Anjuru Chandra Sekhar (Advocate ) 22 May 2012

Sec. 494 ipc is not about bigamy

"These decisions recognize the principle that a marriage is no marriage at all unless it satisfies the requirements of the law of a valid marriage by which the parties are governed; and if it is not a valid marriage by reason of the fact that the first accused had married the 7th accused who is somebody else's wife and with whom he could not enter into a lawful marriage, it is no marriage at all, although, as pointed out by the learned Judges of the Calcutta High Court in Swapna Mukherjee v. Basanta Ranjan it may be an adulterous union. Hence, in the instant case, as it is not established that the 7 the accused has been divorced by D.W. 4 and that the marriage between them had been dissolved, any marriage ceremony entered into by the first accused with the 7th accused is no marriage in the eye of law; and it cannot, therefore, be said that the first accused had 'married' the 7th accused within the meaning of S. 494, and hence, the offence of bigamy under S. 494, I.P.C., cannot be held to have been committed by reason of the socalled marriage."

Madras High Court

C.G. Rangabashyam vs Ranjani Murugan And Ors. on 25 February, 1980

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Sec.494 of IPC says:

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 descripttion 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, inform 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.

Exception is understandable in that if a person whose marriage with such husband or wife means the husband and wife of first marriage is declared void by a competent, this section is not applicable to such person. Second exception is, if a person contracts a marriage during life of a former husband or wife, who at the time of marriage is continually absent from such person for a period of seven years or not even heard of being alive, and provided person contracting subsequent marriage should not hide about fact relating to earlier marriage with the person he/she is marrying in subsequent marriage.

To that extent law is very clear. However, the problem is relating to interpretation of the main section viz.,

Here, interestingly, the HC in the above quoted judgment had acquitted the offender based on a finding that, the marriage between Accused and Complainant has not been divorced and hence, during the subsistence of their marriage if the Accused marries the co-accused, such marriage itself is void in the eyes of law because the marriage took place during the subsistence of marital relationship with earlier spouse, and hence the accused has not married the co-accused at all, and for this reason he is not liable under Sec.494 of IPC. The HC relied on similar judgments of Calcutta HC and AP HC.

In Satyanarayana v. State of A.P. (1962 Mad LJ Cri 138) : (1962) 27 Cri LJ 644 where the learned Judge has observed that :-

"This object of the person committing bigamy and which is sought to be defeated by S. 494, Penal Code, by declaring it an offence, is not achieved if the second marriage is one which is no marriage at all in the eye of law, or which is otherwise void, in which case it cannot be said that there was a valid marriage, and the meaning of the word 'marries' in S. 494 of the Penal Code is not satisfied. There may be many instances where a second marriage may be no marriage at all and in which case there could be no question of bigamy, as, for example, where the parties are so closely related that a marriage between them is void according to their personal laws, or where the person sought to be taken in second marriage is himself or herself not eligible to be taken in marriage; and there may be many other instances, and it is unnecessary to notice all of them in this connection, I am inclined to agree with Mr. Rama Rao when he contends that the second marriage should be something which could be regarded as a marriage in the sense in which marriages are understood and if it is no marriage at all and if it cannot have any validity in law, apart from the fact that by reason of its being a bigamous marriage it would be declared void it cannot be said that the offence of bigamy had been committed."

Here what is interesting to note is that in Sec.494, the word bigamy is not mentioned at all. It only says, 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 descripttion for a term which may extend to seven years, and shall also be liable to fine...... which means that anyone having a husband or wife living marries in any case in which such marriage is void by reason of taking place during the life of such husband or wife, shall be punished....here the fact that a subsequent marriage is void by virtue of already having a wife or husband is not an impediment to punish the offender. It only says, such marriage is void by reason of a person already having a spouse, it does not say – as the marriage is void because of the reason of a spouse already existing such marriage is not considered marriage at all hence bigamy has not been committed and hence the accused can be acquitted.

The fact that any marriage being void for any reason is not an impediment to punish the offender according to the main section. Whether a marriage is valid or not, is a point to be considered if it is a section relating to “bigamy”. That is, the section is presumed to punish those people involved in “bigamy” and “bigamy” means one who has two wives or two husbands. And so if one has second husband or second wife, the requirement of law is that the marriage with second husband or second wife must not be void and valid in the eyes of law.

This is entirely true, if Sec.494 is a bigamy law, but the fact is Sec.494 is not a law of bigamy, it has nothing to do with whether a marriage is valid or not or void or not. In fact the section itself says clearly, “marries in any case in which such marriage is void by reason of its taking place during life of such husband or wife”…..which means that the section itself recognizes such marriage as a void marriage but the fact that it is void marriage is not a bar to avoid punishment to the offender. If it is wrongly presumed as a bigamy law, then a judge comes to the conclusion that a certain marriage is not valid marriage or it is a void marriage hence the second marriage is deemed to have not taken place, for that reason, Sec.494 is not applicable. However, nowhere in Sec.494 it is mentioned that it is a bigamy law.

If a marriage being a void marriage does not preclude liability on the accused, then other reasons adduced for a marriage being void also does not preclude liability on the accused.

This also means that law accords sanction to Court to punish the accused while simultaneously declaring that the accused is participating in a void marriage and the fact that is is a void marriage is not a bar to punish him. Hence the fact of solemnization of subsequent marriage and the relevance of evidence relating to solemnization of subsequent marriage becomes irrelevant because the law does not demand that it be a valid marriage in order that the offender be punished. Law itself says, it is void marriage even then, the accused is punishable.

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21 Replies

Anjuru Chandra Sekhar (Advocate ) 22 May 2012

In simple words, the correct interpretation of Sec.494 IPC is this:

Sec.494 does not presume that subseqent marriage be a valid marriage in order that it charges an offender with the crime of bigamy. Instead it says, though the subsequent marriage is void in the eyes of law by virtue of first husband or first wife being alive (or may also be interpreted as "by virtue of not been divorced with first wife or first husband"), the offender is punishable for marrying another person in a subsequent marriage. When the law itself clearly declares a certain marriage is void for such and such reason, why people fight in courts being forced to adduce evidences relating to solemnization of second marriage in courts to prove it a valid marriage in order to prove it a bigamy is not understandable.

(Guest)

You will not feel.

Kishtaiah (Advocate) 22 May 2012

Chandrasekhar sir, your interpretation is fine and educative. However, I am of the view that in order to hold the offender punishable u/s494 ipc, proving the alleged second marriage, iimmaterial of it being valid, is necessary and hence aducing evidence of solemnizing the second marriage is essential.

Anjuru Chandra Sekhar (Advocate ) 23 May 2012

@Kistaiah. The point is, proving the second marriage is essential, but proving the solemnization is not necessary. That fact of marriage taking place, somehow or the other, is essential to be proved, in other words, the accused had indulged himself in a second marriage immaterial whether it is solemnized or not. The point, whether a marriage is valid is essential to prove bigamy. The point I am trying to make is Sec.494 is not a bigamy law. The law relating to Sec.494 itself says, the subsequent marriage is void for the reason that the accused is marrying when the spouse is alive, even then for attempting to marry second time or indulging in second marriage he is punishable. So why prove a marriage that is already declared void by law a valid marriage unless the Court has wrong notion that Sec.494 is offense of bigamy? To say that unless solemnization is proved the marriage is not deemed a valid marriage and unless the marriage is valid, it cannot be construed as bigamy and unless it is bigamy one cannot be punished under Sec.494 is totally flawed interpretation of law. When the law itself is saying it is void marriage for such and such reason, even then the accused is punishable, you need not prove it is valid marriage unless one have a wrong notion that Sec.494 relates to bigamy. That is why proving solemnization is unnecessary, but proving that the accused attempted or indulged in second marriage is needed.

Anjuru Chandra Sekhar (Advocate ) 23 May 2012

The next decision relied upon by the learned counsel for the petitioner is of a Bench of the Calcutta High Court in Swapna Mukherjee v. Basanta Ranjan where it has been held that :-

"In order that a person may be convicted of an offence of bigamy, under S. 494, the second marriage must be a form of marriage, recognised by law. Otherwise it would be simply an adulterous union and it will not be hit by the provisions of S. 494."

In that case a person who was a born Christian and who was having a Christian wife living married once again a Hindu woman according to the Hindu rites and it has been held that the second marriage between the Christian and the Hindu woman was a void marriage not because of the existence of the Christian wife of the man but because of the fact that there cannot be a valid form of marriage between an Indian Christian and a Hindu woman celebrated according to the Hindu rites. It has also been held that as namely, that the second marriage must be void by reason of its taking place during the lifetime of the husband or the wife of the first marriage, is not satisfied the Christian husband was entitled to be acquitted of the charge of bigamy under S. 494 of the Indian Penal Code.

Madras High Court

C.G. Rangabashyam vs Ranjani Murugan And Ors. on 25 February, 1980

Here also one can see, Calcutta HC made an observation that "In order that a person may be convicted of an offence of bigamy, under S. 494, the second marriage must be a form of marriage, recognised by law. Otherwise it would be simply an adulterous union and it will not be hit by the provisions of S. 494."

And in the referred case, Calcutta HC declared a marriage between Christian man (who already has a Christian wife living) and a Hindu woman void for the reason that a Christian man marrying a Hindu woman by Customary Hindu rites is not valid marriage in the eyes of law. In its opinion only a Hindu man can marry a Hindu woman by Customary Hindu rites. So, if at all such marriage had taken place which is not valid in the eyes of law and later if the man who indulged in second marriage had lived conjugal life with the woman of subsequent marriage, then it can only be called an "adulterous union" and it will not be hit by provisions of S.494.

The court arrived at this understanding because it wrongly perceives S.494 as a law of bigamy. Why a marriage that is already declared void by law itself, be again proved a valid marriage unless court has an erroneous view that S.494 is a law of bigamy? In my view, the HC should not have acquitted the Christian man who indulged in the second marriage. Mere indulgence in a subsequent marriage is enough to punish the accused under S.494.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 23 May 2012

very nice

Anjuru Chandra Sekhar (Advocate ) 23 May 2012

@KIshtaiah garu. Let me tell you why this confusion is there in the minds of judges.

S.17 of the The Hindu Marriage Act, 1955 says:

17. Punishment of bigamy. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living ; and the provisions of sections 494 and 495 of the Indian Penal (45 of 1860) Code shall apply accordingly.

Here the word bigamy is used. But in S.494 of IPC word bigamy is not used. The courts are clubbing both S.17 of HMA and S.494 of IPC and arriving at the erroneous view that S.494 relates to bigamy. However, as one can see, here also the law declares that the marriage solemnized is void if at the date of such marriage either party has a husband or wife living. But the fact that it is a void marriage is not a bar to punish the offender. So it is perfectly in tune with S.494 IPC. And also important element of this law is that though it identifies such marriage as a void marriage, it is still considered bigamy.

The difference between what court's perception and the law as it stands is - court says only if it is valid marriage then only it amounts to bigamy, and law says, even if it is void marriage, the subsequent marriage amounts to bigamy. That is why I am saying the fact of validity of marriage is irrelevant for S.494 IPC or S.17 of HMA. And why we require to submit evidences to show solemnization had taken place? We require to submit evidences to show solemnization had taken place in order to prove tha it is a valid marriage so that one can be held liable for bigamy. But when the fact of validity of marriage itself is irrelevant, what is the point in submitting evidences to prove solemnization?

Hope you got the point.

Anjuru Chandra Sekhar (Advocate ) 23 May 2012

@Nadeem Qureshi. Thanks. Hope this will reduce work load/burden on courts and Advocates breaking heads to prove solemnization.

Anjuru Chandra Sekhar (Advocate ) 16 June 2012

In Gopal Lal Vs. State of Rajasthan (1979) 2 SCC 170 this Court has ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed.

A.Subash Babu vs State Of A.P.& Anr on 21 July, 2011

Bench: J.M. Panchal, H.L. Gokhale

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1428 OF 2011

(Guest)

Then will a matrimonial ad by married person have anything to do with bigamy? Is it indulging in second marriage?

Anjuru Chandra Sekhar (Advocate ) 17 June 2012

It is a very good question. The difference between “attempt to marry” and “actually marrying” is like the difference between “attempt to murder” and “murder”. It is the responsibility of State to take cognizance of attempt to murder on its own but attempt to marry or indulgence in bigamy is not a case where State can take cognizance on its own according to Cr.PC S.198, it shall be taken cognizance only complaint made by the aggrieved person. This is because attempt to murder is a concern for State, it has a duty to ask the citizen attempting to murder, “why do you want to commit that crime” and book him for that offense irrespective of whether the victim/likely victim has any complaint or not. Here in S.494 or in matrimonial offences, it is the victim who has to lodge complaint and make the court take cognizance of the offense.

You might have seen the advt. during IPL matches, I don’t remember the name of mobile company but remember the Ad. Wherein a couple appears resting in a swimming pool, the girl is told by the boy, “I am sorry I can be a good friend to you but I cannot marry you”. Girl wearing a bikini says, “Never mind. I will find a match for you in matrimonial columns”.

She does not take offense to it. And so whether the party takes offense to it or not is also a issue here. That is why, the role of State is limited and it cannot legally proceed against the perpetrator of crime unless the concerned person against whom crime is committed is “offended” by it and lodges a complaint. In this connection it is a very wise question to ask : WHETHER A PARTY TO MARRIAGE TAKES OFFENSE TO IT IF HIS/HER SPOUSE ADVERTISES FOR A NEW MATCH IN A NEWSPAPER. Yes many people may take offense to it. If attempt to marry is not part of statute book it is the problem with law but you cannot say it does not “offend” anyone because such “offense” do not find place in statute book.

So the question of jurisprudence is not whether the offense finds place in statute book or not, but whether a particular act is capable of offending someone and whether taking offense to such act is reasonable or not. Because some people take offense to everything because they are easily hurt by every action of others. Suppose one says, “I am offended because you did not stand up in reverence when I entered room, it lowered my dignity”, you cannot treat it as an offense if it is your right to sit and not stand up when that person enters room. So when a person takes offense to certain act of others it should be reasonable and justifiable.

As we are discussing it in the context of S.494 let us come to that aspect.

In the beginning of sentence of S.494 we find : Whoever, having a husband or wife living, marries…. the word “marries” is very important word because it denotes that marriage process should have been completed. If he “marries” he is punishable if he does not “marry” he is not punishable. So what constitutes “marriage” is question that naturally comes to the mind. So the logical mind says a series of rituals should have been completed in order to say a person “married”. What are they? We know. Saptapadi, Paanigrahanam…etc.etc. according to Hindu marriage act. So the issue became here one beyond the preponderance of probabilities and is subjected to rigors of strict proof.

I say that is not logical. Whether a person has “mens rea” or not is the point here, not whether actually the series of activities relating to rituals are completed or not. What offends the spouse is not only the rituals but also the “mens rea” in the offender. So whether he performs a marriage under Hindu law or marriage under Christian law or goes for registered marriage under Special marriage Act is of nobody’s case here. It is ridiculous Court saying to the victim, as Saptapadi had not been performed your husband had not offended you.

So I believe even the act of going for a matrimonial advertisement for a bride constitutes a crime under S.494 because he had shown his motive to marry second time. It should find place in statute book as an offense of “attempt to marriage”, like there is “attempt to murder” and get lesser punishment than it is for “indulging in second marriage by completing the formality of marriage”.