Bigamy (Section 494 of IPC)

Introduction

Bigamy is the act of marrying one person when the individual is

already legally married to another person. For example, if A is
legally married to B and he proceeds to marry C during the
subsistence of his marriage with B then A will be liable for
bigamy. However, if the first marriage is declared void due to
any reason, then such two individuals have the freedom to
marry any person of their choice. When a couple is undergoing
the procedure of divorce, neither of them can marry until and
unless the divorce is final in the eyes of the law. In the present
day, bigamy is penalized in many countries as their ideology is
favourable towards monogamy however there are certain
countries where bigamy is allowed legally.

The Indian Penal Code, 1860 explains bigamy under Section 494.
The said provision states that any person who already has a wife
or husband living, further proceeds to marry another person
while being lawfully wedded to such wife or husband shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
Moreover, such marriage shall be considered void in whatsoever
case.
There are certain exceptions to the aforementioned provision
wherein the person who marries another individual shall not be
liable for bigamy. The exceptions are as follows –

1. The said provision does not extend to any individual

whose marriage with their partner from the prior
marriage has been declared void by a court of competent
jurisdiction.

2. The said provision does not extend to any individual

who contracts a marriage during the lifetime of their
former partner wherein such partner at the time of such
individual’s second marriage was not heard of for a
period of seven years or wherein there is no information
of them being alive. By virtue of presumption provided
under Section 108 of the Indian Evidence Act, 1872, it
may be concluded that a person who has been missing
for more than seven years is presumed to be dead and
that when the individual contracts a second marriage, it
shall be understood that no husband or wife is living at
the time of the second marriage and thus, the offence of
bigamy is not constituted. The condition that is inclusive
of this exception is that the individual contracting the
second marriage must, before the second marriage takes
place, inform the person they are about to marry about
the facts to the best of their knowledge regarding their
previous partner.
Section 495 of the Indian Penal Code, 1860

Section 495 of the Indian Penal Code, 1860 further talks about
the offence of bigamy but with the addition of the vice of
concealment. When an individual does the act of bigamy by
concealing the fact of their former marriage from the person
with whom they contract their second marriage then such
individual shall be liable under Section 495. Such individuals
shall be punished with imprisonment of either description for a
term which may extend up to ten years and shall be liable to
fine or both. In addition to this, a complaint about cheating can
be filed under Section 415 of IPC in case the individual conceals
the fact of first marriage.

Essential elements to constitute the offence of bigamy

As per Section 494 of the Indian Penal Code, 1860, the following
are the essential elements to constitute the offence of bigamy –

Existence of a prior lawful marriage

In the offence of bigamy, one of the essential elements is that

of the existence of a prior lawful marriage. The mere
subsistence of a prior lawful marriage itself declares the
subsequent marriage void because it confirms the existence of
a living wife or husband of such individual. In case the prior
marriage is not valid in the eyes of the law then marrying again
will not be labelled as bigamy.
Validity of subsequent marriage

It is understood from the first element that the prior marriage

must be a lawful one, however, the second essential element is
that the subsequent marriage in question must also be a lawfully
valid one. The couple willing to marry must take part in all the
mandatory rituals and ceremonies as required in the personal
law that governs their marriage. In case the subsequent
marriage is contracted without following or performing the
required rituals then it shall be void in itself which in turn
declares that the offence of bigamy cannot be constituted.

This element can be well understood through the case of Satya

Devi v. Khem Chand (2013), wherein the wife filed a case against
her husband for the offence of bigamy as well as cruelty.
However, since she could not prove that her marriage was
contracted in accordance with the law, the second marriage
remained valid and her marriage was declared void. Therefore,
the case was dismissed.

Existence of the partner from prior lawful marriage

The sole basis of the second marriage being void shall be due to
the existence of the partner from the prior lawful marriage. This
means that the wife or husband of such individual from the
prior lawful marriage must be alive during the time of the
subsequent marriage to declare it void and establish a case of
bigamy. It is pertinent to note that this element does not apply
to the cases where subsequent marriages are allowed by
personal laws such as Sharia law.

Procedure to file a complaint against bigamy

The aggrieved person can record a case of bigamy either in the

police station or at the court. The father of such an aggrieved
female can likewise make a complaint under Section 494 and
Section 495 of the Indian Penal Code, 1860. A request for
declaring the subsequent marriage void can be recorded by the
parties of such subsequent marriage and not the first partner.

Conversion and bigamy – the legal paradox

As the Hindu law strictly prohibits bigamy, the men belonging

to the Hindu religion started to convert to Islam to be able to
marry again during the subsistence of their first marriage. Since
these men converted to Islam which permitted the practice of
polygamy they could conveniently escape the legal
consequences arising from the provisions of Hindu law which
penalize bigamy.

In the landmark case of Sarla Mudgal v Union of India (1995),

the Hon’ble Supreme Court dealt with the question of whether
converting to Islam and contracting second marriage will be
considered valid or not and if not, then will such individual be
held liable for bigamy as per Section 494 of the Indian Penal
Code, 1860 or not. In an attempt to answer these questions, the
Apex Court stated that when two individuals marry each other
as per the provisions of a particular personal law then such
marriage shall continue to be governed under the same personal
law irrespective of the fact that one of the individuals to the
marriage has converted to another religion. Therefore, the
individual who converts to another religion and attempts to or
marries again during the subsistence of their first marriage will
be held liable for bigamy. Such individuals shall not escape the
legal consequences as elucidated under Section 494 of the IPC.

The case of Sarla Mudgal v Union of India thus established that

by merely converting to another religion, no person can escape
the liability for committing the offence of bigamy and the
conversion itself does not free such person from the tenets of
their first lawful marriage.

Status of a second wife in India

Even in the present day, various negative aspects come along

when we think about the condition of second wives in our
society. These may be the lack of recognition of the marriage,
the burden of bearing the shame and hate from people, the pain
of not being able to give her children a legal status which
includes the problem of the succession of property, etc.

The Indian Penal Code, 1860 strictly prohibits bigamy and due
to this reason there is no possibility of gaining legal recognition
for the second wife, however, as per the circumstances of her
marriage, she may be given certain rights and legal support. One
of the instances where the second wife may claim rights and
legal support is when the husband conceals the fact of his first
marriage. In such a situation, the husband of the second wife
will be liable under Section 495 of the Indian Penal Code, 1860.

Maintenance to the second wife

In a prima facie case of a second marriage, it might first appear

that the second marriage is null and void as per the laws and
thus the second wife shall not be entitled to get any
maintenance but the Hon’ble Supreme Court through the
landmark case of Pyla Mutyalamma @ Satyavathi v. Pyla Suri
Demudu & Anr. (2011) stated that even the second wife can
claim maintenance from her husband. It further held that the
claim of maintenance cannot be refused on the ground of the
validity of the marriage.

In the afore mentioned case, the appellant Pyla Mutyalamma

alias Satyavathi was the second wife of the respondent Pyla Suri
Demudu. The two parties got married in a temple as per the
Hindu rites in the year 1974. They had three children and after
25 years of their marriage, the respondent deserted her. After
hearing both the parties, the Trial Court in Andhra Pradesh
awarded Rupees 500/- as maintenance and on appeal by the
respondent the Andhra Pradesh High Court set aside the order
holding that since the appellant was the second wife of the
respondent she was not entitled to maintenance. Aggrieved by
the order of the High Court of Andhra Pradesh, the appellant
appealed before the Supreme Court.
The Supreme Court held that if the second wife was deserted by
her husband, she will be entitled to get maintenance from him
under Section 125 of the Criminal Procedure Code, 1973,
irrespective of the validity of the marriage. Section 125 of
Cr.P.C. functions on de facto marriage and not marriage de jure.
Hence, the validity of the marriage cannot be a ground for
refusal of maintenance if other requirements of Section 125
Cr.P.C. are fulfilled. In the present case, the Hon’ble Apex Court
allowed the second wife’s appeal and restored the Trial Court’s
order which granted her Rupees 500/- as maintenance.

Rights of children born out of second wedlock over father’s

property

The children born out of second wedlock will have the right to
inherit their father’s property. In the case of Revanasiddappa v.
Mallikarjun (2011), it was held that children born out of second
wedlock will have the right to their father’s ancestral property.
Further, the Hindu Marriage Act under Section 16(3) does not
mention any restriction on the property right of an illegitimate
child. However, such property rights only extend to the
property of the parents of such illegitimate children. Thus, such
children will have the right over the property of their parents
whether self-acquired or ancestral.

In the case of Vidyadhari & Ors v. Sukhrana Bai & Ors. (2008), it
was held by the Supreme Court that the children born of second
wedlock are entitled to a share in the property of their father,
though the second marriage itself is void. If an individual
marries a second time during the subsistence of his first
marriage, the children born out of such wedlock will still be
legitimate.

Will attending a second marriage amount to abetment or not?

Attending a second marriage will not amount to abetment of the

same as there is no instigation or preparatory act present on the
part of the attendees during the happening of such second
marriage. In the case of Manju Verma and Ors. v. State & Anr.
(2012) it was held that the mere participation of the attendees
in the second marriage shall not amount to abetment as there is
a lack of support, preparation or active suggestion towards the
commission of bigamy on part of such attendees or relatives.

Further, in the case of Muthammal and Ors. v. Maruthathal

(1981), it was held that only when there is evidence to prove
that the attendees have in fact abetted or instigated the acts of
the principal offender towards the commission of the crime of
bigamy, only then such people will be held liable for abetment
of the second marriage.

Live-in relationships and bigamy

Live-in relationships have been considered taboo in Indian

society for a long time and the main factors for the non-
acceptance of such relationships are the lack of legal
recognition, pre-marital sex and illegitimate children. But the
main question here is whether the anti-bigamy laws apply to
live-in relationships or not. The offence of bigamy does not
extend to live-in relationships because there is no presence of a
legally valid marriage contracted between the two parties.

The Supreme Court in the case of Khushboo v. Kanniammal &

Anr (2010) opined that when a man and woman live together
without marriage, it cannot be considered as an offence. The
Apex Court had also held that there was no law that prohibits or
restricts live-in relationships or pre-marital sex.

Further, in the case of Tulsi v. Durghatiya & Ors (2008), it was

held that the children born out of live-in relationships are not
to be treated as illegitimate. However, there are certain
conditions such as the parents must have cohabited for a
considerable amount of time under one roof so that the society
recognizes them as husband and wife i.e, there is a presumption
of marriage between such couple. Another important case when
it comes to live-in relationships is the case of Rameshchandra
Daga v. Rameshwari Daga (2004) which recognized and upheld
the maintenance rights of the women who are tied in invalid
marriages or other such informal relationships.

Illustrations

Let us take an illustration where a male and female legally

solemnised their marriage a few years ago. Due to
dissatisfaction with his wife, the husband leaves her without
giving a divorce or dissolving the first marriage and marries
again to another person, other than the present wife, during the
persistence of the marriage with her. In this case, the husband
is the offender due to his commission of the crime of bigamy,
and the wife is an aggrieved party who is entitled to sue him.

Who can file a complaint

A complaint can be filed against a person who committed the

punishable offence under Section 494 of the IPC, by his or her
legal spouse, wife, or husband, as the case may be. There are no
discriminatory restrictions that the victim or aggrieved party
shall be only a wife. If a wife commits such a serious offence,
her husband can file a complaint with an appropriate authority
and succeed in punishing her by proving all the essentials of
Section 494 of the IPC in a court of competent jurisdiction.

Complaint by the legal wife

If the aggrieved party in the case of bigamy is a legal wife,

then Section 198(1)(c) of the CrPC allows either the wife or any
of the following persons to file a complaint.

• Her parents, either father or mother;

• Her siblings, either brother or sister;

• Her children, either son or daughter;

• Her aunt or uncle, either paternal or maternal; or

• Any person who was related to her, either by blood,

adoption, or marriage.
Complaint by the Armed Forces personnel

If the aggrieved party in a bigamous marriage is a legal husband,

he is the competent person to lodge a complaint against the
accused wife, not others. However, if he is an Armed Forces
personnel who cannot obtain leave for this purpose, then any
other person can file a complaint on his behalf in accordance
with the procedure mentioned under Section 198(1)(b) of the
CrPC.

Complaint by the second wife

To achieve the object of Section 494 of the IPC, the term

“aggrieved party” shall be construed liberally and broadly by
the courts in such a way as to include the second wife of the
accused, even if such a marriage is void and she is not a legal
spouse in the eyes of the law. Because the accused’s act of
bigamy not only causes suffering to the first wife but also puts
the social life of the second wife of the offender in danger.
Therefore, the Supreme Court ruled in A. Subash Babu v. State
of Andhra Pradesh and Anr. (2011) that the second wife of the
accused is also considered to be a “wife” under the ambit of
Section 494 of the IPC as well as an “aggrieved party” by
competent authorities so that she is permitted to file a
complaint against the offender, unless the second marriage is
declared to be void by a decree as per Section 11 of the Hindu
Marriage Act, 1955.

Jurisdiction of the court to try the case of bigamy

The jurisdiction of the court to conduct criminal proceedings
for bigamy cases is provided under Section 182(2) of
the Criminal Procedure Code, 1973 (hereinafter referred to as
the “CrPC”). This provision states that a case of bigamy can be
tried only by those courts that have local jurisdiction in either
of the following places.

• Where the alleged crime is committed;

• Where the accused last resides with the other spouse of

the first marriage;

• Where the first wife is permanently residing after the

alleged commission of the offence of bigamy.

Nature of the offence under Section 494 IPC

The nature of the offence specified under Section 494 of the IPC
is non-cognizable, bailable, compoundable, and triable by the
magistrate of the first class.

Non-cognizable

The framers of the Indian Penal Code meant the offence of

marrying again during the lifetime of the husband or wife was a
very serious offence due to its adverse effect on the roots of the
marriage institution. But it was made non-cognizable under the
First Schedule of the CrPC, due to which the police officer who
is charged with such a bigamy case is not empowered to arrest
the accused and conduct any kind of investigation into the case
unless the court grants permission for such functions of the
police.

Here, it is worth considering that the bigamy case is related to

the institution of marriage and, therefore, Section 198 of the
CrPC shall be followed. According to this provision, the Court is
also not authorised to take cognizance of any offence
mentioned under Chapter XX of the IPC, i.e., those offences
relating to marriage. Thus, in cases under Section 494, which is
included in Chapter XX of the IPC, no court shall take cognizance
of the offence of bigamy. But there are two exceptions to this
rule, as stated in Section 198 of the CrPC. Those are:

• When a victim of bigamy lodges a complaint.

• When the police officer in charge filed a charge sheet.

In either of the above cases, the court can take cognizance of
the offence even if it is a marriage-related offence. In the case
of Ushaben v. Kishorbhai Chunilal Talpada and Ors. (2012), the
Supreme Court held that, if a complainant alleges the
commission of the offence under both Section 494 and 498A of
the IPC, the court can take cognizance of that mentioned in a
police report by virtue of Section 155(4) of the CrPC.

To learn about Section 198 of the IPC in detail, click here.

Bailable

Commonly, almost all non-cognizable offences are bailable, just

like in the case of Section 494 of the IPC. Hence, the accused of
bigamy can receive bail from a court as a matter of right.
However, one has to submit bail bonds, and other requirements
to avail of bail must be fulfilled to obtain bail.

Compoundable

The offence under Section 494 of the IPC is compoundable.

According to Section 320 of the CrPC, the accused and his or her
spouse can compound and settle the disputed matter.
Furthermore, to enforce the settlement made by the parties to
the suit, the permission of the court is mandatory.

Triable by the magistrate of first class

The First Schedule of the CrPC stipulates that the offence under
Section 494 of the IPC shall be triable by the magistrate of the
first class, who is eligible to pass a decree that punishes the
convict for up to three years.

State Amendment in Andhra Pradesh state

Through the Code of Criminal Procedure (Andhra Pradesh State

Amendment) Act, 1992, the state of Andhra Pradesh altered the
nature of the offence of marrying again during the lifetime of a
spouse to cognisable, non-bailable and non-compoundable,
which applies only to the extent of Andhra Pradesh territories.
This conveys that the government of Andhra Pradesh felt that
the gravity of the crime’s consequences in the state was so
horrible. Thus, the police can arrest the accused, register the
case, and start investigating without the court’s permission.
Also, the accused cannot obtain bail as a matter of right, and
compounding the case is not allowed.

It is appreciated that the then Andhra Pradesh government

rightly made an amendment to the First Schedule of the CrPC
and made the serious offence of bigamy cognisable so that the
police officer in charge of a particular case can immediately take
action without any warrant if the case is against the accused. In
accordance with this State amendment, the Sub-Inspector of
Police, in D. Vijayalakshmi v. D. Sanjeeva Reddy (2001), took
cognizance of a bigamy case by filing a charge sheet after
knowing that the initial investigation proved the allegations of
the complainant. The Andhra Pradesh High Court held that the
said police officer was empowered to investigate without any
warrant and did not violate any law because the President
approved the said state amendment and, further, decided that
State law would prevail over the central law in respect of the
present case concerned since this subject is on the Concurrent
list. However, the Court cautioned that Section 198 of the IPC is
intact and unamended and, therefore, should be followed in
cases related to the institution of marriage.

Punishment under Section 494 IPC

Marrying for the second time during the subsistence of the first
marriage with the spouse living is a punishable offence under
Section 494 of the IPC. In this provision, the maximum
punishment for such an offence is prescribed, that is,
imprisonment for a period of seven years. The Penal Code did
not mention any minimum punishment for the convict. But it is
for the appropriate court to decide upon this matter by
examining the facts and circumstances of each case.
Additionally, the Court will decide upon the merits of the case
whether to order rigorous imprisonment or simple
imprisonment.

Not only is the offender jailed, but he is also liable to pay a fine.
However, the minimum and maximum fines payable are not
stipulated by the Code. It differs from case to case.

Scope of the punishment

Though the Indian Penal Code is a secular and general code that
applies to every Indian irrespective of the religion to which the
accused belongs, Section 494 of the IPC does not apply to male
members of the Muslim community. This exclusion is due to the
provision in Muslim marriage laws, including the Muslim
Personal Law (Shariat) Application Act, 1937, that permits a
Muslim man to marry another woman even when his wife is alive
and is not divorced. Mohammedan laws allow Muslim men to
marry up to four women under certain conditions. (To know
more about the legality of polygamy in India, click here). Except
for Muslim men, the provisions of Section 494 of the IPC apply
to every person in India, including Muslim women. Therefore, a
Muslim man can escape punishment even if he practices
bigamy.
Nevertheless, if a four-time married Muslim man marries again
for the fifth time during the subsistence of his stated four
marriages, then it shall be considered that he committed the
crime of bigamy, and Section 494 of the IPC applies to him. In
the case of Dr. Surajmani Stella Kujur v. Durga Charan Hansdah
and Anr. (2001), the Supreme Court ruled that the fifth marriage
of a Muslim man would be deemed void because Muslim
personal laws allow a Muslim man to have only four wives at a
time, not more than four. Further, the Court held that the
Muslim man who married for the fifth time would be punished
under Section 494 of the IPC.

Evidence by the prosecution

Firstly, the prosecution shall establish all the essential elements

of the commission of bigamy, which are discussed above, before
the criminal courts to punish the wrongdoer. Every essential
element should be backed up with some evidence to prove it.
The belief in being married and its subsistence among the
couple are not enough. Even if society assumes and treats them
as husband and wife, the relationship between them cannot be
regarded as a valid marriage by the court. Rather, if the
performance of the marriage is made valid and the same has
been proved with evidence, then the court can regard it as a
valid marriage.

Initially, the courts were strict in imposing the prosecution’s

burden of proving the ceremonies that were performed while
solemnizing the marriage. However, the courts have been
changing their position in this respect. A similar position was
taken by the Bombay High Court in a leading authority, Smt.
Indu Bhagya Natekar v. Bhagya Pandurang Natekar (1992),
where it was held that the courts should adopt a practical
approach while examining the evidence, either oral, direct, or
circumstantial, that proves the charge of bigamy. And the
evidence does not always necessarily prove the ceremonies for
solemnizing the second marriage. From this, we can conclude
that for proving the performance of marriage, it is not strictly
mandatory to prove all requisite religious ceremonies, but the
submission of any other reliable evidence that establishes the
offence of bigamy by the accused is sufficient to punish him.

The major drawback concerning the submission of evidence by

the prosecution is that neither the Supreme Court nor the High
Courts laid down guidelines or modes of proof in the bigamy
cases.

How to defend against a charge under Section 494 IPC

The following defences can be used by the accused, who was

innocent in his or her acts, to defend themselves legitimately
and evade punishment under Section 494 of the IPC.

No subsistence of the first marriage

The subsistence of a marriage means the marriage is continuing

without being dissolved. The concept of divorce, or dissolution
of marriage, is part of every personal law in India. In bigamy, a
person who marries again shall be punished for his commission,
which causes mental trauma to the first spouse. On the other
hand, if the first marriage is not subsisting and was dissolved
in whichever manner, then the parties are said to have moved
on and attained the freedom to marry again.

A marriage shall be dissolved only by the decree of the court,

not otherwise. Thus, the court of competent jurisdiction shall
pass a declaration that the first marriage is void, and only then
is that marriage considered to not be subsisting.

To learn about the concept of dissolution of marriage and its

methods under various personal laws, click here and here.

In the case of parties being members of the Muslim community,

to decide whether a first marriage is subsisting or not,
Mohammedan law should be referred to. This Muslim personal
law allows a Muslim girl who was married to a Mulsim male
before her puberty by her father or grandfather to do the
following regarding the subsistence of the marriage.

• To ratify the marriage if the girl belongs to Shia; or

• To cancel the marriage if the girl belongs to Sunni.

Desertion by the first spouse

Suppose the first spouse has continually absent or deserted the

accused for more than seven years, and this information is
conveyed to the second spouse before marriage. In that case,
the performance of the second marriage, even if the first
marriage is subsisting, shall not be construed as an offence of
bigamy.

If the accused wants to avail this defence, he or she has a burden

of proving things, namely:

• Either of the parties to the first marriage disappeared

continuously for seven years or more. That is, one
spouse neither physically met the other nor
communicated through any mode of
telecommunications.

• Such a spouse who was absent for so many years is alive

after those seven years. If he or she is dead, then this
defence cannot be pleaded.

• The accused should inform the other party of this fact

about the second marriage. If he or she has no
knowledge of this fact because of the accused’s
concealment, then this defence would not work.
If all the above is proved by the accused during trial, he or she
shall not be guilty of the crime of bigamy.

Either the first or second marriage is invalid

If the first marriage is not valid, then the second marriage shall
not be void and would not amount to the offence of bigamy, and
vice versa. By proving either marriage invalid, the accused can
escape conviction under Section 494 of the IPC.
Let us take the first scenario where the first marriage is void
because of the non-fulfilment of either of the essential elements
mentioned in the personal laws to which the parties are subject.
In this case, if the first marriage is proved to be invalid, then
the parties to that marriage are not legally married, and, hence,
the law permits them to marry again. In M.M. Malhotra v. Union
of India and Ors. (2006), the Supreme Court decided that a
subsequent marriage by the husband during the subsistence of
the first marriage would not make him guilty of the offence of
bigamy if the said first marriage is proved to be void. In this
way, the accused can escape the charges under Section 494 of
the IPC by defending himself by proving that one or more of the
essential elements of a valid marriage were not fulfilled during
the performance of the first marriage.

In the second scenario, where the second marriage is invalid,

there will be no question of bigamy because an invalid marriage
is no marriage according to Indian laws. If the accused wants to
escape the charges of bigamy by taking this defence, he or she
can prove that the second marriage is void due to non-
conformity to the legal and customary requirements, which are
essential to their caste or religion. Once the accused can prove
this in a competent court with sufficient evidence, he can safely
go unpunished. In this regard, the well-known decision given by
the Supreme Court of India in the case of Bhaurao Shankar
Lokhande and Anr. v. State of Maharashtra and Anr. (1965). In
this case, the second marriage was performed without duly
following the religious ceremonies as per the provisions of the
Hindu Marriage Act, 1955, which was proved by the accused as
a defence. The Supreme Court stated that even if society and the
couple themselves believe that they are husband and wife, the
Court still considers them a married couple only when their
marriage fulfils all conditions under the Hindu Marriage Act,
which was not done in the present case. Hence, the court
acquitted the accused of the bigamy charges.

Here, we can understand that great importance is given to the

conduct of ceremonies to establish the second marriage. It is
well known that two people, despite intending to live as a
couple, who did not perform the essential ceremonies, were not
regarded as legally wedded husband and wife. Similarly, if the
accused of bigamy omitted to conduct essential ceremonies
while performing a bigamous marriage, either deliberately or
inadvertently, he or she is not liable for the offence of bigamy.
For instance, a husband left his wife and started cohabiting with
another woman. Even if their live-in relationship is prolonged
for a significant time and obtains the status of ‘relationship in
the nature of marriage’, it still cannot be considered a bigamous
marriage due to the non-conformity of the condition of
performing essential ceremonies.

In addition to this, the confession of the accused regarding his

second marriage shall not be taken as evidence to prove the case
of bigamy. This was also ruled by the Supreme Court in the case
of Kanwal Ram and Ors. v. the Himachal Pradesh
Administration (1966). Also, the registration of the second
marriage is not solemnisation of marriage, and, hence, the
submission of the registration certificate pricing such a
marriage is also not sound evidence to prove the validity of the
second marriage. A similar decision was delivered by the
Calcutta High Court in Sm. Baby Kar Roy v. Ram Rati Devi and
Anr. (1975).

Immunity to Muslim men

As already stated, men from the Muslim community have

special immunity from prosecution under Section 494 of the
IPC, for up to four marriages, provided all conditions mentioned
in the Mohammedan law have been followed. Thus, a Muslim
man, who married again during the subsistence of his previous
marriage or three marriages, can take the provisions of
Mohammedan law as a defence to escape the punishment
mentioned in Section 494 of the IPC.

It is very important to consider that there is an essential

condition to submitting the said defence in a court of law. That
condition is that the accused Muslim male should marry again
only according to Mohammedan law and not under other
personal laws. The relevant authority in this regard is the
decision of the Allahabad High Court in the case Anwar Ahmad
v, State of Uttar Pradesh and Anr. (1991). In this case, the
accused, who belongs to the Muslim religion, married for the
second time under the Special Marriage Act, 1954. Furthermore,
in the affidavit concerning the second marriage, he also
concealed the fact of his first marriage. The accused pleaded
that his personal laws allowed him to marry a second time. In
this case, the Allahabad High Court decided that the accused’s
second marriage amounts to bigamy punishable under Section
494 of the IPC, not because the Mohammedan law will not allow
multiple marriages but because he did not fulfil the condition
of marrying under his personal law.

Second marriage after the grant of ex parte divorce

This defence can very well be explained with the help of case
law, i.e., Krishna Gopal Divedi v. Prabha Divedi (2002). In this
case, the accused contracted a second marriage after obtaining
an ex parte decree of divorce from the competent court.
Unexpectedly, after the second marriage, the first wife
approached the court to set aside the stated decree and
accomplished the same. Because the first marriage is not
dissolved through a divorce decree, the first wife files a
complaint against the accused under Section 494 of the IPC.

The Supreme Court held that the performance of a second

marriage by the accused after attaining the ex parte decree is
not an offence under Section 494 of the IPC because, during
such a period, the first marriage is not subsisting. The Court
cited the possibility that the case may be one of adultery if
proven, but not bigamy, and termed the criminal proceedings
against the innocent “an exercise of futility”.
Muslim women marrying during Iddat

As per Mohammedan law, Iddat (or Iddah) is a duration, that

occurs after the death of a Muslim woman’s husband or after
divorce between them. During this period of three months, such
Muslim women are prohibited from contracting a marriage with
another man. Suppose a divorced woman married another man
by going against the concept of Iddat; such a marriage is termed
void according to Mohammedan law. Nevertheless, Section 464
of the IPC is not applicable in this case, and such women are not
punishable for bigamy.

In Abdul Gani and Ors. v. Azizul Haq (1911), a Muslim woman is

charged under Section 494 of the IPC for marrying another man
during her Iddat. She rightly defended herself, saying that her
second marriage was considered void because she violated the
Muslim doctrine of Iddat, which has no link with the Indian
Penal Code. The Calcutta High Court approved her defence and
held that a re-marriage by a Muslim woman during the period of
Iddat is just a civil wrong that results in the nullity of the
marriage but not a criminal offence of bigamy under the Indian
Penal Code.

To learn about the concept of Iddat under Muslim personal law,

click here.

Bad defences

The following may seem like defences to a layman, but the court
would not regard them as defences.
Good faith and mistake of law are not defences for Section
494 IPC

In the case of Narantakath Avullah v. Parakkal Mammu And

Ors. (1922), a woman is accused of committing the crime of
bigamy. In this case, the accused took a plea of good faith as
well as the absence of criminal intent. Because the lawyers to
whom she consulted affirmed that she was entitled to remarry
on the ground that her first husband was an apostate because
of becoming an Ahmadee. The Madras High Court
highlighted Section 79 of the IPC, which exempts those
offenders who committed a crime by mistake of fact, not
because of a mistake of law, in good faith, and discarded the
pleas of good faith and mistake of law that were taken by the
accused.

Permission of the first spouse for the second marriage is no

defence for Section 494 IPC

Let us take a case where the first spouse of the accused allowed
her husband to marry again and keep the second spouse. The
first spouse’s permission is no exception to the application of
Section 494 of the IPC, even if such permission is free and
voluntary. Thus, permission given by the wife is not a defence
for the accusation of the commission of a crime under Section
494 of the IPC. In a similar case, Smt. Santosh Kumari v. Surjit
Singh (1990), the accused pleaded that his legally recognised
first wife consented to his second marriage, which was
contracted to fulfil his sexual desires that were not fulfilled by
his first wife because of her physical weakness. The Himachal
Pradesh High Court, in this case, affirmed that the offender
violated Section 5(i) of the Hindu Marriage Act, 1955.

Important case laws on Section 494 IPC

Sarla Mudgal v. Union Of India and Ors. (1995)

Smt. Sarla Mudgal, President, Kalyani and Ors. v. Union of India

and Ors. (1995) is a landmark judgement both in the case of
bigamy laws as well as the Uniform Civil Code (UCC). The
Supreme Court answered the controversial question of whether
a Hindu married man can solemnize a second marriage during
the persistence of his first marriage after converting to the
Muslim religion, which allows bigamous marriage. The Court
outrightly held the second marriage void and convicted the
accused under Section 494 of the IPC due to the presence of all
essential elements to constitute the case of bigamy.

Lily Thomas v. Union of India and Ors. (2000)

In the case of Lily Thomas v. Union of India and Ors. (2000), the
Hindu married man had converted to the Muslim religion solely
for marrying for the second time, not because he had genuine
faith in that religion. This was established by providing
evidence that the accused did not perform any Muslim religious
ceremonies or change his name.
The court decided upon the merits of the case that the accused
is guilty of bigamy, although he converted to Islam religion,
under Section 17 of the Hindu Marriage Act, 1955, read with
Section 494 of the IPC.

The Supreme Court finally quoted: “Freedom of religion is the

core of our culture. Even the slightest deviation shakes the social
fiber.”