Until the British people came to India, polygamy (having more wives) was common in India in Hindus and Mohemmadans. However, provisions of IPC do not apply to the Muslim males, who’s personal law (Shariat) permits them polygamy (to marry four wives at a time). The provisions the Indian Penal Code apply to the Hindus, Parsis, Sikhs, Buddhists, Jains, Parsis, Christians, Muslim females.
This Section defines and prescribes punishment for “Bigamy”.
Sec. 494. Marrying again during lifetime of husband or wife. 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.
This Section does not extend to any person whose marriage with such husband or wife has 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 a person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is being contracted of the real state of facts so far as the same are within his or her knowledge.
Sec. 495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted:
Whoever commits the offence defined in the last preceding Section having concealed, from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Sections 494 and 495 prevent the bigamy. These Sections apply to all the persons, except to the Muslim males. The First Law Commission intended to bring social and economical reforms in India, and suggested these provisions in the Indian Penal Code. These provisions bring equality between the husband and wife. The century’s age-old evil custom of having more wives at a time was smashed by Sections 494 and 495.
B. Ingredients of Sections 494 and 495:
(a) Existence of the first husband or wife when the second marriage is celebrated attracts the provisions of these Sections.
(b) When the former husband or wife has been continuously absent for 7 years and not heard of as being alive within .that time, provided the real state of facts shall be disclosed to the person with whom the second marriage is contracted.
(c) These Sections apply to all Hindus, Buddhists, Jains, Sikhs, Christians they also apply to Muslim women. But they do not apply to Muslim males.
(d) If the first marriage is not a valid one, no offence will be committed by contracting a second marriage. If A, who has married B within prohibited degrees of affinity, again marries C, he will not be guilty of bigamy, for his first marriage with B was not a valid marriage.
(e) The prosecution must prove the evidence of second marriage. The essential ceremonies of marriage must be proved.
A, the wife of B, not having heard of her husband Before 10 years, contracts a second marriage with C, telling C that she is unmarried. B returns some time later, and wishes to prosecute A for Bigamy. Advise B. (Sept. 1988 O.U.)
A committed the offence of Bigamy. Of course, the exception appended to the Section 494 says that if the former husband or wife has been continuously absent for seven years and not heard of as being alive within that time, A can contract another marriage.
But the same exception also says that the real state of facts shall be disclosed to the person with whom the second marriage is contracted. Here A did not disclose the real facts to C. Moreover she told C that she was unmarried. Hence she is liable for the punishment for the offence of Bigamy.
A, the wife of B, not having heard of her husband B for 7 years, contracts a second marriage with C, telling the real facts. A’s second marriage was performed with C. After their marriage, B returns, and wishes to prosecute A. Advise B.
A married to B, marries again C, 8 years after B absconds, after informing C about the absence of B. Has A committed Bigamy?
The facts in the above problems resemble with the case law of R. vs. Tolson (1889) 23 QBD 168.
F. The Special Marriage Act, 1954:
If a Muslim husband marries more than two wives at a time, it is not an offence under the Shariat (Muslim Personal Law), and the provisions of Section 494 of the IPC shall not apply to him. However, if a Muslim man marries a woman under the Special Marriage Act, 1954, the provisions of Section 494 of the Indian Penal Code shall apply.
Anwar Ahmed vs. State of U.P. (1991 CrLJ 717)
Anwar Ahmed registered his marriage under the Special Marriage Act, 1954. Later disputes arose in between wife and husband. He married another woman. The first wife complained. The accused contended that under the Shariat he was entitled to marry four marriages.
The trial Court did not accept his argument and imposed imprisonment and fine. He appealed to the Allahabad High Court. The High-Court also confirmed the judgment of trial Court.
While disposing the case, Jafri J. observed: “Notwithstanding the fact that the personal law permits a Muslim male to contract four marriages, if a second marriage is contracted under the Special Marriage Act, 1954 vis-a-vis the fact that he has a legally wedded wife who has been married to him under the Mohammedan law, Sec. 494 has to claw at the erring male.
Mohammedan law does not take preference over the Special Marriage Act, 1954…. There being no saving clause for the applicant to purge him of the charge u/s 494, the applicant is liable to be punished under Section 494.”
G. Bhaurao vs. State of Maharashtra (AIR 1965 SC 1564)
Bhaurao Shankar Lokhandev @ Bhaurao married one Kamala Bai in 1962. Due to the disputes the wife began to reside in her father’s house. She came to know that her husband married another woman in a temple. She filed a petition to the police. The police enquired the matter, and filed a case under Section 17 of the Hindu Marriage Act, 1955 and Section 494 of IPC.
The accused Bhaurao argued that he did not marry any woman. He also challenged the prosecution to prove the required the ceremonies of second marriage under Section 7 of the Hindu Marriage Act.
The prosecution failed to prove the alleged second marriage as there was no proof that the essential sastraic ceremonies of invocation before the sacred fire and Saptapadi were performed. The trial Court convicted the accused/appellant.
The Supreme Court gave the judgment in favour of the accused/appellant, and quashed the conviction. The Supreme Court observed: “The marriage to which Section 494 of IPC, applies on account of the provisions of the Section 11 of the Act of 1955, should have been celebrated with proper ceremonies and in due form. Merely going through the certain ceremonies with the intention that the parties be taken to be married will not take the ceremonies prescribed by law or approved by any established custom.”
Principles lay down:
1. The term ‘solemnise’ in relation to a marriage means celebration with special attendant ceremonies and in due form. Unless a marriage is so celebrated it cannot be said to be solemnised.
2. The performance of the homa, an oblation in the sacred fire, the panigrahana or taking hold of the bride’s hand by the bridegroom and circumambulating the sacred fire to the chant of vedic mantras, the treading on the stone and the Saptapadi, the seven steps by the couple jointly before the sacred fire are the principal rites for a Hindu marriage according to the Asavalayana Grihyasutra.
Under Section 3(1) of the Hindu Marriage Act, a Hindu marriage maybe completed by ceremonies other than the above when sanctioned by custom. Merely going through ceremonies with the intention that the parties be taken to have been married will not make them ceremonies prescribed by law or approved by custom.
3. It is an essential requirement of the offence of bigamy under Section 17 of the Hindu Marriage Act, 1955 that the fact second marriage is solemnised must be proved.
H. Pendenti Venkata Ramamma vs. State of A.P. (1977) AP 43)
A-bridegroom was aged 13 years, and B-bride was aged 9 years of age at the time of their marriage. Their marriage was solemnised in 1959 due to the elders’ interests and instigations. In 1975, the husband-A married another woman treating his previous marriage with B as void, which was solemnized in his childhood. B-the first wife filed criminal petition against A under Section 494 of IPC.
The husband-A contended that his first marriage was void according to the provisions of the Restraint of Child Marriages Act, 1929 and against the provisions of Section 5 of the Hindu Marriage Act, 1955.
An important question of law arose that if the marriage of 1959 was treated as “void”, the husband-A would not be punished. If the marriage of 1959 was treated as “not void”, the husband should have been punished under the bigamy.
The husband cited the case, Saramma vs. Ganapatulu (AIR 1975 AP 193) Case, in which the Andhra Pradesh High Court decided that a child marriage is void, and is in contravention of CI. (iii) Of Section 5 of the Hindu Marriage Act, 1955.
The Andhra Pradesh High Court overruled the decision of Saramma’s case in the case of Venkata Rammamma. The High Court opined that according to the Doctrine of Factum Valet (A fact cannot be changed by hundred texts.) the first marriage was void.
Principle laid down:
The A. P. High Court has given honour to the customs. A child marriage is not void, but only voidable. However, the bride or bridegroom has an option to cancel the marriage after obtaining their majority.
It is equal to the Muslim marriages. A bride or bridegroom in that religion can revoke their child marriage, after attaining his/her puberty, if he/she does not like it.
If she/he does not revoke, the marriage continues. Section 12 of the Child Marriage Restraint Act, 1929 also explains the same thing, i.e., the Civil Courts can issue injunction against the performance of the child marriage, after giving due opportunity to the concerned parties. The Supreme Court asserted the same principle in “Rabindra Prasad vs. Sita Devi (AIR 1986 Pat. 128)” case that a child marriage is not void.
I. Gnanasoursdari vs. Nallathambi (1946 Mad. 367)
The first accused was a Roman Catholic Indian Christian. He married the complainant, who was a Protestant in a Protestant Church under the provisions of the Indian Christian Marriage Act (XV of 1872). Later some years after, he obtained “Release Deed” from the complainant-his first wife, and married the second accused, who was Roman Catholic Christian in a Roman Catholic Church.
The First wife-complainant filed a complaint under Section 494. The accused contended that he obtained release deed from the first wife. The Court held that mere obtaining a release deed from the first wife is not sufficient, and in that occasion, he should have obtained divorce from the competent Court.
The accused did not obtain the divorce from the District Court as per the provisions of the Christian Marriage Act, and Indian Divorce Act, 1869 hence the accused were held liable to be punished under Section 494.
A Christian woman who had married a Christian according to Christian rites during the life time of her husband becomes a Muslim and marries a Muslim according to the Muslim rites. Has she committed any offence?
Yes. She is guilty of Bigamy. The Supreme Court clarified this legal position in several cases very clearly that when a Hindu or Christian converts his or her religion into Islam and marries a Muslim woman or man for the second time, he/she is liable to be punished under Section 494, and if he/she suppresses the real facts of his first marriage, he is also liable to be punished under Section 495.
Thus the Supreme Court imposed restrictive conditions upon the non-Muslims, who want to convert themselves into Islam with a view to have bigamy and to save from the provisions of the Sections 494 and 495.
A Hindu marries another wife with the written consent of his first wife during her life time. Is he criminally liable for the offence of bigamy?
Permission or release deed obtained from the first wife does not save the husband who marries second marriage. Similarly, if the husband gives the permission or release deed to his wife, that wife is not entitled to have second marriage. The only solution is that first they should take divorce, and later each of them can enter into the second marriage choosing the persons as per their choice. This applies to all the religions, except to Muslim males.
Santosh Kumari vs. Surjit Singh (1990 CrLJ 1012 HP)
In this case, the first wife gave the permission to her husband for his second marriage. Both the wife and husband applied for the permission before the District Court, which was accorded by that Court.
The proposed second bride came to know it and filed an appeal before the High Court. The Himachal Pradesh held that no Court is authorised to permit a second marriage without proper legal divorce even if the first wife consented and made the application. It is against the law.
Sections 494 and 495 are non-cognizable, non-bailable, compoundable with permission of the Court before which any prosecution of such offence is pending, triable by the Metropolitan Magistrate o. the Magistrate of the first class.
In Andhra Pradesh, offences under Sections 494 and 495 are cognizable, non-bailable, compoundable, and triable by the Magistrate of the first class and non-compoundable vide A.P. Act No. 3 of 1992, with effect from 15-2-1992.
M. The Special Marriage Act, 1954:
Irrespective of caste and religion, if the marriage is registered under the Special Marriage Act, the provisions of Sections 494 & 495 apply to such marriage. If a Muslim male marries a Hindu girl and registers their marriage under the Special Marriage Act, 1954, he could not give Talaq as per his personal law to his Hindu wife.
(a) Sri Raghavulu’s daughter married a Muslim and registered their marriage under the Special Marriage Act, 1954 (b) Azaharuddin first married a Muslim woman and gave Talaq to her.
Later he married Sangitha Bizlani, a Hindu woman and registered their marriage. Now he cannot give Talaq to Sangitha as easily as per Muslim law. The Muslim Personal Law does not apply to .the marriages of registered under the Special Marriage Act, 1954.