR 2001 SC 938.

[16] AIR 1995 SC 1531

[17] AIR 2000 SC 1650

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