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Report No. 227

Chapter III

Bigamy under Civil Marriage Laws

Special Marriage Act 1954

Monogamy is the rule under the Special Marriage Act 1954. Among the conditions for solemnization of a civil marriage spelt out in the Act the foremost is that "neither party has a spouse living" - Section 4 (a).

In respect of bigamy there are two different penal provisions under the Act. If a person already married, under whatever law, fraudulently contracts a civil marriage the provision of Section 43 of the Act reproduced below will apply:

"Save as otherwise provided in Chapter III, every person who, being at the time married, procures a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code, as the case may be, and the marriage so solemnized shall be void."

The other provision contained in Section 44, reproduced below, is meant for a person married under the Special Marriage Act who contracts a second marriage under any other law:

"Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in Section 494 and Section 495 of the Indian Penal Code, for the offence of 16marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void."

Chapter III of the Act, referred to in Section 43 reproduced above, provides the facility of turning a pre-existing marriage solemnized as per religious or customary rites into a civil marriage by registering it under this Act. This facility is also available subject to the condition that "neither party has at the time of registration more than one spouse living" - Section 15 (b). If a person having more than one spouse living fraudulently registers either of his marriages under this Act he will be guilty of the offence of knowingly making a false statement punishable under Section 45 of the Act.

The anti-bigamy provisions of the Special Marriage Act apply to every marriage contracted under its provisions irrespective of the religion of the parties. A court has specifically held that if a Muslim contracts a civil marriage under the Special Marriage Act instead of his personal law the anti-bigamy provisions of the Act will apply to him. See S. Radhika Sameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad 1997 Cri LJ 1655 (AP)

However, if a person who has registered his pre-existing marriage under the Special Marriage Act in terms of Section 15 contracts a second bigamous marriage, it is not clear from the language of the Act if the provision of Section 44 reproduced above will apply to the case. The words "Save as otherwise provided in Chapter III" in Section 43 are not clear in their meaning. In the fitness of things, since ex post facto registration of a religious or customary marriage turns it into a 17civil marriage for all purposes, the anti-bigamy provisions of the Act should also apply to such a case.



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




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