Law for laymen – S. 494 IPC, S. 17 Hindu Marriage Act [Bigamy]

Section 494, Penal Code, 1860 (IPC S. 494)

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

The offence of bigamy or marrying again during lifetime of husband or wife is punishable under Section 494 of the Penal Code (S. 494) and under Section 17 of the Hindu Marriage Act, 1955.

The Sections reads as:

Penal Code, 1860

Section 494. Marrying again during lifetime of husband or wife. — 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 description 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.

Hindu Marriage Act, 1955

Section 17. Punishment of bigamy.—Any marriage between two Hindus (including Buddhist, Jaina or Sikh) 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 Code (45 of 1860) shall apply accordingly.

Cases

Ingredients of offence of Bigamy

For an offence of bigamy to have been committed the following ingredients are required (i) the accused must have contracted first marriage (ii) he/she must have married again (iii) the first marriage must be subsisting (that is no divorce has taken place) (iv) the first spouse must be living, Pashaura Singh v. State of Punjab, (2010) 11 SCC 749

Who can file complaint?

Only a person aggrieved by his or her spouse contracting the second marriage can file the complaint. In the case of the husband, only the husband, except where he is serving in the Armed Forces and cannot get leave to file the complaint.

In the case of the wife, she herself or her father, mother, brother, sister, son or daughter or her father’s or mother’s brother or sister, or with the leave of the Court any other person related to her by blood, marriage or adoption.

–  Section 198 Criminal Procedure Code

Proof of Bigamy

To prove the offence of Bigamy, the prosecution must prove that the second marriage was valid, S. Nagalingam v. Sivagami, (2001) 7 SCC 487.

Compoundable Offence

The offence is compoundable with the consent of the wife and permission of the court, Parameswari v. Vennila, (2000) 10 SCC 348.

Departmental Enquiry

Even if a person is acquitted in a criminal case for bigamy a departmental enquiry can be conducted against him/her, State of Karnataka v. T. Venkataramanappa, (1996) 6 SCC 455.

Limitation

There is no limitation period for taking cognizance of the offence of bigamy. [That is, it does not matter how long ago the second marriage was contracted, the criminal process can be started]. M. Saravana Porselvi v. A.R. Chandrashekar, (2008) 11 SCC 520.

Ex-parte (One sided) decree of divorce

When a person having got an ex-parte (one sided) divorce from a court marries a second time and the first wife manages to get the ex-parte divorce overturned, the person cannot be prosecuted for bigamy since at the time of the second marriage, he was divorced, Krishna Gopal Divedi v. Prabha Divedi, (2002) 10 SCC 216.

Who can be punished?

The Kerala High Court has held that Section 494 IPC does not discriminate between Hindu/ Muslim/ Christian and can be proceeded against any citizen who commits the offence of bigamy irrespective of his/her personal law, provided that ingredients of Section 494 are made out. Venugopal K. v. Union of India, 2015 SCC OnLine Ker 798.

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