Marrying again (Bigamy) during lifetime of husband or wife

Section 494 of the Indian Penal Code, 1860 deals with the offence of Marrying again during lifetime of husband or wife. The offence under above mentioned Section is known as Bigamy under English law. However, Section 494 does not apply to Muslim males who are allowed to marry more than one wife, but the same is applicable to Muslim women.

In order to constitute an offence under Section 494, of the Indian Penal Code, 1860; it requires;

An existence of the first wife or husband when the second marriage is celebrated;

At the time of the second marriage, there must be a previous marriage valid and subsisting. However, if the first marriage is not a valid marriage, then contracting second marriage will not constitute an offence under Section 494 ((Padi, AIR 1963 HP 16)).

Similarly, a Muslim woman marrying within the period of iddat period is not guilty of bigamy ((Abdul Ghani v. Azizu Huq, (1911) 39 Cal 409)). Further, it is essential to note that, a divorce dissolves a valid marriage and the parties obtaining such dissolution can remarry ((Santosh Kumari v. Surjit Singh, AIR 1990 HP 77)).

Notwithstanding the fact that, the personal law permits a Muslim male to contract four marriages, if the second marriage is contracted under the provisions of Special Marriage Act, 1954 vis-à-vis the fact that, he has a legally wedded wife who has been married to him under the Mohammedan Law, Section 494 has to claw at the erring male… Mohammedan Law does not take preference over Special Marriage Act, 1954… there being no saving clause for the applicant to purge him of the charges under Section 494… the applicant is liable to be punished under this Section ((Radhika Sameena v. SHO Habeabnagar PS, 1997 Cr. LJ 1655 (AP).)).

The second marriage being void by reason of subsistence of the first according to the law applicable to the person violating the provisions of this Section

Prima facie, the expression “whoever marries” must mean “whoever marries validity” or “whoever… marries and whose marriage is a valid one”. If the marriage is not a valid one according to the law applicable to the parties, no question of its being by reason of its taking place during the life of the wife or husband of the person arises. If the marriage is not a valid one, it is no marriage in the eye of law ((Bhaurao, (1965) 67 Bom. LR 423 (SC).)).

Merely because, the second marriage even if performed by performing all essential ceremonies turns out to be void by virtue of Section 17 of the Hindu Marriage Act, 1955, it cannot be said that, Section 494 of Indian Penal Code, 1860 will not be attracted ((Gopal Lal v. State of Rajasthan, 1979 Cr. LJ 652 (SC).)).

If the second marriage was not provided to have been validly performed by observing essential ceremonies and customs in the community, the conviction under Section 494, of Indian Penal Code could not be maintained ((L. Obulamma, 1979 Cr. LJ 849 (SC).)). Even if the husband admits his second marriage, the prosecution is not absolved of its burden of proving that, the second wife was taken after solemnizing due ceremonies of Hindu Marriage ((P Satyanarayana v. P Mallaiah, (1996) 6 SCC 122)).

If a person who is already married goes through a form of marriage with another within prohibited degrees of relationship , he is still guilty of bigamy although the second marriage would be null and void in any case ((Robinson, (1938) 1 All ER 301)). However, it is not correct to say that, in every case of bigamy, unless the second marriage can be proved by bringing in the evidence of the performance itself, a conviction under Section 494 o Indian Penal Code, is virtually impossible. The accused can be convicted even if there is other reliable evidence to establish the charge ((Indu Bhgya Natekar v. Bhagya Pandurang Natekar, 1992 Cr. LJ 601 (Bom).)).

Though good faith and mistake of law are no defences to the charge of bigamy, it was held by the court in Raj Kumari v. Kalawti ((1992 Cr. LJ 1373 (All).)), that, the second marriage was invalid as one of the two essential ceremonies of the customary marriage was not performed. It was held that, having so concluded the court could not proceed to convict the accused under Section 494 of Indian Penal Code.

This section also laid down three exceptions to the offence viz.

  1. Continual absence of none of the parties for the space of seven years;
  2. The absent spouse not having been heard of by the other party as being alive within that time; and
  3. The party marrying must inform the person with whom he or she marries of the above fact.