Bigamy and cohabitation are the two distinctive words which are related in terms of two individuals and their marriage status. Bigamy as a term is constituted of two words which is ‘bi’ and ‘gamy’ which means ‘two’ and ‘marriage’ respectively. As a whole it is defined as the act of entering into another conjugal relationship during the subsistence of first marriage being legally performed. The practice of monogamy has been observed from Vedic times but exception of bigamy has also been existed side by side as the writings of Manu indicated allowance of second marriage after the death of first wife .Another text justifies that it was permissible only when the wife was suffering from vicious disease and had consented to it and second marriage to be considered as valid marriage.
But in today’s context it is strictly prohibited and considered as an offence under Indian Penal Code, 1860 under Section 494 which states that whosoever has husband or wife living at the time of second subsequent marriage, it will make such subsequent marriage void and shall be punished with imprisonment for a duration which may extend to seven years and shall also be liable to fine. Bigamy is made punishable so as to prevent the divorce cases and to ensure conjugal happiness.
Under Hindu law, bigamy is one of the grounds of the void marriage which makes the marriage null in essence as it contravenes the condition specified in clause (i) of Section 5 which makes monogamy as an essential condition for a valid Hindu marriage and even under Section 17 of the Hindu Marriage Act, 1955 it has been stated that bigamy is punishable and provisions of Indian Penal Code shall apply.
It will thus be been that this section lays down two things First, when a person remarries after the commencement of the Hindu Marriage Act, 1955, if on the date of the marriage he or she has a spouse living of the earlier marriage, such marriage is void; and secondly, the provisions of Section 494 and 495, Indian Penal Code, 1860, shall apply accordingly to such marriages. Under the prior Hindu law, Polyandry was unlawful but polygamy was lawful. The Hindu Marriage Act, 1955, now enforces monogamy.
Ingredients of Section 495 –
1. First marriage must be a valid marriage – The prior marriage must be in accordance with conditions of valid marriage which includes there must be proper solemnization of marriage and conditions for Hindu marriage must be satisfied.
2. The person to whom the accused was married was alive
3. The accused married another person;
4. The accused when marrying the second time concealed from the person whom the accused married the fact of the first marriage.[i]
If A marries B, a person within prohibited degrees of affinity, and during B’s lifetime marries C, A has not committed bigamy. In order that an offence of bigamy can be committed, there must be at the time of the second ceremony of marriage a previous valid subsisting marriage.
Landmark case laws
Sarla Mudgal Union of India[ii]–
The Supreme Court held that the second marriage of a Hindu husband after embracing Islam is violative of justice, equity and good conscience. Such marriage would also be void and attract the provision of the Section 494.
Lily Thomas Union of India[iii]
An apprehension expressed that in view of judgment of Sarla Mudgal, men having undergone second marriage under Muslim law after conversion would be liable to be convicted without any further proof, was held to be without substance in as much as the person seeking conviction of the accused for a commission of offence under Section 494, is under a legal obligation to prove all the ingredients of the offence charged and conviction cannot be based upon mere admission made outside the court. To attract the provisions of Section 494, the second marriage has to be proved besides proving the previous marriage. Such marriage is required to be proved to have been celebrated with proper ceremonies.
In this case, the husband and wife takes divorce by mutual consent. But on appeal by wife, decree of divorce set aside by appellant court. Husband contracting second marriage after about one month of setting aside decree of divorce. Evidence on record showed that husband was not aware of setting aside decree of divorce when he got married. The court held that no offence under Section 494, Indian Penal Code, 1860, made out.
Under Section 494, Indian Penal Code, 1860 the criminality of the second or subsequent marriage depends upon the practice of the caste or race to which the accused belongs. If polygamy or polyandry was sanctioned by usage, one could not be convicted for doing an act in conformity with custom – nor could the law enforce monogamy upon people.
Other aspect dealing with marital status of two individual is cohabitation whose literal meaning is to live with someone and share one common roof which can be possible by legally getting married or an unmarried cohabitation in which unmarried couples resides together resembling a marital relationship but not an actual marriage. The unmarried cohabitation is also called live in relationship which in simple terms can be stated as the relationship existing between two partners who without mutual obligations towards each other reside together to check the compatibility between them and if problem arises , they are free to exit from such relationship as there is no law bounding them .
The Indian Law is silent on live in relationship status and doesn’t provide any rights to the parties entering in it but certain landmark judgments of Supreme Court has provided clarification to this concept which are –
Badri Prasad vs Dy. Director of Consolidation[v]
The very foremost case which recognized the concept of live in relationship and held it as a valid marriage as in this, the fifty years relationship of a couple was given legal sanctity as a valid marriage as the long term relationship presumes strongly that a wedlock had been created out of it .
Indra Sarma v V.K.V.Sarma [vi]
This case illustrated five key points where live in relationship is considered and proved in court of law are highlighted as –
1. Uncomplicated sort of domestic relationship between an adult male and adult female.
2. Between a married man and an adult unmarried woman with previous knowledge
3. Between an adult unmarried man and a married woman entered with knowledge
4. Between an unmarried adult female and a married male
5. Between same sex individuals whether gay or lesbians
The court also stated that live in relationship is to be recognized under the phrase “relationship in the nature of marriage” under Section 2(f) of the Protection of women Against Domestic Violence Act, 2005 and established certain guidelines in accordance with it.
Tulsa & Ors vs. Durghatiya & Ors[vii]
In this case, the Supreme Court held that child born out of live in relationship are to be considered as legitimate child and has the legal right to attain property of its respective parents with ultimate legality.
Though in the society the unmarried cohabitation is considered to be immoral and against the customs, but it has been observed by the Supreme Court as legal and considered as one of the part of the ‘right to life’ and in coming years it is expected that a separate legislation regarding this will be created in order to create rights and obligations of the parties entering into it.
Comparative analysis in different countries
In Canada, the bigamous marriage has been prohibited under Section 290 of the Criminal Code and is covered under polygamous relationships which is considered as a criminal offence under Section 293.
In Iran the concept of bigamy is considered to be legal if there is the valid consent of first wife but it is rarely practiced.
In Malaysia , it is considered illegal for non-Muslims under federal jurisdiction. Under section 494 of Chapter XX of the Penal Code, non-Muslim offenders found guilty of bigamy or polygamy can be punished up to 7 years imprisonment.
Frequently Asked Questions (FAQs)-
1. Are bigamy and adultery same thing?
Bigamy and adultery are offences of different nature and are not similar as bigamy can be committed by either man or woman but in adultery it is restrictively committed by man only. The other dissimilarity is that in bigamy it is important that second marriage is necessarily performed and is in contravention of marriage institution but in adultery, second marriage is not a requisite and is an offence against another man relating to his wife.
2. How does cohabitation affect alimony?
Cohabitation affects alimony as it has no legal sanctity, so it is problematic to grant for alimony but in Indian context under Section 125 of the Criminal Procedure Code, the right of maintenance to wives is extended even to woman who are in live in relationship and thus the Malimath Committee Report and 8th Law Commission recommended inclusion of woman in a live in relationship to be governed within purview of this aforesaid section.
[i] K.D.Gaur, Commentary on the Indian Penal Code, 1402, Edition, 2006
[ii] Sarla Mudgal v. Union of India AIR 1995 SC 1531
[iii] Lily Thomas v. Union of India (2013) 7 SCC 653
[iv] Kannan v. Selvamuttukani 2012(4) RCR (Criminal) 331 (SC)
[v] Badri Prasad V. Dy. Director Of Consolidation & Ors  Insc 119; AIR 1978 SC1557; 1979 (1) SCR1; 1978 (3) SCC 527 (1 August 1978)
[vi] Indra Sarma v. V.K.V. Sarma, Crl. App. No. 2009 of 2013; Decided on 26-11-2013 (SC): 2013 (14) SCALE 448 [K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ].
[vii] Tulsa v. Durghatiya [(2008) 4 SCC 520]
Indian Penal Code , 1860, No. 45