Bigamy a concept: India’s stand on it

Published on July 27, 2022 at 13:27 IST

By Tashmayee Sarkhel

This article includes the concepts of bigamy, historical anti-laws against it, its stand in different countries, under different personal laws, a case about it, and punishments related to it.

Bigamy is the act of marrying someone else while still legally married to someone else in societies where monogamy is required. The couple’s marital status as married persons is unaffected by their legal or de facto separation. Bigamy rules do not apply to couples who live together in a de facto or cohabitation relationship, or who enter such partnerships while legally married. If the previous marriage is declared null and void for any reason, the pair is no longer married, and each party is free to marry another without violating the bigamy laws.

History of anti-laws against bigamy:

In most nations, bigamy is illegal since only monogamous marriages are recognized. When this happens, neither the first nor the second spouse is usually aware of the other. With a few exceptions (such as in Egypt and Iran), approval from a previous spouse has no bearing on the legitimacy of the second marriage, which is normally regarded as a void in nations with bigamy laws.

Diocletian and Maximian issued stringent anti-polygamy laws in 285 AD, mandating monogamy as the only lawful marriage arrangement, as had been the case in classical Greece and Rome. Theodosius I, the Roman Emperor, issued an imperial edict in 393, prohibiting polygamy among Jewish communities. In the year 1000, Rabbi Gershom ben Judah decided that polygamy was forbidden for Ashkenazi Jews residing in Christian societies.

The legal situation in different situations:

Polygamous marriages are not recognized in most Western countries, and bigamy is considered a felony. A polygamous lifestyle is also prohibited in certain nations. This is the case in several states in the United States, where anti-Mormon statutes were used to criminalize polygamy, albeit these laws are rarely implemented. Consular wives from polygamous countries are occasionally exempt from a general prohibition on polygamy in host countries under diplomatic law. However, only one spouse of a polygamous diplomat may be accredited in certain of these countries.

• Australia: (Illegal) Up to five years of imprisonment.
• Belgium: (Illegal) Five to ten years of imprisonment.
• Egypt: (Legal) for men if the first wife consents.
• Libya: (Legal) for men with conditions.

Bigamy in India:

In India, bigamy is illegal under Section 494^[1] of the Indian Penal Code. The law states that if a person marries another person during the lifespan of an existing spouse, the marriage should be considered void and the offender should be punished. If a person marries more than once during the life of his first spouse, he or she should be penalized with a sentence of up to seven years in prison and a fine.

In ancient India, bigamy was not strictly forbidden, but it was also not widely practiced. Among Hindu nobility and rulers, it was commonly done. Hindu women have traditionally had to practice monogamy. When a wife is barren, ill, or vicious, she can be superseded, and the second marriage can be lawful, according to Manusmriti, one of the Hindu jurisprudence sources. If a Hindu man marries a second wife who is not barren or sick, she and her son will always have priority over the other wife and her son.

The Privy Council of the British Empire ruled that a Hindu man may not marry again without his first wife’s consent. Except for Muslims, personal law was defined after independence, and bigamy was outlawed across the board, regardless of faith. Bigamy was also made illegal by the Parsi Marriage and Divorce Act, 1936^[2], which regulates the Parsis in India.

Regulation of bigamy under Indian Personal Laws:

• Hindu Marriage Act, 1955^[3] – According to Section 17^[4] of the Hindu Marriage Act, 1955, if a person who is regarded as a Hindu under the Act marries another person while his or her first marriage is still in effect, i.e., while the first husband or wife is still alive, that person would be penalized under the Indian Penal Code.
• Muslim Women (Protection of Rights on Divorce) Act, 1986^[5] – Unlike other religions, this Act has no unique or specific rules for bigamy. If a Muslim man can treat and respect all of his women equally, he has the right to marry twice, thrice, or four times. He is responsible if he fails to do so.
• Parsi Marriage and Divorce Act, 1936 – Bigamy is declared null and void or dissolved under Section 5^[6] of this act, and punishment is imposed under Sections 494^[7] and 495^[8] of the Indian Penal Code, 1860.
• Christian Divorce Act, 1896^[9] – This act does not contain a particular rule against bigamy; however, Section 60^[10] of the Indian Penal Code stipulates that none of the parties to a marriage should have been married previously and that anyone who provides a false oath or statement is penalized under Section 193^[11] of the Indian Penal Code. This clause clarifies that under this Act, multiple marriages are considered illegal.
• Special Marriage Act, 1954^[12] – Bigamy is punishable under Sections 494 and 495 of the IPC, 1860, according to Section 44^[13] of this Act.

Bigamy under Indian Criminal Law:

• Indian Penal Code – If her husband forms a second marriage, the first wife can bring a complaint against him under the Indian Penal Code. Sections 494 and 495 of the Indian Constitution deal with bigamy.
• Evidence Act – According to Section 114^[14] of the Evidence Act, the Court must presume the existence of likely facts based on human conduct and the normal course of events, using common sense as the judicial instrument.

Sarla Mudgal v. Union of India:

Our Constitution guarantees the right to practice and profess any religion, including the right to convert to a religion not ascribed to one by birth. This provision, however, is sometimes abused due to the diversity of religions and personal laws. Under the IPC, bigamy is illegal regardless of faith, except for tribes or groups whose personal law, such as Muslim law, recognizes polygamy.

The Hindu Marriage Act of 1955 makes no provision for a person who marries after conversion. It asserts that a subsequent marriage between two Hindus is null and void if their partner is still alive and they haven’t divorced. In the landmark decision of Sarla Mudgal & Ors. v. Union of India^[15], the Supreme Court examined this subject in-depth and resolved the ambiguity surrounding the rights, duties, and obligations of those who change faith to avoid the law. The court ruled that changing one’s religion does not allow one to circumvent the law and commit bigamy.

Facts of the case –

• There were four petitions filed in the Supreme Court under Article 32^[16] of the Indian Constitution that were heard together. Firstly, in Writ Petition 1079/89 where there were two petitioners. Petitioner 1 was Sarla Mudgal, the president of a registered society called Kalyani, which was a not-for-profit organization, working for the welfare of needy families and distressed women. Petitioner 2 was Meena Matur, who was married to Jitender Mathur in 1978 and had three children born out of wedlock. Petitioner 2 found out that her husband had married another woman, Sunita Narula alias Fathima, after they both converted themselves to Islam. She contends that the conversion of her husband to Islam was only to marry Sunita, thereby avoiding Section 494, IPC. The respondent asserts that after converting to Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.
• Sunita Narula alias Fathima filed another suit, Writ Petition 347/1990, in which she claimed that she and the respondent converted to Islam to marry and that a child was born out of wedlock. The respondent, however, gave a promise in 1988 under the influence of Meena Mathur that he would return to Hinduism and maintain his first wife and three children. She was not being supported by her husband and had no protection under any of the personal laws because she continued to be Muslim.
• A Writ Petition 424/1992 petition was filed before the Supreme Court. Geeta Rani, the petitioner, married Pradeep Kumar according to Hindu traditions in 1988. The Petitioner learned in December 1991 that her spouse had converted to Islam and married another woman, Deepa. The entire goal of the conversion to Islam, according to the Petitioner, was to facilitate a second marriage.
• Finally, in 1984, Sushmita Ghosh, the petitioner in Civil Writ Petition 509/1992, married G.C. Ghosh according to Hindu rites. Her husband/respondent urged her to submit to a mutual agreement divorce in 1992 since he no longer wanted to live with her. When the petitioner pressed him further, he confessed that he had converted to Islam and planned to marry Vinita Gupta. She sought in the writ suit that her husband is barred from marrying again.

Issues to the case –

• Is it possible for a Hindu husband who was married under Hindu law to marry again after converting to Islam?
• Is it possible that such a marriage would be valid for the first wife who is still Hindu if the first marriage had not been legally dissolved?
• Is the apostate husband guilty of the crime under Section 494 of the Indian Penal Code?

Judgment of the case –

• Certain rights and status are obtained by both parties when they marry under the Hindu Marriage Act of 1955, and if one of the parties is allowed to dissolve the marriage by adopting and executing a new personal law, it would undermine the existing rights of the spouse who remains Hindu. A marriage performed under the legislation can only be annulled for the reasons specified in Section 13^[17] of the same act. Neither of them can marry again until this is completed. As a result, an apostate’s second marriage would be illegal to his wife, who married him under the Act and is still Hindu. It went on to say that such a marriage is against justice, equity, and conscience. It went on to say that such a marriage is unjust, unequal, and unconstitutional. It also underlined the importance of bringing harmony between the two legal systems, just as it does between communities.
• The court found the apostate husband guilty under IPC Section 494. The terms “void” and “voidable” are used differently in the Hindu Marriage Act of 1955 and the Indian Penal Code. Converting to Islam and remarrying would not dissolve the previous Hindu marriage under the Act on its own, but it would constitute a basis for divorce. The components of Section 494, as stated in detail in the preceding section, indicate that the second marriage would be null and void and that the apostate husband would be culpable under the IPC.
• The court argued that the Uniform Civil Code (hereafter UCC) is required in the Indian legal system to prevent Indians from violating one another’s law. The court also ordered the Indian government, through the Secretary of the Ministry of Law and Justice, to provide an affidavit detailing the actions taken by the government to secure a UCC for Indian citizens.

Punishment for bigamy in India:

In India, bigamy is a non-punishable offense. If the offense is committed under Section 494 of the IPC, it is bailable and compoundable with the approval of the court. Bigamy has a maximum sentence of seven years in prison, a fine, or both in some situations. If the individual accused of bigamy has performed the second marriage while hiding the fact of the prior marriage, he faces up to ten years in prison, a fine, or both. A violation of Section 495 is not compoundable.

Conclusion:

With the social shame linked to second wives and the legal loopholes that exist to protect them, these women are not properly cared for. These women have been suffering from the agony of being cheated on in a marriage and having no legal rights to defend them from time immemorial. Legislators must examine these women’s rights and enact specific legislation to end the practice of bigamy in India.

Author – Tashmayee Sarkhel, currently pursuing a B.A.LL.B. (Hons.) at University Law College and Department of Studies in Law, Bangalore University.

1. The Indian Penal Code, s.494 ↑

2. Parsi Marriage and Divorce Act, 1936 ↑

3. Hindu Marriage Act, 1955 ↑

4. Hindu Marriage Act, 1955, s.17 ↑

5. Muslim Women (Protection of Rights on Divorce) Act, 1986 ↑

6. The Indian Penal Code, s. 5 ↑

7. The Indian Penal Code, s. 494 ↑

8. The Indian Penal Code, s.495 ↑

9. Christian Divorce Act, 1896 ↑

10. The Indian Penal Code, s.60 ↑

11. The Indian Penal Code, s.193 ↑

12. Special Marriage Act, 1954 ↑

13. Special Marriage Act, 1954, s.44 ↑

14. The Evidence Act, s.114 ↑

15. Sarla Mudgal & Ors. v. Union of India,1955, AIR1531 ↑

16. The Indian Constitution, a.32 ↑

17. The Hindu Marriage Act of 1955, s.13 ↑