Report No. 227
In 1988 a learned judge of the Andhra Pradesh High Court, Radha Krishna Rao, had issued an important note of caution:
"During the subsistence of the first marriage the second marriage will generally be done in secrecy. It is too idle to expect direct testimony. In some cases the purohit also who performed the marriage will be treated as abettor. The courts are giving acquittals 24on the ground that the required ceremonies for the second marriage have not been proved beyond reasonable doubt. Suitable legislation has to be made with regard to the mode of proof of the second marriage. If the marriage was done publicly and openly to the knowledge of one and all, the court can expect direct evidence.
When second marriage is being performed in secrecy, knowing fully well that it is an offence, if the courts insist on strict proof, it amounts to encouraging perjury. The motto of the court is not to encourage perjury, but to find out the real truth and convict the accused if there is a second marriage. Unfortunately, none of the social organizations which' claim about the protection of the rights of women, have taken any steps to see that suitable legislation be made with regard to the mode of proof for performance of the second marriage." - [1988 Cri LJ 1848].
However, linking the anti-bigamy provisions of the Act with the requirement of a ceremonial solemnization of marriages under Section 7 (2) of the Act, the Supreme Court later held that if a customary ceremony is incompletely or defectively performed (to get married again), the resulting second marriage will be non-existent in eyes of law and hence will not attract the anti-bigamy provisions of the Act, or of the IPC. See Bhaurao v State of Maharashtra AIR 1965 SC 1564
Going by this interpretation, if the saptpadi ceremony has been incompletely employed in view of the rule of Section 7 (2) there is all the more reason to treat the second allegedly bigamous marriage as non-existent.
If the anti-bigamy provisions of the Hindu Marriage Act are to be strictly enforced, there is a case for de-linking them from the provision of Section 7 of the Act under which some ceremony has to be necessarily employed for solemnizing a marriage.
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