Report No. 156
9.36. Section 494 defines bigamy 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 his or her personal law.
9.37. Till the enactment of the Hindu Marriage Act, 1955, the impact of this section fell only on Christians and Parsis. But after the coming into force of that Act, Hindus also have come within the purview of this provision. Muslims and some tribes, who are permitted by their family law and customs to practice polygamy, are excluded.
9.38. The Law Commission in its 42nd Report had revised the section as follows:
"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 dissolved by the decree of a competent court under an enactment but the parties are, by virtue of a provision of the enactment under which their marriage is dissolved prohibited from re-marrying within a specified period, then, for the purpose 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 of the spouse by earlier marriage, if, at the time of the later marriage, such spouse shall have been continually absent from such person for seven years and shall not, within that period, have heard of by such person as being alive, provided the person contracting the later marriage inform the person with whom it is contracted of the real state of facts so far as the same are within his or her knowledge."
The Commission felt that the punishment for bigamy was "unnecessarily high" and so be reduced from seven years to three years.1
1. Report, para. 20.10.
9.39. The Commission also recommended the reduction of punishment for the aggravated form of bigamy, under section 495 namely where bigamy is accompanied by the concealment of the fact of former marriage from the person with whom the subsequent marriage is contracted, from ten years to seven years.1
1. Ibid., para. 20.10.
9.40. But the I.P.C. Bill (clause 198) has not accepted the recommendation of reduction of punishment for bigamy under section 494.
9.41. The Bill significantly has added Explanation I which stipulates that a person shall be deemed to marry again whatever legal defect there may be in contracting, celebrating or performing such marriage.
For prosecution for bigamy to succeed, prosecution must show first of all that at the time of second marriage, there was a valid subsisting marriage. Where proof of either marriage is unsatisfactory, there would be no conviction. Explanation I to section 494 in the Bill has introduced a deeming fiction. It deems the second marriage valid despite legal defects in contracting, celebrating or performing such marriage. By this, the accused cannot take the defence of non-performance of ceremonies in the second marriage to save himself from the clutches of the offence of bigamy.
The incorporation of this deeming provision in Explanation was in consequence of the judicial decisions on the scope of section 17 of the Hindu Marriage Act, 1955. The Supreme Court in Bhaurao v. State of Maharashtra, AIR 1965 SC 1964 held that the offence of bigamy was not proved unless it was established that the second marriage was celebrated with proper ceremonies and due form. This conclusion was reached on the ground that section 17 of the Hindu Marriage Act, had used the word "solemnized".
Accordingly the court held that it was essential for the purpose of section 17, that the marriage to which section 494 applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and due form. As the law requires no specific ceremonies but recognises ceremonies of marriage according to custom, it becomes extremely difficult to determine which ceremony or ceremonies were really essential.
Bhaurao decision was reiterated in two subsequent decisions of the Supreme Court in Keval Ram v. H.P. Administration, AIR 1966 SC 1564 and Priya Bala v. Suresh Chandra, AIR 1971 SC 1153. Consequently a great burden is cast on the prosecution to show that the second marriage is performed with all due formalities. This burden in many cases cannot be discharged satisfactorily to prove the offence of bigamy.
Therefore, it was felt necessary to add the Explanation. The Committee on the Status of Women in its Report "Towards Equality" (1975) had recommended the incorporation of Explanation to section 17 of the Hindu Marriage Act that an omission to perform some essential ceremonies by parties shall not be construed to mean that the offence of bigamy was not committed. This recommendation has also found a place in Explanation (1) to section 494 in the Bill.
Explanation 2 has been added to section 494 by which it is made clear that where the relevant divorce law prohibits re-marriage of the parties within a specified period after the decree of dissolution, such re-marriage amounts to bigamy. Explanation 2 is as follows:
"Where a marriage has been dissolved by a decree of a competent court but the parties are, by virtue of a provision of the enactment under which their marriage is dissolved, prohibited from re-marrying within a specified period, then for the purposes of this section, the marriage shall, notwithstanding its dissolution, be deemed to subsist during that period."
The Supreme Court in Sarla Mudgal's case,1held that conversion from a monogamous religion (Hinduism) to a polygamous religion (Islam) for the purpose of second marriage, during the subsistence of first marriage, would make the second marriage violative of justice, equity and good conscience etc. The Court also held that the apostate husband would be guilty of the offence of bigamy. The Court has thus removed the uncertainty as regards the effect of conversion on marriage.
1. Sarla Muddal v. Union of India, AIR 1995 SC 1531.
9.42. We recommend that another Explanation, Explanation 3 be added to section 494 incorporating the principle laid down by the Supreme Court in the Sarla Mudgal's case on the following lines to put the matter beyond doubt:
"Explanation 3.-The offence of bigamy is committed when any person converts himself or herself to another religion for the purpose of marrying again during the subsistence of the earlier marriage."