@ Aishwarya,
Bigamy
Section 494, IPC defines Bigamy as "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 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 with in his or her knowledge.
Section 495, IPC says whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either descripttion for a term which may extend to ten years, and shall also be liable to fine.
Section 497 IPC says whoever has s*xual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such s*xual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either descripttion for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.
Section 498 IPC says: whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either descripttion for a term which may extend to two years, or with fine, or with both.
It has been seen since ages that people convert themselves to other religion without any real change in belief merely to avoid an earlier marriage and enter into a second one, is whether the marriage after conversion should be considered void and the person liable for bigamy.
In various judgments, the Hon'ble Apex Court examined the provisions of the Hindu Marriage Act, 1955 (HMA) and Section 494 of the IPC that makes bigamy an offence. According to Section 5 of the Act, one of the conditions for marriage between two Hindus is that neither party should have a living spouse at the time of marriage. If either party does indeed have a spouse living at the time of marriage, that marriage can be declared null and void under Section 11 of the Act. Section 17 further declares that a marriage between two Hindus is void if either has a husband or wife living and that the provisions of Section 494 of the IPC punishing bigamy would be applicable.
Section 494 of the IPC punishes bigamy and lays down that a person who marries whilst having a husband or wife living (and the marriage is void by reason of having taken place during the life of such husband or wife), is punishable with seven years' imprisonment and a fine. Complaints of bigamy can only be made by the aggrieved person, i.e. by the spouse. In the wife's case, the complaint can be made by her father, mother or brother.
The court declared that if a Hindu wife complained that her husband had converted and remarried, the offence of bigamy would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. According to the Act, conversion of one of the spouses does not automatically dissolve a marriage solemnized under Hindu law. The persons continue to be 'husband and wife', despite the conversion of one of them. Conversion is only grounds for divorce or judicial separation.
Therefore, unless a decree of divorce is obtained the 'marital bond' persists. A second marriage, even after conversion, would be void under Section 11 of the Hindu Marriage Act. The marriage would also be void under Section 17 of the Act, which makes bigamy punishable by making Section 494 of the IPC applicable. The court declared that as long as the first marriage subsists, according to the Hindu Marriage Act, a second marriage is not permissible even under another personal law. Even after conversion to Islam, if a second marriage is performed during the subsistence of the first one, the person is held liable for prosecution for bigamy under Section 494 of the IPC. Prosecution under Section 494 of the IPC with respect to a second marriage under Muslim law can be avoided only if the first marriage too was under Muslim law.
The argument that there should be no prosecution for bigamy of persons who had solemnized their second marriage before the passing of the judgment, as this would violate Article 20 (1) of the Constitution, was rejected. Article 20 (1) declares that a person cannot be convicted for an offence that was not a violation of law in force at the time of the commission of the act. The court declared that the judgment had not made second marriage by a person converted to Islam an offence, but had merely interpreted the existing law that was in force and so was not violative of Article 20 (1).
The contention that prosecuting a person contracting a second marriage after conversion was a violation of the right to freely profess and practice religion was also rejected. The court observed that freedom to practice religion guaranteed under Article 25 is a freedom that does not encroach upon the freedom and rights of another. The argument that making a Hindu who converts to Islam and solemnizes a second marriage liable for bigamy is against Islam was also dismissed. The court observed that it would be doing an injustice to Islamic law to urge that a convert be entitled to practice bigamy notwithstanding the continuance of his marriage under the law to which he belonged prior to conversion.
The various muslim organization argued that the interpretation given by the court would render the status of the second wife to that of a concubine, and children born out of that marriage as illegitimate. The court took the view that the issue before it was ascertaining the criminal liability of a person who undergoes a second marriage after conversion under Section 17 of the Hindi Marriage Act, read with Section 494 of the IPC. It observed that the legitimacy of the second wife and children was not an issue that had arisen in the case, and hence no ruling was necessary on the matter. The court also clarified that the judges had merely expressed their views in the 1995 Sarla Mudgal case, and that no directions had been issued for codification of a common civil code.
The judgment reported as Lily Thomas versus Union of India, 2000 (6) SCC 224 unequivocally declares that if the first marriage was under any personal law where there is a prohibition on contracting a second marriage during the lifetime of the spouse, as in Hindu or Christian law, then a second marriage performed under Muslim law would make the person liable for prosecution for bigamy.
Women will still enjoy liniency from courts. Thanks to the empowerment feminist movement, such as the one taken up by you. LOL...
WKB
