Meaning:
Marriage
has been defined as a pure sacrament, particularly in our Indian culture a bond
that joins two lives together till the end of their lives, unlike in other
countries where entering into a marriage is a contract.
If a
certain person in a marital bond cheats with the other person and enters into a
new bond of marriage during the lifetime of the other partner, doing this is
also known as committing the offence of Bigamy, the sole reason being it is
immoral on the part of the first partner to start a new life at the expense of
happiness and peace of the previous partner in marriage.
The second marriage while the first marriage is in subsistence is called Bigamy. Bigamy,
in simple words, means a person marries for the second time while his first
marriage is in subsistence.
The bigamy
law is applicable to Hindus, Jains, Buddhists, Sikhs, Parsis, and Christians [except
Muslims].
Position
in society:
In a case,
where the husband or the wife is alive then, the second marriage contracted by
a person is not legal and does not hold any validity in the eyes of law, i.e. it is termed to be a void marriage. The position of bigamy in India is
certainly mentioned in the law but the practice is still very common and hence
the contrast between the law and social practice results in the second wives
not having enough protection.
Women in
the second marriage are cheated on and are not provided with much protection
under Indian laws. There is no legal recognition given to second wives.
Nevertheless, the victims of bigamy can still approach the Courts for claiming
maintenance. The second wife is entitled to maintenance, she is not entitled to property rights.
Legal
provisions;
The key law
forestalling Bigamy in India is the Indian Penal Code yet in the event that
personal laws do not explicitly specify Punishment for Bigamy or illegalize
Bigamy, at that point any person can’t be indicted for the offense of bigamy. Bigamy
is prohibited in India under Section 494 of the Indian Penal Code. The law expresses
that, whoever marries another person in the lifetime of the existing spouse, such
marriage by reason of its occurring during the lifetime of such husband or
wife, should be viewed as void and should be punished for such offense. If any
person marries more than once during the life of his first spouse, he/she
should be punished with imprisonment which may extend to seven years, and shall
also be liable to a fine.
Section 494
of the IPC provides about “Bigamy” as thus “Whoever, having a husband or wife
living, marries again 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”.
Bigamy in
India is a non-cognizable offence. It is bailable and compoundable when the
permission of the Court is granted if the offence is committed under section 494 of
the IPC. The punishment for bigamy is imprisonment, of a maximum of 7 years or a fine
or in some cases, both. In case the person charged with bigamy has performed the
second marriage by concealing the fact of the first marriage, then he shall be
punished with imprisonment of up to 10 years or a fine or both. Such offence
under section 495 is not compoundable.
Hindu
Marriage Act, 1955- As per the Section 17 of the Hindu Marriage Act, 1955, if a
person considered to be a Hindu under the Act, marries another person in the
existence of his/her first marriage, i.e, while the first husband or wife is
alive, then that person shall be punished under the Indian Penal Code. Section
16 of the Hindu Marriage Act 1955 states that the children born from a bigamous
relationship shall be held perfectly valid. But there is no legal recognition for
the second wife, but she may have a chance of maintenance under the Act.
Muslim
Women (Protection of Rights on Divorce) Act, 1986- Under this Act, unlike other
religions, there are no particular or specific provisions for bigamy. A Muslim man has a right to marry twice, thrice, or four times if he is able to treat and
respect all of his wives in an equal manner. In case he fails to do so, then
he is liable.
Parsi
Marriage and Divorce Act, 1936- Section 5 of this act affirmed Bigamy null and
void or dissolved and imposes a penalty which has been laid down under Section
494 and 495 of Indian Penal Code, 1860.
Christian
Divorce Act, 1896- This act does not provide a specific law for bigamy but at
the time of registration of marriage, Section 60 lays down that none of the
parties to the marriage should have been in an existing marriage and if a
person gives a fall oath or declaration, then he/ she is punishable under
Section 193 of the Indian Penal Code. This provision explains that under this
Act, more than one marriage is considered to be illegal.
Special
Marriage Act, 1954- Section 44 of this Act lays down that if any person commits
bigamy then he/ she is liable under Section 494 and 495 of the IPC, 1860.
Foreign
Marriage Act 1969- Section 19 of this act states the punishment for Bigamy and
imposes a penalty under Sections 494 and 495 of the Indian Penal Code.
Sarla
Mudgal v. Union of India (1995 AIR 1531 SC): The Supreme Court of India in its landmark
judgment held that “where any man (not Muslim initially) converts his religion
into Islam for the sole purpose of contracting a second marriage without
legally divorcing his first wife ), the marriage shall be regarded as void and
illegal and he shall be punished in the similar manner as he would have been
punished had he not converted his religion.”
Bigamy
shall not apply if:
a) the first
husband or wife is dead, or
b) the
first marriage has been declared void by the Court of competent jurisdiction,
or
c) the
first marriage has been dissolved by divorce, or
d) the
first spouse has been absent or not heard of continually for a space of seven
years. The party marrying must inform the person with whom he or she marries of
this fact.
References:
1) Rights of the second wife in India
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