Bigamy Laws in India

What is Bigamy?

In India, bigamy refers to the act of marrying someone while already being legally married to another person. It is considered a criminal offence under Section 494 of the Indian Penal Code, 1860 (IPC). According to this Section, any person who, while being married, marries another person during the lifetime of their spouse, is said to have committed the offence of bigamy. The law in India recognizes monogamy as the norm, meaning that an individual can have only one spouse at a time. Bigamy is considered a punishable offence as it violates the principles of monogamy and the sanctity of marriage. The legal consequences of committing bigamy can include imprisonment, fines, or both. It is worth noting that there are some exceptions to the offence of bigamy under certain personal laws governing different religious communities in India. For example, certain religious practices permit limited polygamy, such as the Muslim personal law, which allows Muslim men to have up to four wives, subject to certain conditions. However, even in such cases, there are specific legal requirements and conditions that must be fulfilled for polygamous marriages to be considered valid.
 

Bigamy Under Hindu Marriage Act, 1955

A bigamous marriage under the Hindu Marriage Act, 1955 (HMA) is a void marriage and the act of contracting such marriage is a punishable offence. Section 11 of the Act expressly declares that any marriage solemnized (after HMA has come into force) in violation of the condition that neither party should have a living spouse at the time of the marriage, is null and void. This means that if either party to a marriage already has, at the time of such marriage, a husband or wife from a legally subsisting marriage, the subsequent marriage is considered void in the eyes of law and can be annulled by a decree of nullity upon a petition filed by either party to such marriage. Section 17 of the Hindu Marriage Act further emphasizes the prohibition of bigamy among Hindus. It states that any marriage solemnized between two Hindus is void if either party had a husband or wife living at the time of the marriage. The provisions of Sections 494 and 495 of the IPC are made applicable to such cases. These Sections of the IPC deal with the punishment for bigamy, with imprisonment for a term that may extend up to seven years, or even up to ten years if the offence involves concealing the former marriage from the subsequent spouse. In essence, the Hindu Marriage Act, 1955, recognizes bigamy as a void marriage and subject to legal consequences. It aims to uphold the principle of monogamy and proscribes the occurrence of multiple simultaneous marriages among Hindus.
 

Bigamy Under Muslim Personal Law

Under Muslim personal law, Muslim males are permitted to practice limited polygamy. They are legally competent to have a plurality of wives and at one point in time the number of women a Muslim male can validly marry extends to four. Muslim women, on the other hand, are mandated to be compulsorily monogamous. At one time, they can have only one husband. Polygamy is thus prohibited for Muslim females and a woman contracting another marriage where she has a subsisting marriage would be guilty of committing an offence of bigamy under Section 494 IPC. Where a man already has four subsisting marriages and gets married a fifth time, the fifth marriage so contracted is termed & lsquo irregular' under Sunni law and & lsquo void' under Shia law. This irregularity under Sunni law can be removed if any marriage with the earlier four wives comes to an end either by her death or by the dissolution of the marriage. In such cases, the fifth marriage would become the fourth subsisting one and would be termed a regular or normal Nikah. In such eventuality, the fifth, now fourth wife would be treated as the legally wedded wife with maintenance and inheritance rights.
 

Bigamy under Parsi Marriage and Divorce Act, 1936

As per Section 4 of the Parsi Marriage and Divorce Act, 1936, no Parsi individual, regardless of whether they have changed their religion or domicile, can contract a marriage under the Parsi Marriage and Divorce Act or any other law during the lifetime of their existing spouse, whether the spouse is Parsi or not. A marriage contracted in violation of this will be considered void. A person can only remarry after obtaining a lawful divorce from their spouse or if their marriage has been declared null and void or dissolved by a legal process. Section 5 of the Act specifies that if a Parsi individual contracts a marriage during the lifetime of their spouse without obtaining a lawful divorce, or without the marriage with their spouse being declared null and void or dissolved by a legal process, they will be subject to the penalties outlined in Sections 494 and 495 of IPC. These Sections deal with the offence of marrying again during the lifetime of a spouse and provide corresponding punishments. These provisions are in place to prevent bigamy or the contracting of multiple marriages without the necessary legal procedures. They ensure that individuals comply with the requirements for divorce or dissolution of marriage before entering a subsequent marriage.
 

Bigamy under The Divorce Act, 1896

As per Section 18 of the Divorce Act, 1896, which is the law governing marriage among Christians, any husband or wife has the right to present a petition to the District Court, seeking a declaration that their marriage is null and void from its inception. Section 19 states that a decree of nullity may be granted if, at the time of the marriage, the former husband or wife of either party was still alive, and the marriage with that former husband or wife was subsisting i.e., valid and in force. The Section further clarifies that it does not affect the jurisdiction of the District Court to grant decrees of nullity based on the grounds of obtaining consent through force or fraud.
 

Bigamy under Special Marriage Act, 1954

The Special Marriage Act, 1954 provides for the solemnization and registration of marriages between individuals belonging to different religions, castes, or communities. Section 43 of the Act states that any person who, at the time of marrying under the Special Marriage Act, is already married, commits an offence under Section 494 or Section 495 of the IPC. Therefore, if a married person procures their own marriage to be solemnized under the Special Marriage Act, they will be considered to have committed an offence under the applicable Sections of the IPC. Similarly, Section 44 of the Act states that any person whose marriage is solemnized under the Special Marriage Act and who, during the lifetime of their wife or husband, contracts another marriage, will be said to have committed bigamy and shall be subject to the penalties provided in Section 494 or Section 495 of the IPC. In other words, if a person married under the Special Marriage Act enters into another marriage while their spouse is alive, they will face the same penalties as prescribed in the IPC for the offence of marrying again during the lifetime of a spouse. It is further stated that such subsequent marriages contracted in both these circumstances will be void from their very start. Both Sections emphasize that contracting a second marriage without obtaining a lawful divorce or without the first marriage being declared null and void or dissolved is a punishable offence under the Indian Penal Code. These provisions aim to discourage and penalize bigamy under the Special Marriage Act. Section 494 of the IPC deals with the offence of marrying again during the lifetime of a spouse, while Section 495 deals with the offence of concealing a former marriage from a person with whom subsequent marriage is contracted.
 

Bigamy under the Criminal Law in India

Section 494 of the IPC states that whoever, while having a husband or wife living, marries another person in a case where such a marriage is void due to the existence of the first marriage, shall be punished with imprisonment for a term that can extend up to seven years, along with a potential fine. However, there are exceptions to this Section:

1. If a person's marriage with their husband or wife has been declared void or has been dissolved by divorce by a Court of competent jurisdiction, Section 494 does not apply.

2. If a person contracts a subsequent marriage during the life of a former husband or wife, and the former husband or wife has been continually absent for a period of seven years without being heard of as being alive within that time, then the person contracting the subsequent marriage is exempt from punishment under Section 494. However, it is essential for the person intending to marry again to inform the new prospective spouse about the real facts of the situation before the subsequent marriage takes place.

Section 495 of the IPC deals with the offence of bigamy with the additional element of concealing the former marriage from the person with whom the subsequent marriage is contracted. It states that if a person commits the offence defined in Section 494 while concealing the fact of the former marriage from the new spouse, they can be punished with imprisonment for a term that may extend up to ten years, along with a potential fine.
 

Punishment for Bigamy in India

• Under Section 494 of the IPC, if a person, while having a husband or wife living, marries another person, knowing that the subsequent marriage is void due to the existence of the first marriage, they can be punished with imprisonment for a term that may extend up to seven years, along with fine. The offence under this Section is compoundable upon prior permission from the Court before which the prosecution is pending. This means that the accused spouse can enter into a compromise with the aggrieved spouse from the previous marriage after having sought permission to do the same from the Court.

• Under Section 495 of the IPC, if a person commits the offence defined in Section 494 while intentionally concealing the fact of the former marriage from the person with whom the subsequent marriage is contracted, they can be punished with imprisonment for a term that may extend up to ten years, along with a fine.

Both these offences are non-cognizable (police cannot arrest the accused without a warrant) and bailable in nature. Interestingly, the actual punishment imposed may vary depending on the specific circumstances of the case, as the Court has the discretion to determine the appropriate punishment within the statutory limits mentioned above.
 

Matter of Succession and Inheritance in Case of Bigamy

A bigamous marriage is a void marriage from its very start. It is non-existent in the eyes of law. Under Section 112 of the Indian Evidence Act, 1872 a child born during the subsistence of a valid marriage only is legitimate, but a child born of a void marriage is not a legitimate child. At the same time, most of the legislations, provide that a child born of a void marriage and of annulled voidable marriages would be legitimate whether such a child is born before or after the commencement of the Marriage Laws and whether or not a decree of nullity is granted in respect of that marriage and whether or not the marriage is held to be void otherwise than on a petition under the Act. Let us explore how the various personal laws have conferred legitimacy on children born out of a void marriage & ndash
 

Hindus & ndash Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 (HMA) confers legitimacy on children born out of void marriages under the concept of statutory legitimacy or limited legitimacy under Section 16 HMA. This legitimacy is called statutory because it is a creation of the statute (HMA) and limited because it puts certain restrictions upon the rights of these children.

Section 16 carves out an exception to the general rule that children begotten of a valid marriage only are legitimate. It provides in clear terms that children born of void marriages and of annulled voidable marriages are legitimate.

In effect, Section 16 confers legitimacy on the child of a void marriage, to begin with, and equates him for all purposes to a perfectly legitimate child except with respect to the right to inherit ancestral or coparcenary property. This makes statutory legitimacy different from natural or perfect legitimacy.

Section 16 HMA provides for the following -

• Despite the fact that marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate

• The child should have been born after 1955

• The fact that the marriage has been declared a nullity is irrelevant

• The statutory legitimacy would not confer any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

While legitimate children inherit not only from their parents but from all of their relations as well, Section 16 clearly says that though the children begotten of void and voidable marriages would be legitimate and would be entitled to inherit the property of both their parents, however, they would not be empowered to inherit the property of any of their parent's relatives. It restricts the relationship of the children of void or voidable marriages with the parents only and makes such children eligible to inherit their property but they are specifically prohibited to inherit the property of any of the relatives of the parents as they are not deemed to be related to them. This kind of restrictive legitimacy is therefore termed as limited or statutory legitimacy.

It must be remembered that the restriction is confined only to inheritance rights and to nothing else. Any right that a normal legitimate child has would be bestowed on a statutory legitimate child as well.
 

Muslims & ndash Muslim Personal Law

Under Muslim Personal Law Muslim males are allowed to practice limited polygamy. They are legally competent to be married to up to four wives at a point in time. All these marriages would be valid and the wives would have the status of legally wedded spouses with the rights of conjugal bliss, maintenance, inheritance etc. The children begotten from each of them would be legitimate and entitled to inherit the property of their parents. Polygamy, however, is prohibited for Muslim females and a woman contracting another marriage where she has a subsisting marriage would be guilty of committing an offence of bigamy under Section 494 IPC. Children born to her from a subsequent bigamous marriage would have no right to inherit the property of her former husband.
 

Christians & ndash The Divorce Act, 1869

Section 21 of the Divorce Act, 1869 which is the law governing marriage among Christians expressly confers legitimacy on children of the annulled marriage. It states that where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.
 

Parsis & ndash The Parsi Marriage and Divorce Act, 1936

As per Section 3 of the Parsi Marriage and Divorce Act, 1936, which is the law governing marriage among Parsis, a Parsi marriage will be valid only -

• if the contracting parties are not within the degrees of consanguinity or affinity as provided under this Act

• if the marriage is solemnized according to the Parsi form of a ceremony called "Ashirvad" which is to be performed by a priest and in the presence of two Parsi witnesses, excluding the priest

• if a Parsi male and female entering into a marriage have completed twenty-one years and eighteen years of age, respectively.

The Section further states that even if a marriage is deemed invalid under any of the conditions mentioned above, any child born out of such a marriage will be considered legitimate if the marriage would have been valid under normal circumstances.
 

Inter-faith marriages & ndash The Special Marriage Act, 1954

The Special Marriage Act, 1954 provides for the solemnization and registration of marriages between individuals belonging to different religions, castes, or communities. Section 26 of the Special Marriage Act pertains to the legitimacy of children born out of void and voidable marriages. According to this Section even if a marriage is declared null and void under Section 24 of the Act, any child born from that marriage will be considered legitimate. This applies regardless of whether the child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976. The legitimacy of the child remains intact even if a decree of nullity is granted or if the marriage is found to be void for reasons other than a petition under this Act. However, this Section does not confer upon them any rights in or to the property of any person other than their parents. If, under the previous laws in force before the passing of this Act, the child would have been incapable of possessing or acquiring any property rights as a result of not being the legitimate child of their parents, this Act does not change that. The intent of these specific provisions is to address the legal status of children born out of marriages that are either null and void or voidable and to protect the rights of such children and ensure their legitimacy regardless of the marital status of their parents.
 

Legal Remedies for Victims of Bigamy

Legal remedies for victims of bigamy can be pursued both through criminal and civil avenues.
 

Criminal Remedies

Under the Code of Criminal Procedure (CrPC), Section 198 specifically deals with the prosecution of offences against marriage which includes the offence of bigamy under Sections 494 and 495 IPC. The prosecution in these cases can only be launched upon a complaint by the aggrieved spouse to their local area magistrate in compliance with Section 198 CrPC. According to this Section, no Court can take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (IPC), which includes offences like bigamy (Section 494) and concealing a former marriage (Section 495), except upon a complaint made by a person aggrieved by the offence. However, if the person aggrieved is the wife, the complaint can be made on her behalf by her father, mother, brother, sister, son, daughter, father's or mother's brother or sister. With the Court's permission, any other person related to her by blood, marriage, or adoption may also file the complaint. In the case of A. Subhash Babu v. State of A.P., AIR 2011 SC 3031, the Hon'ble Supreme Court held that even the second wife is competent to prosecute the bigamous husband. The wife with whom the second marriage is contracted after concealment of the former marriage would also be entitled to lodge a complaint for the commission of an offence under Section 495. In such a case, the second wife would be an aggrieved person within the meaning of Section 198 CrPC and would be entitled to file a complaint against the husband leading to his prosecution under Section 494 IPC. Apart from prosecution under 495 IPC, the woman in a bigamous relationship may also claim maintenance from her husband under Section 125 CrPC. This was held in Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188, wherein the Supreme Court held that & ndash

• He defrauded her, suppressing the factum of the alleged first marriage,

• Award of maintenance is designed to prevent vagrancy and destitution and therefore does not require strict proof of marriage,

• Since the man was guilty of playing fraud on her, it would amount to giving a premium to his fraud, if he was absolved from any obligation to maintain her

• In cases where a man has lived with a woman for a long time and even though they may not have undergone the legal necessities of a valid marriage, he should be made liable to pay the woman maintenance if he deserts her.
   

Civil Remedies

In case of bigamy, the following civil remedies can be sought:

• Decree of Nullity: A victim of bigamy can file a petition seeking a decree of nullity under Section 11 of the Hindu Marriage Act, 1955 or Section 18 of the Divorce Act, 1869 or Section 24 of the Special Marriage Act, 1954, as the case may be, which declares the subsequent marriage as null and void due to the existence of a prior valid marriage. Interestingly, as per the Parsi Marriage and Divorce Act, 1936, a bigamous marriage is void per se, it need not be annulled by way of a decree of nullity.

• Maintenance: The victim can claim maintenance from the person who committed bigamy. Maintenance is financial support granted to the aggrieved party by the Court.

• Child Custody and Support: If there are children from the subsequent marriage, the victim can seek child custody and support arrangements from the person who committed bigamy.
   

Legal Status of Second Wife in India

The legal status of a second wife differs with the applicable religious personal laws upon the parties involved. Under the Hindu Marriage Act, which governs Hindu, Sikh, Jain, and Buddhist communities, polygamy is generally prohibited. Therefore, a second marriage during the subsistence of the first marriage is considered illegal and void. The second wife does not have any legal recognition or rights as a spouse. A similar sentiment is echoed in laws governing the Parsi and Christian communities in India. The Section 498A of the IPC which prescribes punishment for the offence of cruelty against a wife will not be able to rescue a second wife (of a bigamous marriage) since she is not a legally wedded wife of the person and hence not a wife in the eyes of law. In the case of Priya Bala Ghosh v. Suresh Chandra Ghosh, 1965 2 S.C.R. 837, the plaintiff filed a complaint of bigamy against her husband for marrying another person while their marriage was still valid. However, it was found that the second marriage did not adhere to the Hindu law requirements for a valid marriage. It was held that the plaintiff had to establish that the second marriage was a valid marriage conducted in accordance with the rituals and customs of their personal law. However, in certain communities or under specific personal laws, such as Muslim personal law, polygamy may be permitted under certain conditions. A Muslim man can legally have up to four wives simultaneously, subject to fulfilling specific requirements and obtaining the consent of existing wives. In such cases, the second wife may have legal recognition and certain rights as a spouse, such as maintenance and inheritance rights, as provided by Muslim personal law.
 

Legal Status of Second Marriage in India

The legal status of a second marriage in India depends on various factors, including the personal laws applicable to the individuals involved and the circumstances under which the second marriage takes place. here are some key points to consider:

• Hindu Marriage Act (HMA): Under the Hindu Marriage Act, 1955 if a Hindu individual contracts a second marriage while the first marriage is still subsisting, without obtaining a divorce or annulment, the second marriage is considered void and illegal. the first marriage is considered valid until dissolved by a Court of law.

• Special Marriage Act (SMA): The Special Marriage Act, 1954 applies to individuals of any religion or faith who wish to marry outside the scope of their personal laws. Under the SMA, if a person enters into a second marriage while the first marriage is still valid, without obtaining a divorce or annulment, the second marriage is considered void and illegal.

• Muslim Personal Law: In Islamic Law, a Muslim man is allowed to have up to four wives simultaneously, subject to certain conditions and restrictions. However, it is important to note that the right to contract multiple marriages is not absolute and is subject to certain conditions and requirements, including equal treatment of all wives. Polygamy is not permissible for Muslim women under Muslim Personal Law.

• Divorce Act: The Divorce Act, 1869 applies to Christians in India and does not allow for the contracting of a second marriage while the first marriage is still subsisting. A second marriage without the dissolution of the first marriage is considered void.

• Parsi Marriage and Divorce Act: Parsi marriage and divorce act, 1936 governs the Parsi community in respect of matrimonial matters. If a Parsi enters into a second marriage with a person while continuing to be married to another, such a subsequent marriage would be void in the eyes of law.

It is crucial to comply with the legal requirements and procedures for divorce, annulment, or dissolution of the first marriage before entering into a second marriage to ensure its legal validity. Failure to do so may render the subsequent marriage void and may also attract legal consequences, including criminal penalties under the IPC for the offence of bigamy.
 

Position of Bigamy in Live-In Relationships

Legal recognition of the spousal relationship is contingent upon the proper and lawful solemnization of a marriage, adhering to the prescribed legal requirements applicable to the parties involved. In recent times, there has been recognition from both the judiciary and the legislature regarding intimate relationships characterized by exclusivity, consistency, and longevity, leading to the emergence of alternative family structures that may not have been formed through a valid marriage but are informally acknowledged as akin to a family unit. This includes live-in relationships or cohabitation without marriage. Although not formally recognized as a family in the Indian context, the phrase “ relationship in the nature of marriage” included in the domestic violence act demonstrates an acknowledgement by the parliament of such relationships. It is important to note that there are distinctions between marriage and cohabitation without marriage, with the latter providing more freedom to enter or exit the relationship without legal complexities, but also lacking stability and matrimonial reliefs. Thus, a person who, while being legally married to one person, cohabits or lives with another in a live-in relationship cannot be said to have committed the offence of bigamy as conceptualised under the IPC. Regarding the position of bigamy in live-in relationships among Muslims, it is observed that the contractual nature of marriage ensures security and financial rights for the wife, while the status of a woman in a live-in relationship offers little security to the female partner. The issue of maintenance in cases where a woman claims marital status, which is denied by the man, was addressed in the case of Aysha v. Ozir Hassan, (2013) DMC 468 (Mad). In this case, a Muslim woman filed a lawsuit against her alleged husband, seeking maintenance for herself and their two daughters. The Court considered the evidence provided, including the presence of the husband at the time of the daughters' births and his name recorded as their father, as well as the woman's agreement to family planning with his consent. The trial Court granted maintenance to the children based on proven paternity but denied it to the wife due to a lack of documentary evidence proving the marriage. On appeal, the High Court of Madras equated voluntary consummation of sexual relations between parties eligible for marriage with a legally wedded marriage in the absence of any statutory prohibition. It held that all legal consequences that arise from a legally wedded marriage would apply in such cases. The Court granted maintenance to the wife, considering her the legally wedded wife of the husband, and deemed the children legitimate.
 

Grounds For Annulment Due to Bigamy

Annulment of a marriage due to bigamy is granted by the Court upon presentation of a petition under Section 11 of the Hindu Marriage Act, 1955. The following grounds may be considered for the annulment of a marriage due to bigamy:

• Existence of a prior marriage: One of the main grounds for an annulment due to bigamy is when one party enters a second marriage while a prior marriage is still legally valid and subsisting. If it can be proven that a party was already married at the time of the subsequent marriage, the marriage is considered void and hence subject to annulment.

• Lack of legal capacity: If one of the parties lacked the legal capacity to enter a marriage, such as being underage or mentally incapacitated, and they subsequently entered into a second marriage, it reinforces the case for an annulment due to bigamy.

• Fraud or misrepresentation: If one party intentionally conceals or misrepresents their existing marriage to the other party, inducing them to enter into a marriage, it would be considered a ground for annulment based on fraud or misrepresentation and also a punishable offence under Section 495, IPC.

• Absence of consent: If one party was forced or coerced into entering into a subsequent marriage while their prior marriage was still valid, it makes a strong case for annulment due to lack of consent coupled with bigamy.
   

It must be borne in mind that the specific grounds for annulment due to bigamy can vary with the specific facts and circumstances of the case. It is advisable to seek legal advice specific to your case.
 

Why do you need a Lawyer for a Bigamy matter in India?

Obtaining a decree of nullity or annulment of a marriage can be a challenging and emotionally trying process. It is advisable to seek the assistance of a skilled family or divorce lawyer to navigate through the legal complexities involved. Engaging the services of a divorce lawyer has several benefits in the context of seeking a decree of nullity. A divorce lawyer specializing in annulments will not only assist you in gathering all the necessary information related to your case but also handle the extensive paperwork involved. By taking care of these legal formalities, the lawyer allows you to focus on yourself and your family during this difficult time. With their extensive experience in handling cases of annulment, an experienced divorce lawyer can provide you with expert advice tailored to your unique situation. Their knowledge of the relevant laws and legal procedures ensures that you are well informed about the best course of action to take in your specific case. Utilizing services such as LawRato's Free Legal Advice can also be beneficial as it enables you to seek guidance from expert divorce/matrimonial lawyers who can provide you with valuable insights into your case. By hiring a divorce lawyer , you can minimize the risk of making significant mistakes that may have adverse financial consequences or necessitate further legal proceedings in the future. A divorce lawyer specializing in annulments can guide you through the process, ensuring that all necessary steps are taken to achieve a swift and successful resolution.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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