The section contemplates that the offender’s husband or wife, as the case may be, must be living and the offender must marry in any case in which such marriage is void because of the reason that it has taken place during the life of such husband or wife, as the case may be.
There is an exception attached to the section which states that this section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction. It also does not extend to any person who contracts a marriage during the life of a former husband or wife, if at the time of the subsequent marriage such husband or wife shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within those seven years, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are known to him or her.
In other words, this section is inapplicable to two cases. First, it does not apply to a person whose marriage with such husband or wife, as the case may be, has been declared void by a competent court. Secondly, it does not apply to a person who marries when the husband or the wife, as the case may be, is alive but has been continually absent from such person for at least seven years and has not been heard of by him as being alive during that time.
This section does not apply to Mohammedan men. But it does apply to Mohammedan women. By virtue of section 17, Hindu Marriage Act, 1955 it does apply to all Hindus whose marriage has been solemnised after the coming into existence of the Hindu Marriage Act, 1955. It is applicable to Christians by virtue of Act XV of 1872, to Parsis by virtue of Act III of 1936, and to all whose marriages have been solemnised under the Special Marriage Act, 1954.
It is obvious that to hold a person guilty under this section it is necessary to prove that the previous marriage of the accused was valid and subsisting. Naturally, in the event of the previous marriage being illegal and thus non-existent, contracting another marriage would not bring the accused within the purview of this section.
This is clear from the words ‘whoever marries’ which means whoever marries validly or whoever marries and whose marriage is a valid one. If there is no valid marriage there is no marriage in the eye of law. Where the essential conditions of a valid marriage have not been fulfilled, such as ‘homa’ and ‘saptapadi’ in the case of Hindus the second marriage is not a valid marriage, and consequently the charge of bigamy against the accused must fail.
The mere admission of the second marriage by an accused is not enough, it must be established that the essential conditions of a valid marriage had been gone through. Mere registration of a marriage at the caste organisation, where such a practice is in vogue, is not enough to prove the existence of a second marriage. And a certificate of marriage obtained under section 16, Special Marriage Act, 1954 is also not a proof of marriage.
Where the complainant produced oral evidence that ‘saptapadi’ and ‘kusundika’ (i.e., applying vermilon at the place of parting of hair on the head of the bride) had been gone through along with ‘homa’ in respect of the first marriage, and certain documentary evidence in the form of letters by the husband to his wife and by the husband’s father to the wife’s mother were also adduced, there could be no doubt as to the validity of the first marriage.
But where the validity of the first marriage could not be established through evidence, it was not necessary to look into the aspect of the second marriage for the purposes of bigamy. The Kerala High Court has held that where it is established that the accused at the time of second marriage honestly and genuinely believed that the tie of his first marriage had been severed by a deed of divorce between the parties to the first marriage, and the parties under it had highlighted that they were living separately and it was impossible for them to live together and that they resolved to terminate their marriage and were free to marry again, the accused deserved benefit of doubt.
Where the lower court without granting a divorce passed an order relieving the physically weak wife from the burden of the sex demands of the husband and also permitted him, at the request of the wife, to have another wife, it was held that the decision of the court being wrong was liable to be set aside.
It has been held by the Supreme Court that where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under section 494, Indian Penal Code if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed.
The voidness of the marriage under section 17 of the Hindu Marriage Act, 1955 is in fact one of the essential ingredients of section 494 of the Code because the second marriage would become void only because of the provisions of section 17 of the Hindu Marriage Act.
What section 17 of the Hindu Marriage Act contemplates is that the second marriage must be according to the ceremonies required by law. If the marriage is void its voidness would only lead to civil consequences arising from such marriage. Section 17 of the Hindu Marriage Act has to be read in harmony and conjunction with section 494 of the Code.
Therefore, merely because the second marriage even if performed by performing all the essential ceremonies turns out to be void by virtue of section 17 of the Hindu Marriage Act, 1955, it cannot be said that the accused would not be guilty under section 494 of the Code. Proceedings under section 494 do not abate necessarily with the death of the complainant and the court in its wisdom is free to allow continuation of the proceedings by another person. A second marriage performed before the Hidnu Marriage Act, 1955 came into existence does not attract penalty under section 494 of the Code.
In Urmila v. State it was alleged that the accused went through a second marriage according to the Arya Samaj custom for which three and a half rounds of sacred fire are enough to complete a marriage. Saptapadi was not performed. The Supreme Court held that the marriage was not complete and thus there was no liability for bigamy.
In Gomathi v. Vijayraghvan the question of paternity of a child born out of second marriage was involved. The second wife denied the second marriage and claimed to be a virgin. The first wife moved an application requesting the court to direct the husband, second wife and child to undergo blood test.
It was held that under section 494 the party has only to prove that during the subsistence of the first marriage the second marriage had taken place and its essential ceremonies were performed, and thus dismissal of the application was proper. In this case the Supreme Court’s judgment in Gouthem Kundu v. State of West Bengal was relied on in which the appellant was married to the second respondent and after living together for some time the wife went to reside with her parents.
Some four months later she conceived. On return to her matrimonial home she was meted out cruel treatment by her husband and other family members because of the pregnancy. Ultimately she returned to her parental home and gave birth to a female child. She filed a petition under section 125, Code of Criminal Procedure, 1973 for maintenance.
The appellant moved a revision before the High Court against the order of maintenance. During the pendency of the revision petition he came forward with an application praying for the blood test of the second respondent and the child to prove that he was not the father of the child as according to him if that could be established he would not be liable to pay maintenance.
The Supreme Court rejected the application saying that no person can be compelled to give sample of blood for analysis against his or her will and no adverse inference can be drawn against him or her for this refusal. Also, the expression ‘conclusive proof in section 112, Indian Evidence Act, 1872 must be understood by its definition in section 4 of the Act.
In P. Satyanarayana v. U. P. Mallaiah, a wife deserted her husband. Ten years after the desertion the husband married a second time. The Supreme Court ruled that the prosecution was not absolved from the burden to prove that the second wife was taken after solemnization of due ceremonies of a Hindu marriage.
In Sarla Mudgal v. Union of India2 the Supreme Court held that the expression ‘void’ in section 494 has been used in the wider sense. A marriage which is in violation of law would be void in terms of the expression used under section 494. A Hindu marriage solemnised under the Hindu Marriage Act, 1955, can only be dissolved on any of the grounds specified under the said Act. Till the time a Hindu marriage is dissolved under the Act none of the spouse can contract a second marriage. Converting to Islam and marrying again would not by itself dissolve the Hindu marriage under the Act.
The second marriage of a Hindu husband after his conversion to Islam would, therefore, be in violation of the Act and as void in terms of section 494. Any act which is in violation of the mandatory provisions of the law is perse void, and the apostate husband would be guilty of the offence under section 494 of the Code as all the four ingredients of this section are satisfied in the case.
In S. Radhika Sameena v. SHO, Habeebnagar Police Station, Hyderabad3 it has been held that when a Muslim man, married under the Special Marriage Act, 1954, entered into a second marriage under Muslim Law, he would be liable to be prosecuted for bigamy under section 494 of the Code.
In Lily Thomas v. Union of India, the Supreme Court held that the 1995 decision of the Supreme Court in Sarla Mudgal v. Union of India? holding a Hindu husband who had after conversion to Islam contracted second marriage dissolving his first marriage guilty under section 494 does not create any new offence, need not be given prospective operation.
It does not violate freedom of religion guaranteed by Article 26 and right to life and personal liberty guaranteed by Article 21, and thus the review petition on ground of violation of Article 20(1) stands dismissed. It cannot be said that the second marriage by a convert male Muslim has been made an offence only by judicial pronouncement.
The court has only interpreted the existing law which was in force and so cannot be prospective from the date of judgment because concededly the court does not legislate but only gives an interpretation to an existing law. The procedure established by law under Article 21 means the law prescribed by the legislature. Sarla Mudgal has neither changed the procedure nor created any law for prosecution of persons sought to be proceeded with under section 494.
It would, therefore, be doing injustice to Islamic law to urge that the convert is entitled to practise bigamy notwithstanding the continuance of his marriage under the law to which he belonged before conversion. The question of status of second wife and children born out of wedlock was not gone into.
The Supreme Court had not issued any direction for codification of common civil code. Despite his conversion he would be guilty of offence under section 17 of the Hindu Marriage Act, 1955 read with section 494 of the Indian Penal Code since mere conversion does not automatically dissolve his first marriage.
Under the Mohammedan law a child given in marriage by any person other than the father or the grandfather has the option to ratify the marriage or repudiate it on attaining puberty, khyar-ul-bulugh, and there is no difference whether the child given in marriage be a boy or a girl.
A Mohammedan girl whose father was dead was given in marriage by her mother to a man before she had attained puberty. The man was imprisoned in connection with a crime he had committed and the marriage was not consummated. On attaining puberty the girl married another man. She and this man were held not guilty of bigamy and abetment of bigamy respectively.
The repudiation may be express or implied, and marrying another man on attaining puberty is an implied repudiation. However, a unilateral repudiation of marriage by a Mohammedan woman by ‘faskh’ was held by the Kerala High Court to have no legal sanction and a second marriage by her would amount to bigamy. The Calcutta High Court held that a second marriage contracted by a Mohammedan woman during the period of her ‘iddat’ does not entail liability under section 494 of the Code. A Mohammedan marriage came to an end immediately after either of the parties renounced Islam.
But section 4 of the Dissolution of Muslim Marriage Act, 1939 says that renunciation of Islam by a born Muslim married woman or her conversion into another religion does not dissolve the marriage automatically but under section 2 of the Act she has a right to obtain a decree of dissolution under any of the grounds mentioned therein.
Where a marriage is solemnized under the provisions of the Special Marriage Act, 1954, and thereafter both the parties convert to Islam, the marriage cannot come to an end according to the Mohammedan law because the marriage itself had not taken place under that law. Such marriage can be dissolved under the provisions of the Indian Divorce Act. The position does not change if only one of the parties to the marriage alone gets converted to Islam.
The Calcutta High Court reviewed all earlier case law and decided that the rule of Mohammedan law that if one of the parties to the marriage adopted Muslim faith in a foreign country the marriage would automatically stand dissolved if the other spouse did not adopt the same faith before the completion of three menstrual periods did not apply to non-Muslims of a country whose State religion was not Islam like India.
Thus, a Hindu wife who embraced Islam since her marriage but her husband did not do so even though three menstrual periods had been over since the conversion, was not entitled to a declaration that the marriage stood dissolved under the Mohammedan law. Under the Hindu law the apostasy of one of the parties to the marriage did not dissolve the marriage.
Where a Christian entered into a second marriage according to Hindu rites, the second marriage would not be valid in the eye of law and he would be held not guilty of bigamy under section 494. Where marriage of the accused with the complainant was dissolved by a decree of divorce of a district court in Sweden and no appeal was preferred by the complainant, marriage of the accused with another lady after expiry of the period of appeal does not amount to bigamy.
Custom as a defence
The Calcutta High Court upheld a caste custom which allowed wife to have a ‘nikah’ or ‘sagai’ marriage after she had been left by her first husband, and this would not amount to bigamy. The Bombay High Court gave importance to a caste custom which permitted a husband to divorce his wife for a sufficient reason.
Where a man belonging to a particular caste executed a deed of divorce to his wife, it was held that the deed was proved but since it had not been executed for a sufficient reason, the parties entering into subsequent marriage would be guilty of bigamy. The Madras High Court held the view that the courts must allow evidence of such custom.
The law must now be understood in the light of section 29 (2) of the Hindu Marriage Act, 1955. Where a deed of divorce between the parties existed, it was held that the prosecution is under a duty to establish that the marriage could not be dissolved by a customary right of divorce.
Where the accused was held guilty of bigamy, but he was a first offender, his character otherwise was good and he had lost his employment, it was held that benefit under section 4 (1) of the Probation of Offenders Act, 1958 should be given to him.
Similarly, where the accused who had been held guilty of bigamy appeared before the court and promised that henceforth he would have no truck with his second wife and that he would live with his first wife and would not violate the law, it was held that he must be released on probation.
Where there was a dowry dispute between the families of a husband and wife, and the wife was sent back to her parental home and their conjugal life was not restored, and the accused husband married another woman with whom he had developed intimacy, it was held that the sentence of two years’ imprisonment and a fine of five hundred rupees against the husband was in order, but since the parties to the first marriage wished to compound they were allowed to do so by the husband paying the first wife forty thousand rupees in addition to the cost of five thousand rupees.
The offence under section 494 is non-cognizable, bailable and compoundable when permitted by the court which is trying the case, and is triable by magistrate of the first class.