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criminal_laws:bigamy

Bigamy

Marrying again during lifetime of husband or wife

Section 494 Indian Penal Code 1860

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.
Exception. This section does not extend to any person whose marriage with such husband or wifehas 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 beingalive 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

Scope

This section makes the offence of bigamy punishable both as regards a person, having a wife living, marrying another, and as regards a wife, having her husband living, remarrying, in any case in whichsuch remarriage would be void by reason of its taking place during the life of such wife or husband. Ifa woman, having a living husband, marries another man, the person, to whom the woman is remarried, cannot be punished under this section. He can only be charged with abetment of the offence of bigamy.Section 494,IPC, aims to encourage monogamy, and to deprecate/discouragepractice of polygamy.Where a spouse contracts a second marriage while the first marriage is still subsisting, the spouse would be guilty of bigamy if it is proved that the second marriage was a validone in the sense that the necessary ceremonies, required by law or by custom, had been actually performed.The section would come into play only if the second marriage becomes void by virtue ofthe fact that it had taken place in the lifetime of one of the spouses.The section would not beattracted to a marriage between a man, who has a living wife, and woman, who has a living husband,with whom her marriage subsists, such a marriage being no marriage at all.If the second marriage of a Hindu cannot be said to have been solemnized, that marriage will not be void by virtue of s 17 ofthe Hindu Marriage Act 1955, and, therefore, the provisions of this section cannot be attracted.Judges should be particularly careful to see that ss 494, 497 and 498, IPC, are not abused for thepurpose of private spite or persecution.

Bigamy--Non-filing of complaint by wife

Where the husband contracts second marriage during the lifetime of the first wife, the non-filing of thecomplaint under s 494, IPC by the first wife does not mean that the offence is wiped out, andmonogamy sought to be achieved by means of s 494, IPC merely remains in the statute book.

Applicability

As regards its applicability, the section makes no distinction on the basis religion. The sectionapplies to Hindu,Christians,Jews,and Parsis, of either sex, and Muslim females. A Muslim wife, marrying during the subsistence of an earlier marriage, can be punished under this section. Similar is the case with a Muslim husband who marries a fifth wife during the subsistence offour earlier marriages. Again, a Muslim, who marries under the Special Marriage Act 1954, is liable topunishment under the section if he marries during the subsistence of the first marriage.It may benoted that the section applies only to those cases in which a second marriage is 'void' during thelifetime of a spouse. It does not apply to cases in which the polygamous marriages are permitted. However, the punishment, provided by this section, cannot be evaded by pleading Islam, unless theplea is founded on some exemptions recognised by law.

The provisions of the Hindu Marriage Act are not applicable to the Gond community, second marriagein the community is valid as per customary law, and the provisions of s 494, IPC, are not attracted.

Section 494 and Section 498A -Distinction

The offence under s 494, IPC, is a distinct offence from s 498A, IPC . These two offences are not cognate offences and therefore, one cannot be considered to be a major offence and the other to be aminor offence, and so would not attract the legal position that the person can be convicted for theminor offence if the major offence is not established.

Section 494 , IPC And Sections 11 and 15 of the Hindu Marriage Act 1955

Section 494 , IPC, will only apply in case either spouse having the other spouse living, again marries and such marriage is void by reason of it taking place during the lifetime of the first wife under s 11 of the Hindu Marriage Act, a marriage solemnised in contravention of the conditions specified in clause (i),(iv) and (v) of s 5 of the Hindu Marriage Act is null and void and can be so declared by a decree ofnullity on a petition presented by either party thereto, there is no provision in the Act making amarriage solemnised in contravention of s 15 of the Act as void. A marriage solemnised incontravention of s 15 of the Hindu Marriage Act is not void and therefore, even prima facie no caseunder s 494, IPC, is made out.457.

Section 494 , IPC and Article 25 of the Constitution

The rule of monogamous marriage amongst Hindus was introduced with the proclamation of HinduMarriage Act 1955. Section 17 of the Hindu Marriage Act provided that any marriage between two Hindus solemnised after the commencement of the Act shall be void if at the date of such marriage either party had a husband or wife living, and the provisions of ss 494 and 495 of the IPC (45 of 1860), shall apply accordingly. The second marriage solemnised by a Hindu during the subsistence of first marriage is an offence punishable under the IPC . Freedom guaranteed under art 25 of the Constitution is such freedom which does not encroach upon a similar freedom of the otherpersons. Under the constitutional scheme, every person has a fundamental right not merely toentertain the religious belief of his choice, but also to exhibit his belief and ideas in a manner whichdoes not infringe the religious right and personal freedom to others.

Making a convert Hindu, who has taken second wife after conversion, liable for prosecution under s494, IPC is not against Islam, the religion adopted by such person upon conversion. Saying that itwould be against Islam demonstrates the ignorance about the tenets of Islam and its teachings. Theconcept of Muslim law is based upon the edifice of Shariat. Muslim law as traditionally interpreted andapplied in India permits more than one marriage during the subsistence of one, though capacity to dojustice between co-wives in law is condition precedent. Even under the Muslim law plurality ofmarriage is not unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic law to urge that the convert is entitled to practice bigamy, notwithstanding the continuance ofhis marriage under the law to which he belonged before conversion. The violators of law who havecontracted the second marriage cannot be permitted to urge that such marriage should not be madesubject-matter of prosecution under the general penal law prevalent in the country.

Essential Ingredients

To constitute an offence under this section, the following essential ingredients must exist:

(a) the accused spouse must have contracted the first valid marriage; (b) the accused spouse must have also contracted a second marriage when the previous valid marriage was subsisting, meaning thereby that there must be, at the time of secondceremony of marriage, a previous valid subsisting marriage; and (c) both marriages must be valid in the sense that the necessary ceremonies, required bythe personal law, governing the parties, had been duly performed.

In the absence of any of the said ingredients, no offence under this section would be committed, i.e., if the first marriage is null and void, there would be no offence of bigamy in contracting a second marriage.

Precedent

In the case of State of Punjab v Surinder Kumar while considering the question of precedents, the Supreme Court has observed that 'a decision is available as a precedent only if it decides a question of law'.

In the case of Amica Quarry Works v State of Gujarat the Supreme Court has laid down that:The ratio of any decision must be understood in the background of the facts of the case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.

A three-judge Bench of the Supreme Court in the case of State Financial Corporation v Jagdamba Oil Mills , has observed thus:

Courts should not place reliance on decisions without discussing as to how the factual situation fits in with thefact-situation of the decision on which reliance is placed. Observations of the Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for the judges to embark into lengthy discussions but thediscussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments.
They interpret words of statutes, their words are not to be interpreted as statutes. Circumstantial flexibility onadditional or different fact may make a world of difference between conclusions in two cases. Disposal ofcases by blindly placing reliance on a decision is not proper.

Similarly in the case of Divisional Controller, KSRTC v Mahadeva Shetty the Apex Court has observed thus :

The decision ordinarily is a decision on the case before the Court, while the principle underlying the decisionwould be binding as a precedent in a case which comes up for decision subsequently. Therefore, while applying the decision to a later case, the Court dealing with it should carefully try to ascertain the principle laiddown by the previous decision. A decision often takes its colour from the question involved in the case in whichit is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond theneeds of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished asobiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty as without an investigation into facts, it cannot be assumed whether a similar direction must or ought to be made as measureof social justice. Precedents sub silentio and without argument are of no moment. Mere casual expressionscarry no weight at all. Nor every passing expression of a Judge, however, eminent, can be treated as an excathedra statement having the weight of authority.

Keeping in view these well settled principles along with the basic fact that in criminal cases normallythe law of precedent is not applicable, as facts of each case always differ, except in respect oftechnical pleas like jurisdiction, limitation, etc., any pronouncement whether of Apex Court or HighCourt in a criminal case is mainly based on appreciation of evidence and may not have the effect ofbinding precedent but have to be considered as guidelines or guiding principles of the Supreme Court.

It is not as if none of the pronouncements of the Supreme Court in respect of criminal cases havebinding precedent. Even in criminal cases where the Supreme Court declares law regarding questionof jurisdiction of court, law of limitation, procedural aspect, etc, it may have binding precedent effect inother cases wherein similar situation is placed. But the fact remains that even in these latter cases,the court is required to see the facts and circumstances of each case and only if they are similar or onparity, it has to implement or follow the binding precedent of the Supreme Court.

In the case of Naib Singh v State of Punjab , the Apex Court has made it clear that there is nothing like precedent in criminal case but there are certain guiding principles. In the case of Shankarlal v State of Maharashtra , the Supreme Court has observed that 'legal principles incantations and theirimportance lies more in their application to a given set of facts than in their recital in the judgment'.

Considering all these decisions of the Supreme Court on the question of precedents or binding natureof its pronouncement, it has to be reiterated that though normally under art 141 of the Constitution ofIndia, the pronouncement of the Supreme Court, which is the law of the land, has binding force on allother courts in the country, it is only the law declared which would be binding on other courts. Hence,so far as the pronouncements of the Apex Court in criminal cases especially like in respect of sentence, amount of compensation, etc, are concerned, normally they do not have any binding forceon other courts except being considered as guidelines or guiding principles.

Religion • Marriage under Hindu Law

Religion is a matter of faith stemming from the depths of the heart and mind. Religion is a belief whichbinds the spiritual nature of man to a supernatural being, it is an object of conscientious devotion, faithand pietism. Devotion in its fullest sense is a consecration and denotes an act of worship. Faith in thestrict sense constitutes firm reliance on the truth of religious doctrines in every system of religion.

Religion, faith or devotion are not easily interchangeable. If a person feigns to have adopted another religion just for some wordly gain or benefit, it would be religious bigotry. Looked at from this angle, aperson who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under everypersonal law is a scared institution. Under Hindu law, marriage is a sacrament. Both have to be preserved.

Islam - A Progressive and Pious Religion -Effect on a Hindu Converting To Islam

The plea that making a convert Hindu liable for prosecution under the IPC would be against Islam, thereligion adopted by such person upon conversion, if raised, demonstrates the ignorance about thetenets of Islam and its teachings. The word 'Islam' means peace and submission. 'In its religious connotation it is understood as submission to the will of god'. According to Fyzee, in its secularsense, the establishment of peace. The word 'Muslim' in Arabic is the active principle of Islam, which means acceptance of faith, the noun of which is Islam. Muslim law is admittedly to be based upon awell recognised system of jurisprudence providing many rational and revolutionary concepts, which could not be conceived by the other systems of law in force at the time of its inception. Sir Ameer Aliin his book Mohammedan Law has observed that the Islamic system, from a historical point of viewwas the most interesting phenomenon of growth. The small beginnings from which it grew up and thecomparatively short space of time within which it attained its development marked its position as oneof the most important judicial systems of the civilised world. The concept of Muslim law is based uponthe edifice of Shariat. Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one, though capacity to do justice between co-wives in law isa condition precedent. Even under the Muslim law, plurality of marriage is not unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic law to urge that the convert is entitled to practice bigamy notwithstanding the continuance of his marriage under the law towhich he belonged before conversion. The violators of law who have contracted the second marriagecannot be permitted to urge that such marriage should not be made subject-matter of prosecution under the general penal law prevalent in the country. The progressive outlook and wider approach of Islamic law cannot be permitted to be narrowed by unscrupulous litigants, who apparently are found tobe guilty of the commission of the offence under the law to which they belonged before their allegedconversion. It is nobody's case that any such convertee has been deprived of practising any otherreligious right of the attainment of spiritual goals. Islam which is pious, progressive and respected religion with rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violators of law.

A Muslim Woman, when not Liable under this Section

A Muslim woman, marrying, during the lifetime of her husband, during the period of iddat, would notbe guilty of bigamy. In Abdul Gani v Azizul Haq , the marriage was dissolved by the apostasy of a Mohammedan husband and the woman married during the iddat. It was held that as the second marriage was not a legal marriage, the woman cannot be said to have gone through the form ofsecond marriage, when her legal husband was alive, and, therefore, she was not guilty of bigamyunder s 494, IPC . In Badal Aurat v Empress,B a Mohammedan girl, whose father was dead, was given in marriage by her mother to J some years before she attained puberty. Prior to herattaining puberty, J was sentenced to a term of imprisonment for theft. The marriage with J was never consummated. B then married P. On being released from jail, J requested B to return to him, but sherefused to do so. It was held that she had the option of either ratifying or repudiating the marriage withJ on attaining puberty, and that no offence under s 494, IPC, is proved.

Apostasy • Effect on Marriage under Hindu Law

The first marriage has to be proved to be subsisting at the time of the second marriage. In mostcases, the change of religion by one of the parties does not involve a dissolution of marriage. There are, however, cases in which the change of religion by one party automatically results in termination ofthe first marriage. In such cases, a subsequent marriage would be taken out of the purview of s 494,IPC . The previous marriage would not be deemed to be subsisting any longer. This depends upon the religion to which the parties to the marriage belong. According to Hindu law, marriage is not dissolved by apostasy. When a Hindu becomes a Mohammedan, his status is not allowed to be governed by the laws of the new faith, but continues to be subject to the law and custom to which he was originally subject.The conversion of a Hindu wife to Mohammedanism does not ipso facto dissolve her marriage with her husband and she cannot, during his lifetime, enter into a valid contract of marriage with another person.The marriage of a chamar woman is not dissolved with her chamar husband by her becoming a convert to Islam and if she marries a second time during the lifetime ofher chamar husband, she would be guilty of an offence under s 494, IPC .The rights of a Hinduhusband are not affected, in any way, by the conversion, to Islam, of his wife and she cannot refuse tolive with him.Where a Hindu woman was duly married according to Hindu rites and, subsequent to the marriage, the woman became a convert to Mohammadanism and then married a Mohammedan, it was held that there is no authority in Hindu law for the proposition that an apostate is absolved fromall civil obligations, and, so far as the matrimonial bond is concerned, the same would be contrary in the sprit of that law which regards it as indissoluble, and that the marriage is not, under the Hindu law,dissolved by conversion of the wife to Nohammadanism. In another case, it was held that a marriage, solemnised in India according to one personal law, cannot be dissolved according toanother personal law simply because one of the parties has changed his or her religion.Where a Brahmin went through a Hindu marriage ceremony with a Brahmin girl but converted to Christianity, itwas held that she continued to be his wife.Now, under s 13 of the Hindu Marriage Act 1955, thehusband or wife is entitled to, get the marriage dissolved if the other party ceases to be a Hindu by conversion to another religion. Till then, conversion per se does not operate as dissolution of the marriage. Where the marriage of the complainant with the accused was admitted and there wasnothing to show that the parties had taken recourse to s 13 of the Hindu Marriage Act 1955, orhad secured a valid divorce according to the custom, the marriage must be considered to be subsisting.

Apostasy • Effect on Marriage under Mohammedan Law

Muslim law took strict view of apostasy, till a change in the law was made under s 4 of the Dissolutionof Muslim Marriage Act 1939. Under the Muslim law, so far as the apostasy of the husband wasconcerned, there was no doubt that it led to the dissolution of marriage. This law was recognised tobe the Muslim law prior to passing of the Act and is still in force. The apostasy of the husband to anyreligion other than Islam was, and is, sufficient to dissolve the marriage. Thus, where the husband apostatised and the wife contracted another marriage, it was held that she was not guilty of bigamy asthe marriage stood dissolved by apostasy of the husband.On the question as to whether the apostasy of the wife caused a dissolution of the marriage, there was some difference of opinion amongst the Muslim jurists. They are discussed by Ameer Ali78 who was of the view that the marriageof a Muslim with a Kitabi woman (such as Jew and Christian) should not affect the status of marriage by apostasy to such a religion. This view was, however, not accepted by the High Courts in India andit was held that apostasy of either party to any religion dissolved the marriage. Apostasy to anynon-Kitabi religion like Buddhism, or Hinduism, would, of course, dissolve the marriage. Thus, a marriage stood dissolved on apostasy to Christiantity, or if Islam is renounced and no religion is professed.The Dissolution of Muslim Marriage Act 1939, has however, made a provision in respectof the apostasy of the wife. Under s 4 of the Act, the apostasy of a Muslim woman 'to a faith other than Islam' shall not now operate to dissolve the marriage except in the case of a woman converted toIslam who re-embraces the former faith, whether Kitabi or non-Kitabi.

'Marries'

The word 'marries', in the section, means marries by some form of marriage known to, or recognisedby, the personal law of the parties concerned. Similarly, the expression 'whoever…marries', in this section, means whoever marries validly orwhoever marries and whose marriage is a valid one.

Second Marriage • When Bigamous

There is some difference between the first marriage, the subsistence of which gives the complainant aright to file a complaint under this section and a second marriage, which can be said to be bigamousfor the purpose of the section. In the case of first marriage, it has to be proved that the marriage waslegally valid, i.e.,

(a) there were no legal impediments to the contracting of such marriage; and (b) the marriage was performed according to the minimum ceremonies necessary for its validity.

If the marriage is not found to be valid according to either of the said test, no offence of bigamy will bemade out. On the other hand, in the case of a second marriage, it is not necessary that the marriage should be otherwise valid according to law apart from the fact that a spouse is living (the fact,that parties are within the prohibited degrees, will not prevent the marriage from being bigamous), but it is necessary that the ceremonies, essential to a marriage, are duly performed. Thus, while the absenceof legal impediments is required for determining the validity of the first marriage, the impediments are not to be considered for treating a second marriage as bigamous. The section does not refer to a valid marriage. A bigamous marriage cannot be a valid marriage.If the first marriage is valid, it would bebigamy to marry again, notwithstanding any special circumstances, which, independently of the bigamous character of the marriage, may constitute a legal disability in the parties or make the form ofmarriage resorted to inapplicable to their case.It was held, in Payari v Faqir Chand Alakha ,that the section does not require that the second marriage with the person concerned must otherwise bevalid according to law. However, the validity of form of marriage is required in the case of both the marriages. Where, therefore, either of the two marriages is found to be not duly solemnised, the position would be that in the eyes of law, there is only one legal and valid marriage making the chargeof bigamy unsustainable.

While it is not necessary, in order to attract the provision of this section, to prove that the second marriage was legally valid (i.e., without any legal impediments), it is necessary to prove that the accused went through some form of marriage the parties is a must for a conviction on a charge of bigamy; which, but for the existence of the impediment of the first marriage, would have been recognised as marriage, valid in form by the law, under the form, of which it was celebrated. In otherwords, in order that an offence under this section may be committed, it is necessary, atleast, that all the ceremonies, which are necessary to be performed in order that a valid marriage may take place,ought to be performed and, ordinarily, all these ceremonies would amount to a valid marriage,but for the fact that the marriage becomes void on account of the existence of a previous wife.Where a spouse contracts a second marriage when the first marriage is still subsisting, the spousewould be guilty of bigamy under s 494, IPC, if it is proved that the second marriage was a valid one inthe sense that the necessary ceremonies, required by law or by custom, have been actually performed. The voidness of the marriage under s 17 of the Hindu Marriage Act 1955, is, in fact, one ofthe essential ingredients of s 494, IPC because the second marriage will become void only because ofthe provision of s 17 of the Hindu Marriage Act.Merely going through certain ceremonies, with the intention that parties be taken to be married, will not make the ceremonies prescribed by law orapproved by any established custom.Similarly, mere keeping of a concubine or mistress is not sufficient to attract the provisions of the section.If there is no satisfactory evidence of the performance of ceremonies of a valid marriage, no offence under s 494, IPC, would be made out.Proof of getting the marriage registered at a caste organisation by payment of necessary fees is notsufficient to prove that the marriage in question was contracted.

The test for deciding whether all the necessary ceremonies for a valid marriage were performed is: willthe union through the alleged marriage constitute a valid marriage if the other spouse were not living?

This can be determined by a applying the test: will the wife, if former wife were not living, be entitled toclaim maintenance as a married wife and will the children, born of the union, be deemed born in or outof wedlock? If these tests are satisfied, it will be open to the court, while considering the facts of an individual under this section, to presume that all the necessary ceremonies had been undergone. If the marriage is valid according to the customary rites, it would be complete and binding. In the Reddy community in Telangana area, the essential ceremonies must be tying of mangalsutra and putting thetoe-ring, throwing rice over each other's head and the ceremony connected with the yoke. If theseceremonies are performed, the marriage of a Reddy couple gets completed and is binding on the parties.

First Marriage under Mohammedan Law • Second Marriage under Special Marriage Act 1954 is Bigamous

Section 43 of the Special Marriage Act 1954 is given below:

S. 43 . Penalty on married persons 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 besolemnised under this Act shall be deemed to have committed an offence under section 494 or section 495 ofthe Indian Penal Code, 1860 (45 of 1860), as the case may be, and the marriage so solemnised shall be void.

It is no doubt true the personal law applicable to Muslims in India does contemplate of four marriagesby a muslim male. Notwithstanding the fact that personal law permits a Muslim male to contract four marriages, if a second marriage is contracted under the Special Marriage Act 1954 vis-à-vis the factthat a Muslim male has a legally wedded wife who has been married to him under the Mohammedan law, s 494, IPC, has to claw at the erring male. The accused cannot take refuge behind the falacious contention that he had contracted the second marriage with a Muslim woman by virtue of theexception enshrined in Mohammedan law. Mohammedan law does not claim precedence over Special Marriage Act 1954 keeping in view that the accused solemnised his first marriage underMohammedan law and he contracted his second marriage under the Special Marriage Act. Therebeing no saving clause for the accused to purge him of the charges under s 494, IPC, the accused isliable to be punished under s 494, IPC .

First Marriage under Special Marriage Act 1954--Second Marriage under

Mohammedan Law is Bigamous Section 44 of the Special Marriage Act lays down:

S. 44 . Punishment of bigamy • Every person whose marriage is solemnized under this Act and who, duringthe lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penaltiesprovided in sections 494 and 495 of the Indian Penal Code, 1860 (45 of 1860), for the offence of marryingagain during the lifetime of a husband or wife, and the marriage so contracted shall be void.

Dealing with a case arising under s 16 of the Old Special Marriage Act 1872, which is in parimateriawith s 44 of the present Act, a Division Bench of the Madras High Court in Vaidyanathan v Abdul Allam held: Section 16, Special Marriage Act, provides that a person married under it, who, during the lifetime of his or herwife or husband contracts another marriage, shall be subject to the penalties provided in ss 494 and 495,Penal Code, for the offence of marrying again during the lifetime of a husband or wife, whatever may be thereligion which he or she professed at the time of the second marriage. Therefore, a person married under theSpecial Marriage Act commits bigamy if he marries again during the lifetime of his spouse, and it matters notwhat religion he professes at the time of the second marriage. The Special Marriage Act clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely changing his religion.

If a Muslim male marries under the Special Marriage Act 1954 and then enters into a second marriageunder Mohammedan law, he would be liable to be prosecuted for the offence of bigamy. Where the parties are Muslim, charge of bigamy would fail.

Second Marriage must be Void in Law

To constitute an offence of bigamy, the second marriage must be void by reason of its taking placeduring the lifetime of a former legal wife or husband, as the case may be. The void nature of thesecond marriage is, in fact, one of the essential ingredients of this section.The voidness of the marriage under s 17 of the Hindu Marriage Act is in fact one of the essentialingredients of s 494, IPC, because the second marriage will become void under this provision of law.

What s 17 of the Hindu Marriage Act contemplates is that the second marriage must be according tothe ceremonies required by law. If the marriage is void, its voidness would only lead to civil consequences arising from such marriage. Section 17 of the Hindu Marriage Act has to be read inharmony and conjunction with s 494, IPC . Therefore, merely because the second marriage is voidunder s 17 of the Hindu Marriage Act, it cannot be said that s 494, IPC, will not be attracted.

However, the word 'void' is not to be used in the technical sense in which it is used in theMohammedan law. The IPC makes no distinction between a void marriage and an invalid marriage,and the term 'void' used therein covers marriages of both classes.A second marriage would not bebigamous (i.e., void) when the accused spouse contracts it

(a) after the marriage with the formerhusband or wife has been declared void by a court of competent jurisdiction; or

(b) during the life of aformer husband or wife if such husband or wife, at the time of subsequent marriage, shall have beencontinually absent from such person (i.e., the accused spouse) for the space of seven years and shallnot have been heard of by such person (i.e., the accused spouse) as being alive within that time andthe person contracting such subsequent marriage (i.e., the accused spouse) has, before the secondmarriage has taken place, informed the person, with whom such marriage is contracted, the real facts so far as the same are within his or her knowledge. In the latter case, all that is necessary to prove isthis that the spouse had been continuously absent for seven years and had not been heard of as aliveby the accused, and the facts above mentioned had not been concealed from the second husband orthe second wife.However, it is immaterial whether the accused made any inquiries or hadreasonable ground for believing the spouse to be dead.

Second Marriage Solemnised before Coming into Force of the Hindu Marriage Act • No Bigamy

The Hindu Marriage Act 1955 came into operation on 18 May 1955. It is only after that by virtue of s17 of the Act that a second marriage by a Hindu during subsistence of the first marriage would attractthe provisions of ss 494 and 495, IPC . Therefore, bigamy was not an offence prior to coming intoforce of the said Act, so the second marriage solemnised before coming into force of the said Actdoes not attract the provisions of s 494, IPC .

Want of Mens Rea • Whether a Good Defence to a Charge of Bigamy

This section makes no reference to intention, knowledge, fraud or deceit; it constitutes the mere contracting of the second marriage a crime. However, it does not mean that the normal presumption,that a penal statute requires mens rea even though it contains no express words to that effect, shouldnot be given effect to.

Mens rea, i.e., guilty knowledge, is a necessary ingredient of the offence under s 494, IPC .An honest belief on reasonable grounds as to invalidity of previous marriage, just as an honest beliefon reasonable grounds that the spouse is dead, is a good defence.Such bona fide belief is not,however, sufficient unless proper and reasonable enquiry had, in fact, been made, and if, by reasonof a mistake of facts, it was thought that the previous marriage had been declared void by a court ofcompetent jurisdiction the accused cannot be said to have committed an offence of bigamy.Similarly, if a person, charged with bigamy, believes that he was legally free to marry again, it cannot be said that the crime was committed either intentionally or recklessly and the question whether the belief was unreasonable is irrelevant.The plea of the accused, that he entered into the second marriage in all good faith and after the honest impression that his earlier marriage with thecomplainant had been put an end to by the order of dissolution, passed by a court of competentjurisdiction, was accepted as a valid defence in Janki Amma v Padmanabban .

In Kachu Muhammad Kunja Ismail v Mohammad Kadeja Umma ,the accused took learned opinion that she could effectively divorce the complainant and went through with the formalities thereof. She then gavenotice to the complainant, waited for some time and then married the co-accused. It was held thatthere could be no criminal knowledge that her first marriage with the complainant was subsisting whenshe entered into the second marriage and so the accused were not guilty. It has been held, inSurinder Kaur v Mohinder Singh , that the bona fide belief of the accused, that he was not married previously, would constitute a valid defence.

Abetment

When the record does not disclose any material relating to abatement on the part of the accusedpersons in the alleged second marriage, the complaint as against them is liable to be dismissed on merits. When the prosecution witnesses whispered nothing in their testimony about the part playedby the accused nos 3 to 8 in the performance of marriage between accused nos 1 and 2, exceptstating that they blessed the couple, viz., accused nos 1 and 2, the blessings will not tantamount to the abetment of the commission of the offence of bigamy under s 494 read with s 109, IPC . Just because the mother of the accused was present at the time of marriage could not be said that shewas there only to commit abetment of the offence to be committed or committed by the accused. The accused persons, in the absence of any material to show that there was an instigation or that there was any intention either in aiding or in commissioning of the offence, cannot be said to have abetted the offence on mere association with the accused persons.Merely allowing one's premises to beused for the purpose of marriage, does not prove abetment of a bigamous marriage.Evidence of PW3 showed that the accused A1 re-married with accused A5 in the presence of the other co-accused, after his marriage with the complainant was dissolved, but the other co-accused(A3 and A4) had no knowledge that the decree of divorce had already been set aside by the Court.

The other co-accused (A3 and A4) could not be held guilty of abetment of bigamy. They were heldentitled to benefit of doubt. Their conviction under s 494 read with s 109, IPC was set aside.Prior knowledge of the existence of first marriage is necessary. In the absence of knowledge of firstmarriage, a person cannot be convicted for the offence of abetment of offence under s 494 read with s109, IPC.

If the complainant has specifically stated that the accused alongwith others abetted the act of mainaccused to commit the offence of bigamy punishable under s 494, IPC, there was sufficient ground forthe magistrate to issue process against the accused under ss 494 / 109, IPC

Procedure

The offence under this section is non-cognizable, bailable, compoundable, with the permission of thecourt before which the prosecution for such offence is pending, by the husband or wife of the accusedspouse, and triable by a magistrate of the first class. The complaint should be made by the aggrievedperson to the magistrate, who shall follow the procedure laid down in s 200, CrPC onwards and itdoes not include a police report, i.e., report under s 173(2), CrPC . No doubt, in the explanationto s 2(d), CrPC, a report by police officer, which discloses a non-cognizable offence, shall be deemedto be a complaint, but this explanation is not applicable in cases under ch XXII of the IPC .28As made clear by s 198, CrPC, for all or any of the offences under ss 493, 494, 495, 496, 497 and498, IPC, an aggrieved person can be either the husband or the wife and none else other than thosefalling under the proviso to s 198(2), CrPC .

Complaint filed by a third person would not be maintainable. Section 494 of IPC provides the sentence, which may extend to seven years. Therefore, themagistrate is required to follow the procedure which has been indicated for the trials connected withwarrant case procedure.

Compounding of Offence

The accused was convicted and sentenced under s 494, IPC . In the appeal before the SupremeCourt, the parties compromised, and the Supreme Court permitted compounding of the offence anddirected the accused to pay Rs 40,000 to the complainant-wife as compensation besides awardingcost of Rs 5000.

Law

The decision in Sarla Mudgal v Union of India holding that the second marriage of a Hindu husbandafter conversion to Islam without having his first marriage dissolved under law, would be invalid, thesecond marriage would be void in terms of the provision of s 494, IPC and the apostate-husbandwould be guilty of the offence under s 494, IPC, does not lay down any new law. It cannot be said thatthe second marriage by a convert male Muslim has been made offence only by judicial pronouncement. The court has only interpreted the existing law which was in force. It is settled principle that the interpretation of a provision of law relates back to the date of the law itself andcannot be prospective from the date of the judgment because concededly the court does not legislate,but only give an interpretation to an existing law. It cannot therefore be said that the decision in SarlaMudgal v Union of India has to be given prospective operation and that the decision cannot beapplied to persons who have solemnised marriage in violation of the mandate of law prior to the dateof judgment.

Complaint • By Whom to be Filed

Under s 198, CrPC, no court shall take cognizance of any offence falling under ss 493 to 498, IPC,(both inclusive) except upon a complaint made by some person aggrieved by such offence. The section specifies certain circumstances under which the person, other than the aggrievedhusband or the aggrieved wife, can file a complaint for prosecuting the accused spouse under ss 493 to 498 aforesaid. Non-compliance of the provisions of s 198 of CrPC, is fatal to the proceedings unders 494, IPC . If a person, other than the aggrieved person, initiates proceedings under s 494, IPC, hemust comply with the provision of the proviso to s 198(1), CrPC . Merely because the court tookcognizance of the offence under s 494, IPC, alleged against the accused persons, it cannot bepresumed or implied that the court granted the required leave. In the absence of anything on record toshow that the leave was asked for by the complainant and granted by the court which took cognizanceof the said offence and in view of the mandatory provision of s 198, CrPC, and the absence ofanything to show that the complainant was really an aggrieved person in the case, the court cannottake cognizance of the offence under s 494, IPC, and abetment thereof alleged against the accusedperson. Accordingly, the court has no locus standi but to dismiss such a complaint.

Section 494,IPC, does not say that the complaint for commission of offence under the said sectioncan be filed only by wife living and not by the woman with whom subsequent marriage takes placeduring the lifetime of the wife living and which marriage is void by reason of its taking place during thelifetime of such wife. The complaint can also be filed by the person with whom second marriage takesplace which is void by reason of its taking place during the lifetime of the first wife. The woman withwhom second marriage is performed can file complaint for offence under s 494, IPC .A second wifecan also file a complaint.

In prosecution for bigamy, complaint by aggrieved person is necessary, charge cannot be framed onthe basis of police report. Police report cannot be treated as complaint. Cognizance of offence onpolice report and conviction under s 494, IPC was found unsustainable, and was set aside.Section 495 deals with the offence of bigamy where it is found that subsequent marriage is contractedby concealing former marriage. In such a case, the second wife is the aggrieved person and can file acomplaint. Proof In order to secure a conviction under this section, it must be proved that: (a) the accused was already married to some person; (b) the person, to whom he or she was married, was living on the date of subsequentmarriage; (c) the accused married second person; and (d) the subsequent marriage was void by reason of its taking place during the lifetime of thefirst spouse.

Where the evidence of the witnesses examined to prove the second marriage showed that essentialceremonies had not been performed, the accused could not be convicted on the charge of bigamy.

Admission of second marriage made by the accused is no evidence for the purpose of proving marriage in an adultery or bigamy case.


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Created on 2020/11/13 06:26 by Japhin Raj • Last modified on 2020/11/27 08:13 by LawPage