Marriage, one of the oldest institutions of Humankind, had different marriage codes for example polygamy, polyandry, bigamy, and monogamy. Monogamy was not a popular way of life since the inception of Humankind, and it gained popularity in the different systems of the World and cultures in the last about 1000 years.
WHAT IS BIGAMY?
Bigamy is the act of marrying an individual while the legally wedded spouse is alive. The couples’ marital status as married is unaffected by their legal or de facto separation. A person who is divorcing his or her spouse will remain legally married until the divorce is complete or absolute under the laws of the relevant jurisdiction. In most of civilized nations, bigamy is illegal as only monogamous marriages are recognized and registered. The only exception is if Bigamy is permissible in religious and personal laws or established practice in the communities and cultures.
CIVIL & CRIMINAL REMEDIES AVAILABLE IN INDIA AGAINST BIGAMY
Section 17, Hindu Marriage Act (HMA) declares that any marriage between two Hindus solemnized after the commencement of HMA is void if either party had a husband or wife living at the time of such marriage; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860) apply accordingly.
Section 5, HMA enumerates the conditions of a valid Hindu Marriage and specifically mentions under subsection (1) that the spouse should not be living at the time of Marriage. Section 17, HMA further explains it in detail.
Section 11, HMA lays down the conditions for void marriages and the first condition describes Bigamous marriage. A petition can be filed under section 11, HMA for declaring a marriage null and void.
Under Muslim personal laws, a male can legally marry up to four wives and other religions can also follow their customary practices in all spheres of life including marriages. All the personal laws in India are protected under Article 25 of the Constitution of India and it gives freedom to Individuals to practice religion without interference of the State subject to reasonable restrictions.
Section 494 of the Indian Penal Code (IPC) mandates that whoever, with a living husband or wife, marries in any case, and such marriage is declared void by reason of the marriage 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.
Section 495, IPC, states that whoever commits the offense defined in the preceding section i.e. Section 494 by concealing the fact of the former marriage from the person with whom the subsequent marriage is contracted, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.
Essentials for the Offence of Bigamy
The existence of a previously contracted marriage is one of the key elements of the offense of bigamy. While the spouse is living and the second marriage is contracted, it would be illegal and declared null and void.
The second marriage shall also be valid which means that all of the obligatory ceremonies under the personal laws governing the parties to the marriage should have been carried out properly.
The second marriage was to be declared void solely because the first husband or wife was living. Bigamy is proven only when the second marriage is rendered void due to the first wife or husband is living. Section 494 & 495, IPC is not applicable to marriages where customary laws give liberty to the husband or wife to enter into more than one marriage during the life time of the first spouse.
Why is Bigamy an offense?
All countries in the course of time have realized that monogamy is the most effective and preferred way of leading lives. Monogamy has numerous advantages like family stability, economic growth, social security of the child, family cohesion, etc. The nations that have outperformed human indices, growth, happiness, etc. have been the forerunners to accept monogamy as a preferred way of life apart from other systemic reforms introduced by them. Our legislature in its wisdom also understood that monogamy can give a stable way of life to the citizens of this country and therefore, not only second marriage during the lifetime of the first spouse is declared void under Section 11(i), HMA, but also, criminalized Bigamy by introducing Section 494 & 495, IPC.
How to Proceed in the Court and What Steps Are Involved in the Litigation?
A petition for nullity of the marriage can be filed by either spouse in case of Bigamy under Section 11, HMA. The main steps of Court proceedings include:
Step 1: Filing of the petition by husband or wife;
Step 2: Respondent’s filing of the Reply;
Step 3: Petitioner’s Evidence;
Step 4: Respondent’s Evidence;
Step 5: Arguments;
Step 6: Passing of the Judgment and Decree of Nullity of Marriage.
The offenses under Section 494 & 495, IPC are non-cognizable, meaning thereby, the police cannot take cognizance, register FIR and investigate the matter without other cognizable sections of the criminal code applicable in a case.
However, a criminal complaint before the magistrate is maintainable and after the petitioner’s evidence, if the allegations are found to be credible, FIR can be registered by the order of the Court or a trial can lead to conviction or acquittal depending upon the merits of the case.
Whether the Child Born Out of Void Marriages Be Legitimate?
Section 16 of the Hindu Marriage Act specifically states whether a child of a null and void marriage is born before or after the commencement of the Amendment Act, 1976, when a decree of nullity is given in respect of the marriage under HMA, and whether the marriage is declared void other than on the basis of a petition under HMA Act, any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate.
How Can a Matrimonial Lawyer Help You?
The individuals who pass through a turmoil of legal disputes can take wrong decisions, especially, when they are not experts in dealing with legal matters. The right approach in such matters is to find an excellent lawyer who can guide you through difficult situations and the legal process trouble-free. The best matrimonial lawyers can provide you with expert opinions on the legal remedies available to you and the consequences of such steps. You can request legal advice on your matter from our distinguished lawyers dealing with matrimonial litigation at The Law Codes.