Chapter XX of the Indian Penal Code, 1860, deals with offences related to marriage. Section 494 of this chapter addresses the offence of a spouse marrying again during the existence of the first marriage. This offence is called an offence of bigamy under IPC. The scope of this section is wide enough to include both male and female within its ambit.
Section 494 of IPC states:
- whoever has a husband or wife living,
- marries again, and the second marriage is void because it is taking place during the life of such husband or wife,
- such person shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to a fine.
However, in the case of hidden former marriages, the perpetrator may be punished with imprisonment of either description for a term of up to ten years and fined. (Section 495 of IPC)
This law note deals with the offence of bigamy, its essentials, and the current judgements of the Supreme Court of India.
Essential Ingredients for the Offence of Bigamy
These are the three essentials for the offence of bigamy:
Let us read about them in detail below.
1. Existence of a Previous Marriage
The first marriage must still exist at the time of the second marriage, and it must be valid. The second marriage does not constitute bigamy if the first marriage is not valid. At the time of the second marriage, the first spouse should still be alive.
However, section 494 of IPC does not attract when:
- Marrying after the first marriage has been declared void by a court of law; or
- The former has been continuously absent for seven years, and there has been no communication with the other party; or
- A divorce has taken place between husband and wife according to the provision of law.
2. Second Marriage to Be a Valid One
The first marriage, as well as the second marriage, must be valid to qualify for the provision of section 494. The parties to the marriage must have performed all the necessary ceremonies required by their laws.
In Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr (1965), the Supreme Court held that to constitute the offence of bigamy, not only the first marriage but also the second marriage should be a valid one. Further, the court said that marriage must be celebrated with proper ceremonies and in due form.
3. Second Marriage to Be Void Because of First Husband or Wife Is Still Living
To constitute bigamy, the second marriage must be declared void since it occurs during the lifetime of the first wife or husband. It does not apply to cases where the parties’ customs or personal laws permit a second marriage.
- Section 17 of the Hindu Marriage Act makes a second marriage void. Thus because of section 17 of the Hindu Marriage Act, section 494 of IPC is made applicable to Hindus.
- In Muslim personal law, the second marriage of a Muslim male is not void; thus, section 494 of IPC does not apply to Muslim marriages.
Bigamy: Effect of Conversion to Other Religions – What Happens When a Hindu Converts to Islam for Second Marriage
Conversion means converting oneself from one religion to another. After the enactment of the Hindu Marriage Act, it was shown that many Hindu husbands converted to Muslim and married again as per Muslim personal law to exonerate themselves from the criminal liability of bigamy as the offence of bigamy does not apply to a Muslim marriage. The matter came before the Supreme Court for the first time in the case of Sarla Mudgal vs Union of India (1995).
Sarla Mudgal vs Union of India (1995)
The questions before the Supreme Court were:
- Can Hindus who have married under the law of Hinduism be married again under the law of Islam?
- What will be the authenticity of such marriage?
- Does the converted husband commit the offence under section 494 of the IPC?
The Supreme Court answered:
- A marriage celebrated under Hindu law cannot automatically be dissolved by converting to another religion. Where a marriage takes place under Hindu law, the parties acquire certain rights by the marriage itself. Such as the wife’s right to be maintained by the husband, having an equal share in the husband’s property, etc. These rights will not be dissolved just because the husband converted to another religion. If he wants to end his liability, he has to divorce his wife as per Hindu law.
- On the question of the validity of such marriage, the court said, in the case of a Hindu husband who marries a second time after converting to Islam, the marriage is void because it occurs during the lifetime of his first wife.
- In this situation, parties who have been married under the Hindu Marriage Act continue to be married according to Hindu law even if their husband embraces Islam to seek another wife.
- As for the applicability of section 494 IPC, the court ruled that the second marriage is void since it takes place during the lifetime of the first wife, making the accused liable for bigamy.
Lily Thomas vs Union of India (2000)
The petitioner challenged the decision of Sarla Mudgal. According to him, the decision violated the right to life and liberty, as well as rights to freedom of religion protected by Articles 20, 21, 25 and 26 of the Constitution.
The Supreme Court affirmed its decision on Sarla Mudgal and held that the second marriage solemnised by a Hindu during the subsistence of the first marriage is an offence punishable under penal law.
The Constitution guarantees that every individual has not only the right to believe in the religion of his choice but also the right to express his beliefs and ideas in a manner that does not infringe on someone else’s religious freedom and personal rights. According to the court, when a Hindu husband contracted a second marriage after converting, he was not doing so out of conscience but to achieve his ulterior motives. According to Article 25 of the Constitution, these rights are guaranteed without encroaching on similar rights of others.
The court further said it is not possible for the husband or wife to end the marital bonds already established as a result of a valid Hindu marriage by converting to another religion. Therefore, during the lifetime of the first marriage, another marriage cannot be performed, even under any other personal law. And if such a marriage were to take place, the person would be subject to prosecution under section 494 of IPC.
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