Bigamy refers to a man having two wives at the same time. It is prevented for Hindus- including Sikhs and Jains. Only Muslim laws are an exception to prohibition of bigamy. This has created problem in the non-Muslims who for either justified/unjustified reason want to remarry as their law requires them to legally dissolve their existing marriage first. While also facing the cumbersome process of getting a divorce in courts. A marriage under Hindu marriage act is considered valid only if neither party has a spouse living at the time of marriage[1]. Pashaura Singh v state of Punjab “laid down the conditions to prove bigamy
· The Accused must already be married once before
· The accused must have been married again
· The first marriage must still be persisting
· The first spouse must be living[2]”.
Section 494 and 495 of IPC lays down the punishment for bigamy. Section 494 states that marrying again within the lifetime of the first wife is void and shall be punished with a term extending up to seven years, and shall also be liable to pay a fine[3]. Section 495 provides the punishment of up to ten years if the same offence is committed by concealment of former marriage from the person with whom the second marriage is committed[4]. There is also no limitation as to the time limit of filing a complaint, it can be filed anytime irrespective of how long ago the second marriage had solemnised as decided in M. Saravana Porselvi v. A.R. Chandrashekar[5].
Hindu men have found many loopholes to escape the punishment of bigamy. It has become a trend to use ‘legal instruments’ to escape provisions laid down by the IPC. “Among these are holding incomplete and defective marriage ceremonies, non-marital cohabitation and fake change of religion[6]”.
Incomplete and defective marriage
Section 7 (2) that a marriage to be solemnised should be in accordance to customs like Saptapadi and shall be complete on the seventh step[7]. However, the strict interpretation of this act by the judges in the cases of bigamy can be a little problematic. That’s because it can be difficult to produce the evidence of Saptapadi or other mandatory rites as most second marriages are done secretly with hardly any witnesses. The courts tend to acquit people on the ground that the mandatory ceremonies for the second marriage have not been proved beyond reasonable doubt. “Suitable legislation has to be made with regard to the mode of proof of the second marriage[8].”
Another way through which they can escape it is by presenting facts in a way that gets them acquitted. Most men who have married their first wife who’s at that time wasn’t legally of the age to get married (below 18) can escape their liability by declaring their first marriage void on this basis. Another controversy that has been going around is the union cabinets decision to raise the age of marriage of women to 21 and make it equal to males minimum age for marriage. Surprisingly, this decision hasn’t been taken in a very positive light. Another concern that can be added to this decision is that this would increase the ambit of escaping the liability of bigamy. It would be difficult to spread thus information among poor and men could take advantage of this newly applicable law to marry a woman (underage) and exist in a void marriage in order to escape whenever they feel like.
Religious conversion
This is the most common method to marry for the second time. Many Hindu men convert their religion to Islam (where bigamy is permissible) only to marry another woman. However, under this method the second marriage is considered to be void. This decision comes from the landmark judgement of Sarla Mudgal v Union of India. The court held that first marriage needs to be dissolved before marrying again. If this happens then the first marriage will be considered valid before conversion and not the second marriage. This judgement outlawed this practise by its decision and the ruling was reaffirmed five years later in Lily Thomas v Union of India (2000) 6 SCC 224. It is also given that even though these cases are specifically related to Hindu marriage act, the ratio decidendi would still apply to all marriages whose personal laws do not permit bigamy. However, despite this bigamy is still prevalent within non-Muslim groups and Hindu men still are able to get away with it.
Suggested solutions for the long term
A change in legislation is needed in the interpretations of personal law provisions. An additional provision should also be made to include ‘intention to marry again’ as a sufficient clause in section 17 HMA to address the issue regarding proof of second marriage[9].
It is necessary to include intention as its mentioned above that most second marriages happen clandestinely (because of the social ridicule). Usually when second marriage is not considered valid by the courts, the second wife isn’t entitled to any support. However, there are cases like Kulwant Kaur v. Prem Nath where the second wife was granted interim relief where the courts determined the legality of marriage. The woman in most cases anyway suffer as finally, whether the marriage is invalidated or not is upon the discretion of the judge to grant relief to the second wife of the accused. A liberal interpretation should be done by the courts.
Law commission has also recommended certain changes. “In the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860[10].” Apart from this IPC sections 494-495 should be made cognizable through necessary amendments in Code of Criminal Procedure 1973[11].
[1] Hindu marriage act, 1955. Section 5 (i).
[2] Pashaura Singh v state of Punjab AIR 2010 SC 922.
[4] Indian penal code, 1860. Section 495.
[5] M. Saravana Porselvi v. A.R. Chandrashekar, (2008) 11 SCC 520.
[6] Preventing Bigamy via Conversion to Islam – A Proposal For Giving Statutory Effect To Supreme Court Rulings, Law Commission Report No. 227, August 2009. Pp 15.
[7] Preventing Bigamy via Conversion to Islam – A Proposal For Giving Statutory Effect To Supreme Court Rulings, Law Commission Report No. 227, August 2009. Pp 24.
[8] Ibid
[9] Aagam Jain, Bigamous Hindu marriages: A critical analysis, IRALR (Indian review of advanced legal research) (Sep. 8, 2020). https://www.iralr.in/post/bigamous-hindu-marriages-a-critical-analysis
[10] Preventing Bigamy via Conversion to Islam – A Proposal for Giving Statutory Effect To Supreme Court Rulings, Law Commission Report No. 227 (Aug. 2009). Pp 7.
[11] Ibid.
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