If the marriage took place after the coming into force of the Hindu Marriage Act 1955. S. 5 of the aforesaid Act inter alia provides that a marriage may be solemnized between two Hindus if neither party has a spouse living at the time of the marriage. S. 11 thereof lays down that any marriage solemnized after the coming into force of the Act shall be null and void and S. 17 emphasizes that any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party has a husband or wife living and applies the provisions of S. 494 and S. 495 of the Indian Penal Code. The conjoint effect of the aforesaid sections is that if a marriage is solemnized after the commencement of the Hindu Marriage Act between persons either of whom has a spouse living at the time of the marriage the marriage is void and the provisions of S. 494 and S. 495 are attracted to marriages between Hindus also.
S. 494 Indian Penal Code is in the following terms:
“494. 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.”
This offence, which is known in English law as "bigamy", is directed against the second marriage. The second marriage, therefore, must be a legally valid marriage so as to come within the ‘mischief’ of S. 494 I. P. C.. In order to appreciate whether the second marriage is void under the law, since the parties are admittedly Hindus, we have to refer to S. 17 of the Hindu Marriage Act, 1955, which is as follows:
“17. 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 provisions of S. 494 and S. 495 IPC (Act 45 of I860) shall apply accordingly.
S. 17 pointedly refers to solemnization of marriage after the commencement of the Act. The Prosecution side in instance case, therefore, is under an obligation to satisfactorily establish by evidence that the second marriage with second wife has been solemnized in accordance with law or custom which is applicable to the parties.
The essential "elements" needed to be established to make a person punishable under S. 494 IPC, are as follows:
(1) There must be a wife living.
(2) There must be another marriage by reason of its taking place during the life of the wife.
So while S. 17 of the Hindu Marriage Act renders a second marriage of a male Hindu during the lifetime of an existing wife void, the husband marrying for the second tune is also punishable under S. 494 IPC.
Now turning my views back on instance brief, in the instant brief it has already been noticed that at the time when the second husband married to a second wife the second wife husband was alive and there is thus no escape from the conclusion that the marriage between the second husband with his second wife was void. A thing which is void has no existence in the eye of law. Since in the eye of law the relationship of husband and wife did not exist between the second husband and second wife her subsequent marriage with second husband will attract S. 494 I. P. C.
I per se contend that unless second wife obtained a decree of nullity of marriage she had no right to marry another person and she is, therefore, liable to be, convicted of the offence under S. 494, I. P. C. The point missed by the queriest is that S. 17 of the Hindu Marriage Act does not provide that S. 494 and 495, I. P. C., will not be attracted unless a declaration as to nullity of marriage is obtained by either party to the marriage (hence he stated twice about some divorce deed in his query). According to Webster's New International Dictionary Second Edition 'wife' inter alia means a woman united to a man in a lawful wedlock. Thus if the marriage between the second husband and second wife was not lawful legally she cannot be described to be wife of the second husband.
The interpretation placed on the word 'marries' as used in S. 494, I. P. C. cannot be a guide for the interpretation of the words 'husband or wife' as used in that section that in order that an offence of bigamy can be committed, there must be at the time of the second ceremony of marriage a previous valid subsisting marriage.
The effect of S. 17 of the Hindu Marriage Act is to make S. 494 of the Penal Code applicable to Hindus and that there is nothing in the Act forbidding a prosecution for an offence punishable under S. 494 of the Code not preceded by a declaration obtained under the provisions of the Act that the second marriage is void.
Thus on the proved and admitted facts no charge for an offence under S. 494, I. P. C., could legally be framed. If an offence under S. 494, I. P. C., is made out against R1 (second wife) then her second husband could be found to be guilty of having abetted the said offence too is my view in instance facts case.
@ Ld. Sh. Assumi sahib, I hope I clarified the position as I think fit on instance brief rest a superior authority is there to state the position if any, in short – sweet – minimalist wordings J