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Report No. 227

Chapter II

Penal Law on Bigamy

Bigamy in General

The Chapter on Offences relating to Marriage under the Indian Penal Code of 1860 contains two provisions relating to bigamy - the first of these applicable to married persons marrying again without concealing from the second spouse the fact of the first marriage, and the second to those who do so by keeping the second spouse in the dark about the first marriage. Section 494 of the Code reads as:-

"Whoever having a husband or wife living, marries 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.

Exception.- 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, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, 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 that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, 12inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."

Coming to the cases of bigamy where a person indulges in it by deceiving the second spouse, Section 495 of the Indian Penal Code says:-

"Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".

It will be seen that application of these provisions of the Indian Penal Code would be attracted only if the second marriage is void, for the reason of being bigamous, under the law otherwise applicable to the parties to a particular case; but not so otherwise.

As such the anti-bigamy provisions of the Indian Penal Code apply to all those whose marriages are governed by any of the following legislative enactments all of which regard a second bigamous marriage, by a man or woman, as void :

(i) Special Marriage Act 1954

(ii) Foreign Marriage Act 1969

(iii) Christian Marriage Act 1872

(iv) Parsi Marriage and Divorce Act 1936

(v) Hindu Marriage Act 1955

As regards the Muslims, the IPC provisions relating to bigamy apply to women - since Muslim law treats a second bigamous marriage by a married woman as void - but not to men as under a general reading of the traditional Muslim law men are supposed to be free to contract plural marriages. The veracity of this belief, of course, needs a careful scrutiny.

The anti-bigamy provisions of the Indian Penal Code would not apply also to tribal men and women if their customary law and practice does not treat their plural marriages as void. It has been judicially affirmed that Section 494 of the Indian Penal Code will not apply to members of Scheduled Tribes unless the tribal law applicable to a case treats a bigamous marriage as void. See, for instance, Surajmani Stella Kujur (Dr.) v Durga Charan Hansdah AIR 2001 SC 938

Preventing Bigamy via Conversion to Islam - A Proposal for giving statutory effect to Supreme Court Rulings Back

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