The Law of Bigamy in India- Section 494 IPC

I. INTRODUCTION

S. 494 of IPC punishes the offence of bigamy in India. The object of this section is to punish persons who take a second spouse during the existence of the first. This section applies to all Hindus (by virtue of S. 17 of Hindu Marriage Act, 1955), Christians and Parsis whether male or female. But in case of a Muslim, this section applies only to females but not to males as the latter is permitted to have four wives at a time.

II. INGREDIENTS OF S. 494 IPC

This section has the following ingredients :

1. The accused must have contracted the first marriage;
2. He must have married again;
3. The first marriage must be subsisting;
4. The spouse must be living; and
5. Both the marriages must be valid in the sense that necessary ceremonies must have been observed.

III. EXPLANATION OF ESSENTIALS OF BIGAMY IN INDIA

1. The accused was married to some person :- It is necessary for the application of this section that the accused was already married when he or she contracted the second marriage. But if the first marriage was invalid or has ceased to exist, then in such a case contracting another marriage would not amount to an offence. Mens rea i.e. guilty knowledge is necessary element of this section.
2. Marriage with such a person was valid – It is  essential that the first marriage was valid. If first marriage is void then both partners are free to enter into a second valid marriage. The validity of the first marriage is to be determined on the basis of the personal law to which they belong.
3. The spouse must be living – It must be established that at the time of second marriage the previous valid marriage was still subsisting, that is both the partners to the marriage must be alive. Under Muslim, Christian & as well as Hindu personal laws on the death of one spouse, the living spouse can contract a second marriage and he or she will not be liable for bigamy. Under Muslim law, if a married woman cannot contract
4. The accused married another person :- The word marries in this section means marries by some form of marriage known to and recognized by law. But if the second marriage is not valid or it is not solemnized in the form recognized by the law then it would simply be an adulterous union. The words ‘husband &wife’ are also important in the sense that they indicate the personal law applicable to them which would continue to be applicable to them so long as the marriage subsists and they remain husband and wife.

IV. EXCEPTION

In the law of bigamy in India, if the following facts are established by the accused, then he or she shall be protected from the offence of bigamy. The following points, among others, include two exceptions as provided in S. 494 of IPC.

1. That his first marriage was null and void by the court of competent jurisdiction.
2. That the first husband or wife is dead.
3. That the first marriage has been dissolved by divorce.
4. That the first spouse has been absent or not heard of continually for a period of seven years. But it is necessary that the party contracting the second marriage has informed the other party at such marriage about the fact of his first marriage. In English Law, there is a third element that there should also be a bona fide belief in the spouse’s death. This has not been adopted in exception u/s 494.
5. Absence of other spouse for a period of seven years should be established. In this context, it is pertinent to mention S. 108 of IEA, 1872 which provides that when it is proved that a man has not been heard of for more than seven years then there is a presumption that he is dead.
6. If it is established that the accused and his first wife are living separately for seven years preceding the second marriage, then it will be the duty of the prosecution to establish that during that period he was aware of her existence and in the absence of such proof the accused is entitled to be acquitted.

V. ABETMENT

For it to constitute an abetment under this section, it must be established that the person accused of abetment knew that the person he married was the lawful wife or husband, as the case maybe, of another person. The priest who officiates at the bigamous marriage having knowledge of it is an abettor under this section and section 109. In this respect, consider the following case laws of bigamy in India:

HELD: It was held that mere consent of persons to attend an illegal marriage would not necessarily make the persons present liable for abetment of such marriage since abetment connotes an active suggestion or support to the commission of the crime.

Held : In this case the court held that it is not necessary that in every case of bigamy, unless the second marriage can be proved by evidence of the performance of the ceremonies, a conviction is virtually impossible. It held that accused can be convicted even if there is other reliable evidence to establish the charge.

VI. IMPORTANT CONCEPTS VIS-A-VIS BIGAMY IN INDIA

1. Burden of Proof – The cardinal principle that a person is presumed to be innocent until proven guilty applies equally to the cases of bigamy and therefore, the burden of proof of the second marriage is on the prosecution.
2. Admission – In Kanwal Ram v. The HP Administration, the Supreme Court held that mere admission of the accused regarding the second marriage is not enough as it is no evidence of the second marriage. It must be proved by cogent evidence.
3. Standard of proof – It is also incumbent upon the prosecution to prove the validity of the first marriage.
4. Sentence – Bigamy is a serious offence and no leniency should be shown. It is a non cognizable offence. It is bailable and compoundable with the permission of court if the offence is committed under section 494 of the IPC. It is triable by Magistrate of First Class. Punishment is imprisonment, which may extend till 7 years and shall also be liable to fine.  

S. 495 of IPC provides that in case the person charged of bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be punished with imprisonment of up to 10 years and shall also be liable to fine. The offence of bigamy in India is not compoundable.