Report No. 42
Offences Relating to Marriage
In this chapter are enumerated six offences relating to the ancient institution of matrimony to which most communities and, indeed, most people attach vital importance as forming the essential basis of family life. Besides the principal offences of bigamy and adultery, fraudulent conduct in this field is made punishable under two sections (493 and 496). The maximum punishment prescribed for these offences ranges from five to ten years' imprisonment. Enticing or detaining a married woman with intent that she may have illicit intercourse with any person is also made an offence, but a minor one, punishable with imprisonment not exceeding two years or with fine or with both.
20.2. Section 493.-
Section 493 punishes a person who deceives a woman into believing that she is lawfully married to him and makes her live with him as wife and husband. In a way, the offences very near to, but not the same as, an offence of rape under clause four of section 375. As such, the punishment of one years' imprisonment for the offence is not unduly severe.
We considered a suggestion that the section should apply also to a woman who deceives a man in the same way and with the same object. Apart from the improbability of such cases occurring, the injury done to the man in body, mind or reputation by such deceit is negligible and need not be taken notice of in the Penal Code.
20.3. Section 49.-Definition of bigamy.-
Bigamy is defined in section 494 as the act of a person who, having a husband or wife living, marries, but only in a case where such subsequent marriage is void under her or his personal law. Until recently, polygamy was permissible for all communities in India except Christians and Parsis, and consequently the impact of this section fell mainly on women. With the passing of the Hindu Marriage Act of 1955, the whole population of India, except the Muslim male and some tribes among whom polygamy is permitted by custom, are concerned with the section.
The phrase "having a husband or wife living" used in the definition was natural at a time when divorces were rare even where permissible by law, and the bond of marriage subsisted until death of one party to the marriage severed it. In a case where the first marriage was dissolved under the law, each of he parties would cease to be "husband" and "wife", respectively, of the other and, consequently, the fact of that individual being alive would be irrelevant to the application of this section. Since it is really, not so much the fact of the person "having a husband or wife living", as the legal subsistence of the first marriage that makes the subsequent marriage void and an offence, we consider that it would be preferable to define bigamy as follows.-
"Whoever, being married, contracts another marriage in any case in which such marriage is void by reason of its taking place during the subsistence of the earlier marriage, commits bigamy."
The expression "contracting a marriage" which is used in the second paragraph of the exception seems to us to be more expressive than the word "marries" used in the existing definition.
20.4. Exception, first par.-to be omitted as superfluous.-
The first exception provides that the section does not extend to any person whose marriage has been declared void by a court of competent jurisdiction. It has been remarked1 "that a person accused of an offence under section 494 may plead in his defence that the first marriage was null and void even though he had not obtained a declaration to that effect" by a court. In a case where the parties have gone through a ceremony of marriage which is utterly ineffective in law so that they have never acquired the status of husband and wife, neither party can be said to "have a husband or wife living" at the time of contracting the second marriage, and consequently neither party commits the offence defined in this section.
It is, therefore, doubtful whether the first exception serves any useful purpose even at present. When the definition of bigamy is altered, as proposed above, it would be rendered quite superfluous. A person whose alleged first marriage was void ab initio cannot be said to "be married" and his subsequent marriage cannot be said to be contracted during the "subsistence" of any earlier marriage. We, therefore, propose to omit the first exception.
1. Gnanasaundari v. Nallathambi, AIR 1945 Mad 516.
20.5. Second part to be retained.-
The second Exception is necessary and should be retained with a few verbal modifications.
20.6. Mens rea of the offence.-
It has been held that, though section 494 makes no reference to intention or knowledge, the normal presumption that a penal statute requires some mens rea must be given effect to. In Kunju Ismail1, the first accused, a Muslim woman, took legal opinion that she could effectively divorce her husband, went through the formalities thereof, gave notice to him and, after waiting for a reasonable time, married the second accused. The Court found that the divorce was valid and consequently the accused was not guilty of bigamy. It also held, after an elaborate discussion of the mens rea aspect of the offence, that there could be no criminal knowledge on the woman's part that her first marriage was subsisting when she married again, and hence she could not be guilty under section 494. We do not think it is necessary to indicate the mens rea specifically in the definition of bigamy.
1. Kunju Ismail, AIR 1959 Ker 151; See also Janaki Amma, ILR (1955) Trav-Co 137.
20.7. Re-marriage after decree of divorce.-
Where a marriage has been dissolved by a decree of divorce, but the law1 fixes a period during which it will not be lawful for either party to the dissolved marriage to marry again, the question may arise whether a person remarrying within that period commits an offence against section 494 as it stands. It may be urged that as soon as the decree of divorce is pronounced, the parties cease to be husband and wife and, thereafter, neither has a "husband or wife living" for the purposes of section 494.
But, obviously, this line of argument, if accepted will defeat the object of the marriage law in prohibiting the divorce from remarrying until the expiry of a specified period after the decree. The same question may be raised with reference to the revised" definition of bigamy. Do the parties to the divorce proceedings cease to "be married" immediately a decree of divorce is pronounced or only after the expiry of the specified period? We consider that the answer should be the latter, if not as a matter of interpretation, at any rate, as a matter of policy. We, therefore, propose to add an Explanation to this effect.
1. See section 57 of the Indian Divorce Act, 1969; section 48 of the Parsi Marriage and Divorce Act, 1966; section 30 of the Special Marriage Act, 1954; and section 15 of the Hindu Marriage Act, 1955. It is noticed that these four sections use different language to express more or less the same idea. It is desirable that the language of these sections should be assimilated.
20.8. Effect of conversion on marriage.-
Incidentally, we wish to point out that there is at present considerable uncertainty as to the effect of conversion, on marriage, particularly when the conversion is from a monogamous religion to a polygamous religion and vice versa. The Law Commission in a previous Report1 had gone into this question and recommended legislation to replace the existing Converts' Marriage Dissolution Act of 1866, which would be uniformly applicable to all conversions and confer on a convert a right to have the marriage contracted before conversion dissolved on such terms as might be considered just and proper. We would draw the attention of Government to this Report and express the hope that it will be implemented soon.
1. 18th Report on the Converts' Marriage Dissolution Act, 1886.
20.9. Punishment for bigamy under sections 494 and 495.-
Under section 494, the offence of bigamy is punishable with imprisonment upto seven years. Where it is accompanied by concealment of the former marriage from the person with whom the subsequent marriage is contracted, the offence is punishable with imprisonment upto ten years. We are of the view that the maximum in both cases is unnecessarily high and should be reduced to three years for ordinary bigamy and to seven years for the aggravated form.
20.10. Sections revised.-
In the light of the foregoing discussion, sections 494 and 495 may be replaced by the following two sections.-
"494. Bigamy.- Whoever, being married, contracts another marriage in any case in which such marriage is void by reason of its taking place during the subsistence of the earlier marriage, commits bigamy.
Explanation.- Where a marriage has been dissolve by the decree of a competent court under an enactment, by the parties are, by virtue of a provision of the enactment under which their marriage is dissolved prohibited from remarrying within a specified period, then, for the purposes of this section the marriage shall, notwithstanding its dissolution, be deemed to subsist during that period.
Exception.- The offence is not committed by any person who contracts the later marriage during the life the spouse by earlier marriage, if, at the time of the late marriage, such spouse shall have been continually absent from such person for seven years and shall not, within that period have been heard of by such person as being alive, provided the person contracting the later marriage informs the person with whom it is contracted of the real state of facts so far the same are within his or her knowledge.
495. Punishment for bigamy.- (1) Whoever commits bigamy shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
(2) Whoever commits bigamy, having concealed from the person with whom the later marriage is contracted the fact of the earlier marriage, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."