13

CHAPTER II

OFFENCE OF BIGAMY UNDER INDIAN

PENAL CODE, 1860

1. Introduction
Penal law of India punishes the offence of what is known
in English Law as 'Bigamy', but that term is clearly
inapplicable to the offence here described for it assume a
second marriage necessarily illegal, but which, having regard
to the customs of the people in the orient, is not necessarily
the case. The English rule against bigamy is therefore, wholly
inapplicable to a non-Christian Asiatic of whatever persuation.
It will however, apply to Christian amongst whom monogamy
is rule and bigamy both a sin and a crime. 1 On the face of it,
Penal law of bigamy, is not discriminatory since it makes no
reference to the religion of either spouse. It would be desirable
to remove the misconception that no Muslim can ever be
punished under the Penal law, and that no Hindu could be
punished under the provisions of Penal Code, prior to the
Hindu Marriage Act, 1955. A Muslim wife marrying during the
subsistence of an earlier marriage can always be punished.
Again a Muslim who marries under the Special Marriage
Act, 1954, is liable to punishment for the offence of bigamy, if
he marries again during the subsistence of the first marriage. 2
The social stigma attached with being a second wife, the
absence of any legal status to the relationship, and the
enormous pain of being cheated in to the marriage are

1. Dr. H.S. Gours offences Relating to Marriage and Punishments in

India, 15 (1977).
2. Dr. Hari Singh Gour's, Penal Law of India, 4605, Vol. IV. 11th
Edition, 2009.
14

undoubtedly extremely depressing for a woman even though

there is no recognition given to a second wife, due to the
Judicial interpretation of existing law.
(i) Historical Perspective in India :
Though monogamy is the rule from Vedic times,
polygamy has, as an exception, existed side by side. But the
wife who was wedded first was alone the wife in the fullest
sense. One text of Manu seems to indicate that there was a
time when a second marriage was allowed to a man after the
death of his former wife. Another set of text justifies a
husband taking another wife. It was only when a wife was
barren diseased or vicious that she could be superseded and a
second marriage was valid; as also when she consented.
As a norm, the first wife had precedence over the others
and her first-born son over his half brothers. It is probable
that originally, the subsequent wives were considered as
merely a superior class of concubines. Later, in the courts of
British India, it was a settled law that a Hindu male could
without any restriction marry again while his previous
marriage subsisted without his wife's consent and
justification.
Custom, however, did prevent the second marriage
without the consent of the first wife and without making
provision for her. A custom prevalent amongst Nadars in
Udumalapeta Taluk preventing a second marriage, even if
established could not have the force of law. 3
(ii) Dictionary meaning of Bigamy :
According to different Dictionaries the meaning of
Bigamy is as under :-

3. reportmeritalproblems.blogspot.
 15

'Bigamy is a criminal offence if it is committed

knowingly'. 4
'Bigamy is the act of marrying one person while legally
married to another'. 5
'A second marriage by a person during the life time of
the partner and during the subsistence of the first marriage'. 6
(iii) Definition of Bigamy :
Bigamy as defined under Section 494, Indian Penal
Code, 1860, reads as under:-
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 acts so far as the same are within
his knowledge.

2. Scope and Applicability of Section 494 :

The law treats bigamy as an offence in order to ensure
conjugal happiness among those who belong to monogamous
communities. Thus, an offence under Section 494, Indian

4. Black's Law Dictionary, 172, Eighth Edition (Reprint) 2004.

5. Wahrton's Concise Law Dictionary, 114, Fifteenth Edition (Concise)
2009.
6. K.J. Aiyer's Judicial Dictionary, 215, Fifteenth Edition, 2011.
16

Penal Code, 1860, could only be committed by persons whose

previous marriage operated as a bar to another. So, for all
practical purposes, this section, when enacted, applied only to
Christians. Subsequent legislation, however, has altered the
position. Since the passing of the Bombay Prevention of Hindu
Bigamous Marriage Act, 1946 (as amended by Bombay Act No.
XXXVIII of 1948) and the Madras (Bombay Prevention and
Divorce) Act, 1949, Hindus in Bombay and Madras could be
punished for a contravention of this section. The Parsi
Marriage and Divorce Act, 1865 subsequently replaced by the
Parsi Marriage and Divorce Act, 1936 prohibited polygamy
amongst Parsis also and made them punishable under this
section. The Special Marriage Act, of 1872 and its amended
provisions enacted as Act XXX of 1923, brought about a
similar result, but only in respect of person whose marriages
were solemnized under that Act. 7 The Special Marriage Act,
1954, and marriages solemnized under that Act are subject to
the provisions of this section. The Hindu Marriage Act, 1955
makes monogamy the rule for all Hindus, Buddhists, Jains
and Sikhs and the provisions of this section will consequently
apply to their marriages also. 8 The provision of Section 494, is
attracted when a person marries after the commencement of
the Hindu Marriage Act, 1955, when he has a wife living. 9 To
sum up, this section now applies to all communities in India
except the Muslims.
It will be noticed that Section 494, makes no reference to
intention, knowledge, fraud or deceit, but constitute the mere
contracting of the second marriage a crime. It is them possible

7. Supra Note 1 at 18, 19.

8. Ibid.
9. Rabindra Nath Dutta v. State, AIR 1969 Cal. 55 at 56.
 17

that a person may offend against the rule without being fully
conscious of it. But the rule is enacted in the interest of the
peace of society and the means rea is furnished by the
knowledge of the voidability of the second marriage
necessarily implied in one who contracts it, which might at
first appear conflicting and contradictory. Of course, this is
the very essence of the crime, for if the second marriage is not
void, criminal law cannot punish what the civil law does not
prevent. 10
The voidability of the second marriage depends upon the
validity of the first marriage, and upon the fact that the
second marriage was a valid and sufficient marriage, but for
the existence of the first marriage. The validity of a marriage
depends upon :
(i) the religion of the parties.
(ii) their domicile and
(iii) the performance of ceremonies constituting the
marriage.
In the case of Krishna Kanta Nag v. State of Tripura, 11
wife give complaint under Section 494, Indian Penal Code,
1860, that her husband contracted second marriage during
her life time. The parties professed Hindu religion. Wife could
not prove that second marriage was performed in accordance
with Hindu rites and customs there was thus no valid
marriage. So, husband not guilty of offence under Section
494, Indian Penal Code, 1860, conviction set asid.
Section 494, does not apply to Mahomedan males, who
are allowed to marry more than one wife. But by Section 17 of
the Hindu Marriage Act, 1955, Section 494, applies to Hindus.

10. Supra note 1 at 19.

11. 2013(5) RCR (Criminal) 338 (Gauhati) (Agartala).
18

The combined effect of Section 17 of the Hindu Marriage Act,

1955 and Section 494, is that when a person contracts a
second marriage after the coming into force of the Hindu
Marriage Act, 1955, while the first marriage is subsisting, he
commits the offence of bigamy. 12 Section 494, applies to
Mahomedan females and to Christians 13 and Parsis 14 of the
either sex.
3. Object of Section 494 :
The object of enacting the Section 494, is to punish
persons who in defiance of the law applicable to them in
matters of marriage and divorce, etc. take a second spouse
during the existence of the first. 15
4. Essential ingredients of Section 494 :
To constitute an offence under Section 494, the following
essential ingredients must exist :
(i) The accused must have contracted the first valid
marriage :
The first essential element of the offence of bigamy under
Section 494, is a valid marriage entered into by accused prior
to the alleged bigamous marriage; thus, an indictment for
bigamy cannot be sustained where the prior marriage relied on
was void, as where it was itself bigamons by reason of the
existence of a valid marriage entered into still earlier. 16
If the prior marriage took place in another State or
country, it must be valid by the laws of that State or Country;
and if the prior marriage was valid in the State or Country

12. Gopal Lal v. State of Rajasthan AIR 1979 SC 713; 1979 Cri.L.J. 652
(SC): (1979) 2 SCR 1171.
13. Indian Christian Marriage Act, 1872.
14. Parsi Marriage and Divorce Act, 1936.
15. Ratanlal & Dhirajlal's Law of Crimes, 2423, Vol. II, Twenty-Fifth
Edition, 2006.
16. Davis v. People, 264, p. 658: 83 Colo. 295; People v. Lewis, 190 N.W.
702: 221 Mich. 164.
 19

where it was celebrated, its validity in the country where the

second marriage is celebrated is a question of no importance. 17
In order to constitute a valid marriage certain
ceremonies have to be necessarily gone through. What
ceremonies are necessary depends upon the custom of the
community to which the parties belong.
The validity of a marriage in the case of Mahomedans
and Jews, will be determined in accordance with their
religious usages. In the case of Hindus, Buddhists, Sikhs and
Jains it will be determined by the Hindu Marriage Act, 1955.
In the case of Christians, it will be determined by the Act of
1872, and of Parsis by the Parsi Marriage and Divorce Act,
1936. The Validity of a marriage celebrated under the Special
Marriage Act, 1954, will be determined by its provisions. 18
If the first marriage is not a valid marriage no offence
will be committed by contracting a second marriage. For
instance, if A marries B, a person within prohibited degrees of
affinity, and during B's lifetime marries C, A has not
committed bigamy. 19 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. 20
A 'marriage, good by the laws of one country, is held
good in all others where the question of its validity may arise.
For the question always must be: Did the parties intend to
contract marriage? And if they did that which in the place
they were in is deemed a marriage, they can not reasonably, or

17. Pen v. Chase, 28 Hun. 310.

18. Supra note 15 at 2424.
19. Chadwick (1847) 11 QB173; Kay (1887) 16 Cox 292.
20. Vijayalakshmi D. 2001 Cri.LJ 1583 (AP); Gopal Lal AIR 1979 SC 713,
Lingari Obulamma v. Venkata Reddy L, AIR 1979 SC 848; Usman v.
Buddhu, AIR 1942 Sin 92.
20

sensibly, or safely, be considered otherwise than as intending

a marriage contract'. 21
Prima facie, the expression 'whoever… marries', under
Section 494, must mean 'whoever…marries validly' or
'whoever… marries and whose marriage is a valid one'. If the
marriage is not a valid one, according to the law applicable to
the parties, no question of its being void by reason of its
taking place during the life of the husband or wife of the
person marrying arises. If the marriage is not a valid
marriage, it is not marriage in the eye of law. The bare fact of
a man and a woman living as husband and wife does not, at
any rate, normally give them the status of husband and wife
even though they may hold themselves out before society as
husband and wife and the society treats them as husband and
wife. 22
It cannot be in doubt that the expression "whoever
marries" must necessarily mean marries validity. If the
marriage is not a valid one according to the provision of law
applicable to the parties, no question of its being void by
reason of its taking place during the lifetime of the husband or
wife of the person marrying can arise. If the second marriage
is not a valid marriage, it is no marriage in the eye of the law.
Merely because a man and woman live as husband and wife,
they do not in fact become husband and wife in accordance
with the provisions of law which recognizes such status. In
order to constitute a valid marriage certain ceremonies have to
be necessarily gone through. What ceremonies are necessary

21. Warrender v. Warrender (1835) 2 CL & F 488, 530; Brinkley v.

Attormey General (1880) 15 PD 76.
22. Bhaurao Shankar Lokhande v. State of Mahrashtra, AIR 1965 SC 1564
at 1565.
 21

depends upon the custom of the community to which the

parties belong. 23
In order to find out what marriage is void for the purpose
of Section 494, it is necessary to refer to Hindu Marriage Act,
1955, which makes the second marriage void in certain cases,
Section5 of the Hindu Marriage Act, 1955, provides that a
marriage may be solemnized between any two Hindus if the
conditions referred to in that section are fulfilled. The first
condition referred to in the section is that neither party has a
spouse living at the time of marriage. Section 11 of the Hindu
Marriage Act, 1955, declares marriage which has been
solemnized in contravention of section 5(1) shall be void.
Section 17 of the Hindu Marriage Act, 1955, which is material
in this respect reads as follows :
'Any marriage between two Hindus after the
commencement of the Hindu Marriage Act, 1955, is void if on
the date of such marriage, either party had a husband or wife
living and provisions of Section 494 and 495, Indian Penal
Code, 1860, shall apply accordingly'. 24
It will thus be been that this section lays down two
things First, when a person remarries after the commencement
of the Hindu Marriage Act, 1955, if on the date of the marriage
he or she has a spouse living of the earlier marriage, such
marriage is void; and secondly, the provisions of Section 494
and 495, Indian Penal Code, 1860, shall apply accordingly to
such marriages. Under the prior Hindu law, Polyandry was
unlawful but polygamy was lawful. The Hindu Marriage Act,
1955, now enforces monogamy. Thus if the marriage is

23. Supra note 1 at 15.

24. Id. at 16.
22

violative of Section 5(i) 25 it is void both under Section 11 as

well as under Section 17 of the Act. It is not necessary to
make enquires as to why Section 17 declares such a marriage
void when that was already stated in Section 11. It is enough
to say this section penalizes the offender and putting effective
check on person preventing the rule of monogamy. The
essential purpose of Section 17 is to punish bigamy and in
order to do that, the section provides that in such cases the
provisions of Section 494 and 495, shall apply. Before the
commencement of the Hindu Marriage Act, 1955, a Hindu
male having more wives than one wives at the same time, was
not guilty of bigamy under Sections 494 and 495, Indian Penal
Code, 1860, since such marriages were not void according to
law then prevailing. Section 5(i) has now enforced monogamy
and Section 4 which has an overriding effect, abolishes prior
Hindu Law Relating to polygamy. Therefore, bigamous Hindu
Marriage solemnized after this Act would be punishable under
Sections 494 and 495. That is the purpose of Section 17 of
Hindu Marriage Act, 1955. 26
The word 'solemnized' used in Section 17 clearly
indicates that a marriage must be celebrated with proper
ceremonies and in due form according to the customs in the
community to which the parties belong. Unless therefore the
marriage is celebrated or performed with proper ceremonies in
due form it can not be said to be a marriage solemnized for
the purpose of Section 17. What must follow is that it is
essential for the purpose of Section 17 of the Hindu Marriage
Act, 1955, that the marriage to which Section 494, applies on
account of the provisions of the Act, should have been

25. The Hindu Marriage Act, 1955, Section 5(i).

26. Supra note 24.
 23

celebrated with proper ceremonies and in due form. Merely

because some ceremonies have been gone through in order to
show that the parties be taken to be married will not make the
ceremonies prescribed by law or approved by any established
custom. Section 7 of the Hindu Marriage Act, 1955, enjoins
that a Hindu Marriage may be solemnized in accordance with
the customary rites and ceremonies of either party thereto.
Where such rites and ceremonies include the saptapadi (that
is, the taking of seven steps by the bridegroom and the bride
jointly before the sacred fire), the marriage becomes complete
and binding when the seventh step is taken. 27
It will thus be seen that ordinarily a Hindu Marriage may
be solemnized in accordance with the customary rites and
ceremonies of either party thereto. Unless, of course, it is
shown that such rites and ceremonies included saptapadi,
then the marriage would be complete and binding when the
seventh step is taken round the sacred fire. 28
In the case of State of H.P. v. Rajinder Kumar, 29 court
held that the statement of wife that accused husband
harassed her for dowry and even after his demands were met
he had solemnized second marriage. Pandit appeared as
witness and stated that he had performed marriage of accused
with another woman according to Hindu customs but nowhere
stated ceremony of 'Saptapadi' was performed. Saptapadi,
ceremony required to prove Hindu marriage. So without the
proof of marriage offence of bigamy not made out.

27. Ibid.
28. Ibid.
29. 2013 Cri.LJ 4147 (H.P.).
24

(a) When the provisions of Section 494, is attracted :

The Provisions of Section 494, Indian Penal Code, 1860,
is attracted when a person marries after the commencement of
the Hindu Marriage Act, 1955, when he has a wife living. The
law prohibits and makes punishable a husband who marries
for the second time during the life time of the first wife. It is a
settled principle of law that in order to attract the penal
provision of Section 494, it must be shown that the
subsequent marriage was solemnized upon due performance of
the essential ceremonies upon which only a marriage becomes
a valid marriage. 30 Under the Hindu Marriage Act, 1955,
monogamy has become the law of the land to the persons to
whom the Hindu Marriage Act, 1955, applies. So marriage for
the second time, when there is already a subsisting marriage
has been made null and void and at the same time the man
entering into a second marriage has been made punishable
under the Hindu Marriage Act, 1955. It is therefore, necessary
to see before one can be made punishable to determine the
fact whether there had been a subsequent marriage during the
lifetime of the spouse from the stand point that the prior
marriage was duly solemnized. So, in a case where the
allegation is that a man has married twice it has got to be
decided, if the first marriage had been duly solemnized and
then there had been another marriage duly solemnized. In
case where either of the two marriages is found to be not duly
solemnized the position is that in the eye of law there is only
one legal and valid marriage making the charge of bigamy
unsustainable. 31

30. Supra note 1 at 9.

31. Id., at 10.
 25

The allegation of a prior marriage by a man with a

woman giving the status of a wife to the woman must
therefore, be seen if the alleged prior marriage had been
solemnized after due observance of the rites and ceremonies.
If it be found that the alleged prior marriage had not been so
solemnized, the mere fact that the petitioner had lived with
such a woman with whom some ceremonies of marriage had
been performed will not satisfy the essential ingredient to
prove the charge under Section 494, that there was a wife
living as obviously such woman cannot claim the status of a
legally married wife. 32
(ii) He must have married again :
A subsequent marriage, or, more accurately,
subsequently going through a from of marriage, is essential to
the offence under Section 494.
A subsequent marriage is an indispensable element of
the offence of bigamy, or in other language, alone constitutes
the offence, such marries is, of course, always void. 33
While it has been held that the subsequent marriage
must be of such a character that but for the existence of a
prior legal marriage it would be valid, the weight of authority
is that, where the form of ceremony of marriage with another
person is gone through there is a sufficient marriage on which
to predicate a charge of bigamy the view being taken that the
word 'marries' when applied to a subsequent marriage, means
going through a form of marriage; and does not mean a valid
marriage; added formalities are not necessary where mutual

32. Rabindra Nath Dutta v. State, AIR 1959, Cal. 55 at 56-57.

33. Supra note 1 at 58.
26

consent of the parties alone is sufficient to constitute

matrimony, and a common law marriage is sufficient. 34
The offence of bigamy is directed against the second
marriage. The second marriage, therefore, must be legally
valid marriage so as to come within the mischief of Section
494. Prosecution is under an obligation to satisfactorily
establish by evidence that the second marriage has been
solemnized in accordance with law or custom which is
applicable to the parties. 35
In the case of Kannan v. Selvamuttukani, 36 husband and
wife takes divorce by mutual consent. But on appeal by wife,
decree of divorce set aside by appellant court. Husband
contracting second marriage after about one month of setting
aside decree of divorce. Evidence on record showed that
husband was not aware of setting aside decree of divorce when
he got married. The court held that no offence under Section
494, Indian Penal Code, 1860, made out.
The word 'Solemnize' means in connection with a
marriage' to celebrate the marriage with proper ceremonies
and in due form. 37
The law prohibits and makes punishable a husband who
marries for the second time during the life time of the first
wife. It is a settled principle of law that in order to attract the
penal provision of Section 494, it must be shown that the
subsequent marriage was solemnized upon due performance of

34. Hopson v. State, 30 S.W. ed. 311: 115 Tex Cr. 260; Burs v. State, 94
S.W. 1040: 50 Tex Cr. 47.
35. Bolaram Baruti v. Mst. Surjya Baruti, AIR 1969 Assam 90; Pyari Devi
alias Lalti Devi v. Ramanand, 1984 All. Cr.R. 419 at 421; Dhara Devi
v. Prafulla Swain, (1984) 50 Cut. L.J. 101 at 106.
36. 2012(4) RCR (Criminal) 331 (SC).
37. Id., at 91.
 27

the essential ceremonies upon which only a marriage becomes

a valid marriage. 38
In the case of Kanwar singh v. NCT of Delhi, 39 husband
contacting second marriage during subsisting of first wife. A
criminal complaint under Section 494, Indian Penal Code,
1860, made against husband, second wife and other relatives
who attended the marriage. Summoning offence under Section
494, Indian Penal Code, 1860, is committed by either spouse,
who remarries during subsistence of a legal and valid
marriage.
(a) Second Marriage – When Bigamous :
There is some difference between the first marriage, the
subsistence of which gives the complainant a right to file a
complaint under Section 494, and a second marriage, which
can be said to be bigamous for the purpose of the Section 494.
In the case of first marriage, it has to be proved that the
marriage was legally valid, i.e., –
(1) there were no legal impediments to the contracting of
such marriage; and
(2) the marriage was performed according to the
minimum ceremonies necessary for its validity. 40
If the marriage is not found to be valid according to
either of the said test, no offence of bigamy will be made out.
On the other hand, in the case of a second marriage, it is not
necessary that the marriage should be other wise valid
according to law apart from the fact that a spouse is living
(the fact, that parties are within the prohibited degrees, will
not prevent the marriage from being bigamous), but it is

38. Rabindra Nath Datta v. State, AIR 1969 Cal 55 at 56; Kartar Kaur v.
Bikkar, (1985) 87 PLR 193.
39. 2012 (2) RCR (Criminal) 301 (Delhi).
40. RA Nelson's Indian Penal Code, 4560, Vol. IV, Ninth Edition, 2003.
28

necessary that the ceremonies, essential to a marriage, are

duly performed. Thus, while the absence of legal impediments
is required for determining the validity of the first marriage,
the impediments are not to be considered for treating a second
marriage as bigamous. Section 494, does not refer to a valid
marriage. A bigamous marriage cannot be a valid marriage. 41 If
the first marriage is valid, it would be bigamy to marry again,
notwithstanding any special circumstances, which
independently of the bigamous character of the marriage, may
constitute a legal disability in the parties or make the form of
marriage resorted to inapplicable to their case. 42 In the case of
Payari v. Faqir Chand Alakha, 43 held that Section 494, does
not require that the second marriage with the person
concerned must otherwise be valid according to law. However,
the validity of form of marriage is required in the case of both
the marriages where, therefore, either of the two marriages is
found to be not duly solemnized, the position would be that in
the eyes of law, there is only one legal and valid marriage
making the charge of bigamy unsustainable. 44
While it is not necessary, in order to attract the
provision of Section 494, to prove that the second marriage
was legally valid (i.e., without any legal impediments), it is
necessary to prove that the accused went through some form
of marriage which, but for the existence of the impediment of
the first marriage, would have been recognized as marriage,
valid in form by the law, under the form, of which it was

41. Kalan Devi v. Thakur Das, 1977 Ch. LR (Raj) 79.

42. Gurbaksh Singh v. Shama, 19 PR 1886.
43. AIR 1961 Punj 167, (1961) 1 Cri. LJ 549, dissenting from Swapua
Mukherjee v. Basanta Ranjan Mukherjee AIR 1955 Cal 533.
44. Modi Bala Krishna Ramaraju v. Bodi Thimpathamma, 1975 Cri.L.J.
208, 211, 1973 Mad LJ (cr) 740 (Proof of Second marriage in
accordance with the essential religious rites applicable to the parties
is a must for a conviction on a charge of bigamy.
 29

celebrated. 45 In other words, in order that an offence under

Section 494, may be committed, it is necessary, at least, that
all the ceremonies, which are necessary to be performed in
order that a valid marriage may take place, ought to be
performed and, ordinarily, all these ceremonies would amount
to a valid marriage but for the fact that the marriage becomes
void on account of the existence of a previous wife. 46 Where a
spouse contracts a second marriage when the first marriage is
still subsisting, the spouse would be guilty of bigamy under
Section 494, if it is proved that the second marriage was a
valid one in the sense that the necessary ceremonies, required
by law or by custom, have been actually performed. The
voidness of the marriage under Section 17 of the Hindu
Marriage Act, 1955, is, in fact, one of the essential ingredients
of Section 494, because the second marriage will become void
only because of the provision of Section 17 of the Hindu
Marriage Act, 1955. 47 Merely going through certain
ceremonies, with the intention that parties be taken to be
married, will not make the ceremonies prescribed by law or
approved by any established custom. 48 Similarly, mere keeping
of a concubine or mistress is not sufficient to attract the
provisions of Section 494. 49 If there is no satisfactory evidence
of the performance of ceremonies of a valid marriage, no

45. Shankuntala v. Nilkanth, 1973 Mah LJ 310.

46. Malan v. State of Bombay, AIR 1960 Bom 393; P. Satyanarayana v. P.
Malliah (1996) 6 SCC 122, 1996 AIR SCW 4000; Gomti v. Bahadur
1997 (2) RCR 705; Tayab Hussain v. Kanchan Sharma, 1997 (2) RCR
707; Sham Singh v. Sarvjit Kaur (1998 (3) RCR 784.
47. Gopal Lal v. State of Rajasthan, 1980 Bih Cr. Cas 128; Bhaurao
Shankar Lakhunde v. State of Maharashtra, AIR 1965 SC 1564.
48. Kanwal Ram v. Himachal Pradesh Administration, AIR 1965 SC 614,
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; Kapila
Venkata Laxmi v. Kapila Paroathanarayana, 1969 CrLJ 836 (AP).
49. Mina Dei v. Abdhu Biswas 30 Cut LT 294, 1947 All WR (Supp)) 33.
30

offence of bigamy would be made out. 50 Proof of getting the

marriage registered at a caste organization by payment of
necessary fees is not sufficient to prove that the marriage in
question was contracted. 51 The test for deciding whether all
the necessary ceremonies for a valid marriage were performed
is: will the union through the alleged marriage constitute a
valid marriage if the other spouse were not living? This can be
determined by a applying the test: will the wife, if former wife
were not living, be entitled to claim maintenance as a married
wife and will the children, born of the union, be deemed born
in or out of wedlock? If these tests are satisfied, it will be open
to the court, while considering the facts of an individual under
Section 494, to presume that all the necessary ceremonies had
been undergone. 52 If the marriage is valid according to the
customary rites, it would be complete and binding. In the
Reddy Community in Telangana area, the essential ceremonies
must be tying of manalsutra and putting the toe-ring,
throwing rice over each other's head and the ceremony
connected with the yoke. If these ceremonies are performed,
the marriage of a Reddy couple gets completed and handing on
the parties. 53
(b) Cohabitation under the second marriage :
Except under particular status, cohabitation under the
second marriage is not essential to, or part of, the offence
under Section 494. Except as particular statutes have a
different effect, cohabitation under the second marriage is not
requisite, but the offence of bigamy is committed when the

50. Ratnakar Nanda v. Ramesh Kumar, ILR 1963 Cut 464.

51. Mukta Jesing v. Vallabhadas Kalidas, 1974 Cri.LJ 121, 123, 14 Guj
LR 707.
52. Sandhiya Devi v. State of Uttar Pradesh, 1974 All CR Cas 341.
53. ReRaghava Reddy, AIR 1968 Andhra Pradesh 117; Sivarama Suppu v.
State 1962 Ker LT 487.
 31

second marriage is solemnized; and subsequent cohabitation

does not constitute bigamy, and is not a part or any element
of the offence. 54
(iii) The First marriage must be subsisting :
The first spouse must be alive at the time of the second
marriage, to the knowledge of the accused. If the prior
marriage was dissolved, as by divorce or annulment, before
the second took place, there is no bigamy, but a fraudulent or
otherwise ineffectual divorce is no defence.
Since the prior marriage must be still subsisting, the
first husband or wife must be alive at the time of the second
marriage. Accused has been required to have knowledge that
the first spouse is still alive, and the requirement of such
knowledge has been incorporated in the definition of bigamy. 55
In the case of Smt. Vidya Tomar v. State of Rajasthan and
Others, 56 held that second marriage during subsistence of first
marriage is offence under Section 494, Indian Penal Code,
1860.
That there was a first marriage and that it had not been
declared void, as provided in the exception, does not suffice to
show that the marriage was a subsisting marriage at the time
the offending marriage took place. For, it is provided in the
second clause of the Section 494, that a person not heard of
for seven years may be presumed to be dead. If, therefore, the
husband or wife have separated under conditions which create
the presumption, the other party may validly contract a
second marriage, and such marriage would not be void even
though the husband or wife are, then still alive. The exception

54. Pits v. State, 95 AC. 706.

55. Supra note 1 at 58.
56. 2013 (Criminal Court Cases 131 (Rajasthan).
32

speaks only of the court declaring a marriage void, but a

marriage may also be dissolved by proceeding under the
Divorce Act, 57 in which case the court dissolves the marriage
and gives the parties freedom to re marry after such
dissolution.
(a) 'Mens rea' :
Section 494, Indian Penal Code, 1860, makes no
reference to intention, knowledge, fraud or deceit but
constitutes the mere contracting of the second marriage a
crime. But does it mean that the normal presumption that a
penal statue requires mens rea, even though it contains no
express word to the effect should not be given effect to? In the
celebrated decision in R. v. Tolson, 58 the requirement of mens
rea was read into the bigamy section, though it was not
expressly mentioned and although the Section 494, itself
expressed some exemptions from responsibility that did not
cover that particular case.
Mens rea, i.e., guilty knowledge, is a necessary
ingredient of the offence of bigamy under Section 494. 59
The intent to commit bigamy was held to be negatived by
the accused's mistaken belief in the death of her husband.
How far the exemption accorded by the decision depends on
the reasonableness of the mistake, had led to some
controversy. It would seem anyhow that in the absence of
words in the statue dispensing with proof of mens rea it
should be held that the crime can be committed only
intentionally or recklessly. So if a person charged with bigamy
believed that he was legally free to marry again it cannot be

57. Act 1869.

58. (1889) 23 Q.B.D. 168 C.C.R.
59. Sankaran Sukumaran v. Krishnan Saraswathy & Another 1984 Cri.LJ
317 (Ker).
 33

said that the crime was committed either intentionally or

recklessly and the question whether the belief was
unreasonable is irrelevant. 60
It will be noticed that Section 494, makes no reference to
intention, knowledge, fraud or deceit, but constitute the mere
contracting to the second marriage a crime. It is then possible
that a person may offend against the rule without being fully
conscious of it. But the rule is enacted in the interest of the
peace of society and the mens rea is furnished by the
knowledge of the voidability of the second 61 marriage
necessarily implie in one who contracts it, which might at first
appear conflicting and contradictory. Of course, this is the
very essence of the crime, for if the second marriage is not
void, criminal law cannot punish what the civil law does not
prevent.
In the case of R. v. Dolman, 62 the question was whether it
was a good defence if the accused person can prove that at the
time of the second marriage he had reasonable cause to
believe and honestly believed that his first marriage was void
on the ground that the woman he then married was already
married to another man. Streat Field. J., before whom the
case came for trial in directing the jury to hold in the
affirmative said :
'If the prosecution proves that the party accused
was married to one person and then went through
a form of marriage with another person, that
constitutes the crime of bigamy, but it has been
held that bigamy, like many other offences require
that there shall be what is known as guilty
knowledge: there must be an appreciation that a

60. Kouch Muhammad Kunsu Ismail v. Mohammad Kadeja Umma, AIR

1959 Ker. 151 at 153-154: 1958 Ker.
61. Supra note 59.
62. (1949) 1 All E.R. 813.
34

crime is being committed. In many cases the law

requires that in addition to an unlawful act there
shall be a specific intention to do something or
other. That does not apply here, but the person
accused must have a culpable, guilty knowledge
that he is doing something unlawful'. 63

In prosecution under Section 494, the accused's criminal

intention in the act complained of against him is of greater
importance and significance than the question of any civil
rights as between himself and the complainant. Criminal
intention or guilty knowledge must be made out against the
accused before the act complained of can be held to constitute
a penal offence. It is clear from the expression having a
husband or wife living that it is not enough that the individual
contemplated is alive at the relevant period but also that his
or her earlier marriage also is subsisting in law. Only when
both these conditions are satisfied can it be said that such
husband or wife was alive at the relevant period. The plea of
the accused that entered into the second marriage in all good
faith and after the honest impression that his earliest
marriage with the complainant had been but an end to by the
order of dissolution passed by a court of competent
jurisdiction has to be accepted as a valid defence. 64
The first accused took learned opinion that she could
effectively divorce the complainant and went through the
formalities thereof. She then gave notice to the complainant,
waited for some time and then married the third accused. It
was held there could have been no criminal knowledge that
her first marriage with the complainant was subsisting when
she entered into the second marriage and accused 1 and 3

63. Supra note 2 at 4635.

64. Per Sankaran, J., Janki Amma v. Padmanabhan Nair, 1954 Ker. L.T.
997.
 35

were not in the circumstances guilty of the crime under

Section 494. 65
(iv) The spouse must be living :
It must be shown that the husband or wife is alive at the
date of the second marriage.
(v) Both the marriages must be valid :
The Supreme Court has observed that prima facie, the
expression 'whoever'… marries' must mean 'whoever….
marries validly', or 'whoever--- marries and whose marriage is
a valid one. If the marriage is not a valid one, according to the
law applicable to the parties, no question of its being void by
reason of its taking place during the life of the husband or
wife of the person arises. If the marriage is not a valid
marriage, it is no marriage in the eye of the law. 66
The word 'solemnize' means 'to celebrate the marriage
with proper ceremonies and in due form'. Unless the marriage
is 'celebrated or performed with proper ceremonies and due
form' it can not be said to be 'solemnized'. It is essential for
the purpose of Section 17 of the Hindu Marriage Act, 1955,
that the marriage to which Section 494, applies on account of
the provisions of the Act, should have been celebrated with
proper ceremonies and in due form. Merely going through
certain ceremonies with the intention that the parties be taken
to be married, will not make the ceremonies prescribed by law
or approved by any established custom. Where both sides
agreed that according to the law prevalent amongst them
homa and saptapadi were essential rites to be performed for
solemnization of the marriage and there was no specific

65. Kochu Muhammad Kunju Ismail v. Mohammad Kadeja Umma, AIR 1959
Ker. 151 at 154.
66. Kiran Devi v. Thakur Das, 1977 Cri LR (Raj) 79; Bhaurao Shankar
Lokhande, AIR 1965 SC 1564: (1965) 2 Cri LJ 544 (SC).
36

evidence regarding the performance of these essential rites in

regard to the second marriage, it was held that the charge
under Section 494, could not be made out. 67
The Supreme Court, is another case has held that in a
bigamy case, the second marriage as a fact, that is to say, the
essential ceremonies constituting it must be proved.
Admission of marriage by the accused is not evidence of it for
the purpose of providing marriage in a adultery or bigamy
case. 68
Satya Devi v. Khem Chand, 69 in this case Satya Devi had
filed a private complaint alleging that the respondent had
solemnized marriage on 27.11.1998 with her and sworn an
affidavit before Notary Public. They were living together as
husband and wife nicely and from this wed-lock, a male child
born to appellant (Satyadevi). From the year 2000, the
respondent (Khem Chand) stated ill-treating her-consequently
she lodged in F.I.R. Khem Chand admitted marriage with her
before police but stated that he has married with another
woman and appellant was turned out since then. She is
residing in her parental house. Trial court acquitted the
respondent. Both parties are Hindus. There is no specific
evidence regarding performance of essential rites. If 2 nd
marriage has taken place, it will be void. However if the
alleged 2 nd marriage is not valid according to law applicable to
parties, it will not become void for reason of it taking place

67. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153;
Lingari Obulamma v. Venkata Reddy L AIR 1979 SC 848; Laxmi Devi,
AIR 1994 SC 1566; Satyamarayana P. v. Mallaiah, P, 1997 Cri.LJ 211
(SC).
68. Kanwal Ram, AIR 1966 SC 614; Trialokya Mohan (1968) Cri.LJ 896
(Ass); Mukta Jesing v. Vallabhadas Kalidas, 1974 Cri.LJ 121 (Guj);
Gopal Anant Musalgaonkar, 1976 Cri.LJ 1333 (MP); Shantimani Dei v.
Lingaraj Moharana, 1982 Cri.LJ 1567 Ori; Amaliammal v.
Rayarswami, 1983 Cri.LJ 1719 (Mad).
69. 2013 (5) RCR (Criminal) 812 (H.P.) (D.B.).
 37

during lifetime of existing spouse so as to attract Section 494,

Indian Penal Code, 1860. So the Section 17 of Hindu Marriage
Act, 1955, is also not attracted. Since the appellant (Satya
Devi) failed to prove her marriage in accordance with law,
which is sine qua non for bigamy. Mere admission of appellant
would not be enough. Hence the appeal against acquittal has
no merit and thus dismissed.
In the case of Azad alias Naresh R Azad v. State of Bihar
& Another, 70 court held that offence under Section 494, Indian
Penal Code, 1860, may be inquired into or tried by a court
within whose local jurisdiction the wife by the first marriage
has taken up permanent residence after the commission of
offence.
5. Exception under Section 494:
The exception speaks of (1) the first marriage having
been declared void by a court; and (2) seven years 'absence on
the part of a spouse in a manner not heard of by the other
party. Under the English law there is third element, viz. bona
fide belief in the spouse's death, 71 which is not adopted in the
exception. The proviso to this exception confines its
application to cases in which the accused before the second
marriage discloses the real state of the case, and such
knowledge as he or she may have concerning the
circumstances, to the person about to be married.
If the accused bona fide believed that the earlier
marriage was set aside by the court he would not be guilty. 72
In the absence of words in the statute dispensing with proof of

70. 2012 (3) Criminaal Court Cases, 074 (Patna).

71. Tulson (1889) 23 QBD 168.
72. Karim Baksh, AIR 1918 Lah 217: (1918) 19 Cri.LJ 680 (Lah).
38

mens rea it should be held that the offence under Section 494,
can be committed only intentionally or recklessly. 73
If it is proved that the accused and his first wife have
lived apart for seven years preceding the second marriage, it is
incumbent on the prosecution to show that during that time
he was aware of her existence; and, in the absence of such
proof, the accused is entitled to be acquitted. 74 Where a
woman, who having the means of acquiring knowledge of the
death of her first husband, does not make use of them, and
marries, she commits bigamy. 75
The doctrine of a certain school of Mahomedan divines in
regard to the competency of a woman to marry again after the
absence of her husband for four years does not entitle a
woman so remarrying to the benefit of the exception. 76
Under this exception it is incumbent on the person
contracting the second marriage, if it is contracted within
seven years, to inform the other party about the first
marriage. 77
(i) Proof of exception to criminality :
It is ordinarily on the prosecution to establish all the
elements necessary for proving the offence of bigamy. The
accused may them plead the exception, and if he can prove
that he had not heard of his spouse for a period of seven
years, he would be acquitted, unless the prosecution prove the
contrary as a fact. The fact that if the accused had enquired
from sources which he did not avail himself of, he would have
learnt the existence of his spouse, does not rebut the

73. Supra note 65.

74. Curgerwen (1865) LR ICCR 1; Heaton (1863) 3 F & F 819.
75. Enai Beebee (1865) 4 WR (Cr.) 25; Must Muhammad Nissa (1899) PR
No. 1 of 1900.
76. Alam Shah v. Jewan (1878) PR No. 27 of 1878.
77. Supra note 75.
 39

presumption of death. 78 In other words, the presumption

arising from seven years continuous absence, though not
irrebuttable is yet sufficient to negative criminality for the
offence of bigamy. 79 The fact that he had himself deserted his
wife is immaterial for this purpose. 80
(a) Defence to the charge of Bigamy :
Apart from this exception, there may be other defences
open to a charge of bigamy. Suppose, for instance, the party
remarrying may have received information that his wife was
dead though, in fact, she was alive. 81
In the Case of Karim Baksh v. Emperor, 82 a Mahomedan
girl was married by her grandfather in her childhood. The girl,
on attaining puberty wished to repudiate her marriage. An ex
parte decree was passed in her favour, which decree was set
aside subsequently and the suit was withdrawn. Later on, the
girl went through the form of the marriage with one Karim
Baksh. Karim Baksh did not know that the ex parte decree
was set aside. He was convicted and sentenced under Sections
494 and 114, Indian Penal Code, 1860. His appeal having
been rejected, he filed Criminal Revision in the High Court
which held that it could not be said that he committed any
offence. The woman, if she knew that the decree had been set
aside, was no doubt guilty of bigamy, but unless Karim Baksh
knew that the decree had been set aside it cannot be said that
he abetted the bigamy. It should also be noticed that the

78. Cullen, (1840) 9C. & P. 631; Jones, Carr. & M. 614; Briggs, 26
L.J.M.C., 7; Curgerwen, 35 L.J.M.C. 58; Twying, (1819) 2 B. & Ald.
386.
79. Curgerwen, (1865) LR I.C.C.I.
80. Faulkes, (1903) 19 T.L.R. 250.
81. Tolson, 23 Q. B.D. 168, Overruling contra in Gibbons, 12 Cox. 237;
Contra Sambhu, I.L.R. 1 Bom. 347.
82. 19 Cri.LJ 630 at 631: (1918) P.W.R. 31; Contra in Narantakath v.
Parenkal, I.L.R. 45 Mad. 986.
40

Section 494, Indian Penal Code, 1860, does not punish for the
error of contracting a void second marriage, but only when it
is void by person of its taking place during the lifetime of the
first spouse. The term 'void' in both the section and exception
is used as meaning invalid and not merely voidably. In
England, it has been held that a marriage which is voidable,
but not void, is sufficient to support an indictment for
bigamy. 83 And a similar view has been taken in Ireland. 84 So
marriage voidable for impotency of another party is a good
marriage till it is avoided and would support an indictment for
bigamy. 85
6. Abetment in Bigamy :
Mere permission to allow one's premises to be used for
the purpose of the marriage does not in itself lead to the
conclusion that the person has abetted the performance of the
marriage. 86
Just because the mother of the first accused along with
petitioners 2, 3, 5 and 6 was present at the time when first
accused married the second accused it cannot be said that
she was there only to commit abetment of the offence
committed or committed by the first accused. 87
For proving an offence punishable under Section 494,
read with Section 109, Indian Penal Code, 1860, it has to be
established first that the family members or relatives of the
principle accused had either attended the first marriage or
knew the couple as husband and wife and had no reason to
believe that the marriage has been dissolved. Secondly, they

83. Co. Inst. 88.

84. Jacobs, 2 Mood C.C.140.
85. A. v. B., 27 L.R. Ir. 608.
86. Malan v. State of Bombay, AIR 1960 Bom. 393 at 395.
87. Muthammal v. Maruthathal, 1981 Cri.LJ 833 at 836 (Mad).
 41

should do some act in the actual celebration of the second

marriage, which may be considered as an act of abetment
such as putting knot in token of the due performance of the
marriage. 88
By mere association of the accused persons who are
charged for an offence of abetment of the principal offender in
the absence of any material to show that there was an
instigation by the petitioners or that there was any intention
either in aiding or in commission of the offence, it cannot be
said that they have committed an offence of abetment. 89
A charge for abetment of bigamy was framed against the
petitioners present at a marriage. They received the sacred
rice but they did not throw on the couple, nor was there any
evidence to that effect. That apart, the evidence adduced did
not throw any light that the petitioner's presence at the time
of the marriage amounted to commission of the offence and
that had these persons not remained or present at the time of
the marriage, the offence under Section 494, would not have
taken place. It was held that the charge of abetment could not
be leveled against the petitioners. 90
So far as the issuance of process against accused Nos. 8
to 12 is concerned, it is pertinent to note that nothing has
been averred even in the complainant itself that, these
accused had a knowledge of prior marriage between the
complainant and accused No. 1. It has been rightly held by
the Additional Sessions Judge that, the status of the accused
against whom process has not been issued was one of the
abettor and they were expected to know the first marriage of

88. Kalanji Ammol v. Shambagan, 1989 Cri.LJ 405 (Mad).

89. Karuppiah Servai v. Nagavalli Ammal. 1982 Cri.LJ 1362 at 1364
(Mad).
90. Supra note 87.
42

the complainant with the accused No. 1 and for this, it was
necessary for the complainant to place on record preliminary
evidence. It is pertinent to note that neither in the verification
of the complainant not in the evidence of witness Narayan this
evidence is coming forth. The judicial Magistrate has also
found that accused Nos. 3 to 7 are only liable for the offences
punishable under Sections 494 and 109, Indian Penal Code,
1860, and Prima Facie no offence was disclosed against any of
the accused Nos. 8 to 12. The Judicial magistrate well as the
Additional Sessions Judge, therefore, were justified in refusing
to issue process for offences against accused Nos. 8 to 12. 91
Mere presence at the commission of crime even with the
awareness that a crime was being committed, is not in itself
an intentional aid. To be present and to be aware that an
offence is about to be committed does not constitute the
abetment unless the person thus present holds some position
of rank or influence such that his countenancing what takes
place may, under the circumstances, be held a direct
encouragement. 92
Mere consent of persons to be present at an illegal
marriage, or their presence in pursuance of such consent, or
the grant of accommodation in a house for the marriage, does
not necessarily constitute abetment of such marriage. 93
The priest who officiates at a bigamous marriage is an
abettor under Section 494, and Section 109, Indian Penal
Code, 1860. 94

91. Nirmalabai v. K.A. Dhasal, 1992(2) Mah. LR 737 at 738, 739, (Bom).
92. B. Chandra Mani Kyamma v. B. Sudarsana Rao alias saleem
Mohammad. 1989 (1) Cr.LC 505 at 526.
93. Umi (1882) 6 Bom 126.
94. Millard (1887) 10 Mad 218.
 43

A man may be guilty of abetment although the girl

herself may, be, from want of intelligence or knowledge,
incapable of committing abetment. 95 For abetment there must
be evidence that the person accused of abetment knew that
the person he married was the wife of another man. 96 In order
that there may be a conviction of abetment of the offence
under Section 494, it must be found as a fact that the
convicted person abetted the woman intentionally. 97 The wife
of the first accused having left his house with her minor
daughter performed the marriage of the daughter with a boy.
The first accused hearing of this applied to a Magistrate for a
warrant under Section 100, Code of Criminal Procedure, 1898
and thereupon the girl was handed over to him, and a few
months later she was married by him to the second accused.
Both the accused were then prosecuted for abetting the
offence of bigamy. It was held that although a Hindu father
was the proper person to give his daughter in marriage, even if
the first marriage was brought about by fraud and might on
that account be declared invalid, it was not nullity and was
binding until it was set aside by a competent court, and
unless it was declared to be invalid, it could sustain an
indictment for bigamy. 98 Where a Mahomedan guardian of a
married female infant while her husband was living, caused a
marriage ceremony to be gone through in her name with
another man, but without her taking any part in the
transaction, it was held that he did not commit the offence of
abetment under Section 109 and Section 494, Indian Penal

95. Nand Lal Singh (1902) 6 CWN 343; Hub Ali (1923) 21 ALJ 187.
96. Chand Dhawan, AIR 1992 SC 1379; Hamad, AIR 1931 Lah 194;
Ananda (1993) Supp 3 SCC 68: 1993 SCC (Cri) 868.
97. Talep Ali v. Sabdar Khan (1940) 45 CWN 84.
98. Gajja Nand (1921) 2 Lah 288.
44

Code, 1860. 99 This case does not seem to lay down sound law.
The accused remained present at the time of the celebration of
a marriage, which they knew was a void marriage under
Section 494, Indian Penal Code, 1860, and they threw holy
rice on the couple during the performance of the marriage.
One of the accused distributed pan after the marriage
ceremony was over. It was held that the acts of the accused
were not acts of abetment of the offence of bigamy punishable
under Section 494. 100 Just because the mother of the accused
was present at the time of marriage along with the other
petitioners, it can not be said that she was there only to
commit abetment of the offence to be committed or committed
by the accused. The evidence adduced by the prosecution
witnesses did not show that the presence of the petitioners
had not remained present at the time of the marriage the
offence under Section 494, would not have taken place. 101
In the case of Kannan v. Selvamuthukani, 102 allegation
were that accuse married co-accused during subsistence of
first marriage with complainant in presence of co-accused
persons. Accused obtained a decree of divorce which was set
aside in appeal. Evidence of complainant establishes beyond
doubt that accused married co-accused, after set aside of
decree of divorce. Evidence of witnesses however does not
conclusively established that fact that decree of divorce was
set aside was known to co-accused persons. Hence, it was
held that it can not be presumed that she knew that the
decree of divorce was set aside, co-accused entitled to benefit

99. Abdook Kurreem (1878) 4 Cal. 10.

100. Malan, AIR 1960 Bom 393: 1960 Cri.LJ 1139.
101. Supra note .94 Id at 833.
102. 2012 Cri.LJ 1576 (SC).
 45

of doubt and not punished under Sections 494 and 109,

Indian Penal Code, 1860.
In the case of Smt. Rupa & Other v. State of U.P. &
Another, 103 there is no allegation that applicants engaged
themselves in any criminal conspiracy to commit an offence
under Section 494, Indian Penal Code, 1860. It is the case of
applicant No. 1 that she did not know about any prior
marriage of 'R' with opposite party No. 2. Her presence at the
time of incident has been falsified. Court held that, in absence
of any knowledge of prior marriage of 'R', applicants can not
be held guilty for offence under Section 494, read with Section
109, Indian Penal Code, 1860.
7. Conversion and Bigamy :
The case of Indian converts to Christianity stand on a
different footing. Being native of India, they are members of a
community where polygamy is the rule, monogamy an
exception. The fact that they are converts to Christianity, does
not imply any necessary religious obligation of monogamy.
For, as observed by Innes, J., a Profession of Christianity does
not ipso facto impose any such obligation, although doubtless
the tendency of Christianity is adverse to polygamy. 104
Polygamy as an offence exists only by statute, and the only
statute against polygamy is 9 Geo. IV, c. 74, Section 70 of
which, however, only applies to persons in India professing
the Christian religion at the time of the second marriage. 105
Consequently, if a Christian married a Christian woman and
then, relapsing, re-married a Hindu woman, the statue could
not touch him, because he was not a professed Christian, but

103. 2014(1) Criminal Court Cases, 370, (Allahabad).

104. Anon, 3 M.H.C. (App.) 7; Muthusami v. Masilamani, ILR 33 Mad 342;
Antony, ILR. 33 Mad 371.
105. Ibid.
46

a professed Hindu at the time of his second marriage, nor,

indeed, could his second marriage be held to be void for the
purpose of the present section, for Hindu law sanctions
polygamy and in re-admitting a Christian to caste. Hindu law
altogether ignores the status which he had just abandoned
together with all obligations contracted under it, and
consequently, it does not recognize anything as a marriage
which was not entered upon then by him as a Hindu, and with
Hindu forms and ceremonies. Such a person, then could not
be convicted of this offence, 106 though he would, of course, be
liable for maintaining his Christian wife. 107 Where the question
for decision was whether an Indian Christian married with an
Indian Christian woman who becomes converted to
Mohammedanism can take a second wife, the High Court held
that as he was entitled to contract this marriage under the
Mahomedan law, it must be held to be a valid marriage unless
there is some statue which invalidates it. 108 But where a
Christian woman, who had married a Christian husband
became a Mahomedan and married a Mahomedan according to
Mahomedan rights during the lifetime of the first husband, it
was held that she was guilty of the offence under Section
494. 109
The same question was indirectly involved in a suit
instituted for another purpose which was ultimately disposed
of by the Privy Council. There the parties were residents of
Bellary, of Hindu Origin, but had become converted to
Christianity, and the questions was whether one of them, a

106. Mathamma v. Munuswamy, AIR 1951 Mad. 888 at 889; ILR 33 Mad
371; M.S. David v. Sudha, AIR 1950 Mys. 26 at 29.
107. M.H.C.R. (App.) 3.
108. John Jiba Chandra Dutta v. Abinash Chandra Sen, AIR 1939 Cal 417
at 417-418.
109. Abraham v. Abraham, 9 M.I.A. 194 at 243, 244.
 47

widow, was entitled to a share of the family property or only to

maintenance. It was clear that if the parties were governed by
Hindu law she was entitled to no share. Consequently, it was
contended for her that in India the status of religion as
regards natives is the status of law, that the law was the
religion both of Hindus and Mahomedans, and the Hindu law
being a law of religion, could not apply to persons who were
not Hindu but were Christian who must be governed by the
English law. But these contentions were overruled by Lord
Kings down, 110 who, delivering the judgment of their
Lordships, said : 'Considering the case, then, with reference to
partnership, what is the position of a member of a Hindu
family who has become a convert to Christianity? He becomes,
as their Lordships apprehend, at once severed from the family
and regarded by them as an outcaste. The tie which bound the
family together is, so far as he is concerned, not only
loosened, but dissolved. The obligations consequent upon and
connected with the tie must, as it seems to their Lordships, be
dissolved with it. Partnership may be put an end to by a
severance effected by partition, it must, as their lordships
think, equally be put an end to by severance which the Hindu
law recognizes and creates. Their Lordships, therefore, are of
opinion, that upon the conversion of a Hindu to Christianity
the Hindu law ceases to have any continuing obligatory force
upon the convert. He may renounce the old law by which he
was bound, as he has renounced his old religion, or if he
think fit, he may abide by the old law, notwithstanding he has
renounced the old religion'. 111

110. Supra note 1 at 41.

111. Supra note 109 at 237, 238.
48

Later on their Lordships intimated as their opinion that

the change of religion does not necessarily imply the rejection
of all old customs, but at the same time custom implies
continuance and a custom adhered to in one generation may
be abandoned in the next. 'If a family of converts retain the
customs in part of their unconverted predecessors, is that
election of theirs invariable and inflexible? Can neither they
nor their descendants change things, in their very nature
variable, as dependent on the changeful inclinations, feelings,
obligations of successive generations of men? If the spirit of
an adopted religion improves those who become converted to
it, and they reject, from conscience, customs to which their
first converted ancestors adhered, must the abandoned usages
be treated by a sort of fictio juris as still the enduring customs
of the family? If it be not so as to things which belong to the
jurisdiction of conscience, is it so as to things of convenience
or interest? Surely, in things indifferent in themselves, the
tribunals which have no lex fori imposed on them, should
rather proceed on what actually exists than what has existed,
and informing their own presumptions have regard rather to a
man's own way of life them to that of his predecessors, though
race and blood are independent of volition, usage is not. 112
This precedent is then an authority for the two following
propositions: (1) that in the case of a Hindu the existence of
polygamy would be presumed until the contrary is shown; but
(2) in the case of a Hindu or Mahomedan convert to
Christianity, the question whether he still retained the custom
of polygamy is a question of fact, - its continuance is not
inconsistent with his conversion, but it can not be presumed,

112. Supra note 109.

 49

but must be proved. A native convert thus takes an

intermediate place between a Hindu and a European
Christian, but he has the right to join either the former or the
latter, whether he chooses to retain or reject polygamy as a
part of his creed. There is, however, a dictum of Wilson, J., in
a full Bench case of the Calcutta court which points to a
different conclusion. In that case the parties were also East
Indians, but there was nothing to suggest that they were of
Hindu or Mahomedan origin. On the contrary, their names
suggested a Portuguese's origin. 113 The petitioner A sued B for
the restitution of conjugal rights. B pleaded the invalidity of
his marriage with A, on the ground that he had been
previously married to A's sister since deceased. It was proved
that B had formally married A's sister, while she was on her
death bed and with whom he had previously formed an illicit
connection. A's sister died in 1871 and the respondent
married A in 1877. On haring B's defence A amended her
plaint by claiming either the restitution of conjugal rights or
the nullity of her marriage with B and the question depended
upon the status conferred on A by her marriage with B, in
view of the fact that she was proved to be B,s deceased wife's
sister.
The question was referred to the Full Bench, for whom
Wilson, J., delivered the judgment. He held the English
common Law as the statutory prohibition inapplicable to
Christians domiciled in India and not of European origin,
whom he held to be bound only by the customary law of the
class to which they belonged. 114 This is in entire harmony with

113. Lopez v. Lopez, ILR 12 Cal 706 at 720, 731 (F.B.).

114. Ibid.
50

the view of Innes, J., before referred to. 115 But in

distinguishing the judgment of Lord Kingsdown, 116 he
permitted himself to say: 'And we do not suppose the law
could permit native converts (if one can imagine their desiring
such a thing) to choose for themselves some marriage law
wholly repugnant to Christian ideas, converts from Hinduism,
for instance to retain their former right to marry more wives
than one, or convets from Mahomedanism their former
freedom of divorce'. 117 But as to this all that need to be stated
here is, that whatever may be the intention of law against
polygamy among Christians there is at present no law
prohibiting it, and if Christian converts from polygamous
creeds desire to continue polygamy, their conversion to
Christianity of itself offers no effective impediment, how much
so ever distasteful such a course may appear to the more
enlightened members of that community.
(i) Conversion from Hinduism :
According to Hindu law an apostate is not absolved from
all civil obligations, the matrimonial bond remaining
indissoluble. But now by the Hindu Marriage Act, 1955,
Section 13(1) (ii), a Hindu can obtain a divorce. A non
Christian marriage is not dissolved by the mere fact of the
conversion of one or both of the parties to Christianity. 118
Hindu law does not recognize polygamy on the part of a
woman. A Hindu married woman who having a Hindu
husband living marries a Mahomedan 119 or a Christian 120 even

115. 3 M.H.C.R. (App). 7.

116. Supra note 109.
117. Ibid.
118. Ramkumari (1891) 18 Cal 264; Massumat Gholam Fatima (1870) PR
No. 32 of 1870.
119. Government of Bombay v. Ganga (1880) 4 Bom 330; Budansa Rowther
v. Fatima Bi, AIR 1914 Mad 192; (1914) MWN 278: 26 MLJ 260; Mst.
Nandi, AIR 1919 Lah 389: (1919) 20 Cri.LJ 3 (Lah) See Jamma Devi v.
Mul Raj (1907) PR No. 49 of 1907.
 51

after becoming a Mahomedan or Christian, as the case may be

commits bigamy. The Calcutta High Court held in a case that
a Hindu married woman can after adopting Mahomedan ask
her Hindu husband to become Mahomedan or apply to a
competent court for dissolution of her marriage. If this is done
she can marry without being guilty of any offence. 121 This view
was subsequently dissented from in another case in which it
was held that a marriage solemnized in India according to
personal law could not be dissolved according to another
personal law, simply because one of the parties had changed
his or her religion. 122 A special Bench of the Calcutta High
Court after reviewing all the authorities has held that the rule
of Mahomedan Law that if one of the married parties adopts
Mussalman faith in a foreign country, the marriage is
automatically dissolved if the other spouse does not also adopt
the same faith before the completion of three menstrual
periods, does not apply to the case of non-Muslim nationals of
a country whose state religion is not Islam, e.g. India. A Hindu
wife who has embraced Islam since her marriage but whose
husband has not done so although three menstrual periods
have elapsed since the conversion is not entitled to a
declarations that in the circumstances the marriage stands
dissolved under the Mahomedan law. Under Hindu law, the
apostasy of one of the spouses does not dissolve the
marriage. 123

120. Millard (1887) 10 Mad 218; Gobardhan Das v. Jasadamoni Dassi

(1891) 18 Cal 252. Such a marriage can only be dissolved under the
provisions of the Indian Divorce Act, 1869.
121. Mustt Ayeshabibi v. Bireshwar Ghosh, (1929) 33 CWN clxxix; Ayesha
Bibi v. Subodh Ch Chakrabarty (1945) 49 CWN 439.
122. Sayeda Khaton v. Obadiah M (1945) 49 CWN 745.
123. Raveya Bibi v. Anil Kumar (1948) 2 Cal 119.
52

In the case of Amar Nath v. Amarnath (Mrs.) 124 the

Lahore High Court has held that the nature and incidence of a
Vedic marriage bond between the parties are not in any way
affected by the conversion to Christianity of one of them and
the bond will retain all the characteristics of a Hindu Marriage
notwithstanding such conversion unless there shall follow
upon the conversion of one party, repudiation or desertion by
the other, and unless consequential legal proceedings are
taken and a decree is made as provided by the Native Converts
Marriage Dissolution Act, (1866). The Nagpur High Court has
also held that the conversion of a Hindu wife to
Mohamedanism does not ipso facto dissolve her marriage with
her husband; she cannot during his life-time, enter into a
valid contract of marriage with another person. Hence, a
person having sexual intercourse with a Hindu wife converted
to Islam, knowing that she was a married woman, commits
adultery whether it was with or without her consent. 125 Where
the accused, belonging to a scheduled caste, had converted
himself to Buddhism and contracted a second marriage, and
the prosecution was successful in proving that both the
marriages had been performed according to customary rites
and the second marriages had been performed according to
customary rites and the second marriage had been contracted
while the first was subsisting, the accused was rightly
convicted and sentenced for offences punishable under
Section 494 and 109, Indian Penal Code, 1860. 126

124. (1946) 49 PLR 147 (FB).

125. Gul Mohammad, AIR 1947 Nag 121.
126. Bibi v. Jayant Mahadeo Jagtap, 1981 Mah LJ 614.
 53

In Sarla Mudgal v. Union of India, 127 after considering a

number of decisions on the point, the Supreme Court held
that the second marriage of a Hindu husband after embracing
Islam is violative of justice, equity and good conscience. Such
marriage would also be void and attract the provision of the
Section 494. The Court observed :
Since it is not the object of Islam nor is the
intention of the enlightened Muslim community
that the Hindu husbands should be encouraged to
become Muslim merely for the purpose of evading
their own personal law by marrying again, the
courts can be persuaded to adopt a construction of
the laws resulting in denying the Hindu husband
converted to Islam the right to marry again without
having his existing marriage dissolved in
accordance with law. 128

As regards the logic by which a married non-Muslim's

second bigamous marriage contracted after conversion to
Islam could be treated as void under the Hindu Marriage Act,
1955, the court observed as follows :
It is, no doubt correct that the marriage solemnized
by a Hindu husband after embracing Islam may not
strictly be a void marriage under the Act because
he is no longer a Hindu, but the fact remains that
the said marriage would be in violation of the Act
which strictly professes monogamy. The expression
'void' for then purpose of the Act has been defined
under Section 11 of the Act. It has a limited
meaning within the scope of the definition under
the section. On the other hand the same expression
has a different purpose under Section 494, Indian
Penal Code, 1860, and has to be given meaningful
interpretation. The expression 'void' under Section
494, Indian Penal Code, 1860, has been used in the
wider sense. A marriage which is in violation of any
provisions of law would be void in terms of the

127. 1995 Cri.LJ 2926 (SC): (1995) 3 SCC 635: 1995 SCC (Cri) 569: AIR
1995 SC 1531.
128. Id., at 2932.
54

expression used under Section 494, Indian Penal

Code, 1860. A Hindu marriage solemnized under
the Act can only be dissolved on any of the grounds
specified under the Act. Till the time a Hindu
marriage is dissolved under the Act none of the
spouses can contract second marriage. Conversion
to Islam and marrying again would not, by itself,
dissolve the Hindu marriage under the Act. The
second marriage by a convert would therefore be in
violation of the Act and as such void in terms of
Section 494, Indian Penal Code, 1860. Any act
which is in violation of mandatory provisions of law
is per se void. The real reason for the viodness of
the second marriage is the subsisting of the first
marriage which is not dissolved even by the
conversion of the husband. It would be giving a go-
by to the substance of the matter and acting
against the spirit of the state if the second marriage
of the convert is held to be legal.' 129

The court further observed that the second marriage of

an apostate-husband married under the Hindu Marriage Act,
1955, would be in violation of the rules of equity, justice and
good conscience, as also those of natural justice. The Supreme
Court concluded that :
The interpretation we have given to Section 494,
Indian Penal Code, 1860, would advance the
interest of justice. It is necessary that there should
be harmony between the two systems of law just as
there should be harmony between the two
communities. The result of the interpretation, we
have given to Section 494, Indian Penal Code,
1860, would be that the Hindu law on the one hand
and the Muslim law on the other hand would
operate within their respective ambits without
trespassing on the personal laws of each other'. 130

In a separate judgment given in the Sarla Mudgal case

Justice R.M. Sahai indeed spoke the truth when he said that
'much misapprehension prevails about bigamy in Islam.'

129. Ibid.
130. Ibid.
 55

Grossly caricatured now, the Qur' anic concept of bigamy

envisaged two women happily married to the same man and
getting from him equally all that a lawfully wedded wife could
rightfully expect from the husband. Where this was not
possible, the Qur'an enjoined monogamy. While the Qur'anic
norms must be strictly observed also by born Muslims, the
popular beliefs that the Qur'an enables a non-Muslim
husband who has kicked out his wife without a legal divorce
to marry again by announcing a sham conversion to Islam is
absolutely false. Derecognizing bigamous marriages of non-
Muslim husbands contracted in such a fraudulent manner
indeed enforces Qur'anic justice. On this point the Sarla
Mudgal ruling of the Supreme Court is unassailable. 131
In Lily Thomas v. Union of India, 132 an apprehension
expressed that in view of judgment of Sarla Mudgal, men
having undergone second marriage under Muslim law after
conversion would be liable to be convicted without any further
proof, was held to be without substance inasmuch as the
person seeking conviction of the accused for a commission of
offence under Section 494, is under a legal obligation to prove
all the ingredients of the offence charged and conviction
cannot be based upon mere admission made outside the
court. To attract the provisions of Section 494, the second
marriage has to be proved besides proving the previous
marriage. Such marriage is further required to be proved to
have been performed or celebrated with proper ceremonies.
The Sarla Mudgal ruling was looked with disfavour in
certain circles on the ground that it infringed a person's

131. Law Commission of India, 36, Report No 227, August 2009.

132. 2000 Cri.LJ 2433: (2000) 6 SCC 224: 2000 SCC (Cri) 1056 : AIR 2000
SC 1650.
56

fundamental rights of freedom of conscience and profession of

religion guaranteed by Article 25 of the constitution. The
matter was brought before the Supreme Court which
dismissed the idea. In Lily Thomas v. Union of India, 133 the
court observed :
The grievance that the judgment of the court
amounts to violation of the freedom of conscience
and free profession, practice and propagation of
religion is also far-fetched and apparently
artificially carved out by such persons who are
alleged to have violated the law by attempting to
cloak themselves under the protective fundamental
rights guaranteed under Article 25 of the
Constitution. No person, by the judgment
impugned, has been denied the freedom of
conscience and propagation of religion…. Freedom
guaranteed under Article 25 of the Constitution is
such freedom which does not encroach upon a
similar freedom of other persons. Under the
constitutional scheme every person has a
fundamental right not merely to entertain the
religious belief of his choice but also to exhibit this
belief and idea in a manner which does not infringe
the religious right and personal freedom of others.
It was contended in Sarla Mudgal's case that
making a covert Hindu liable for prosecution under
the Penal Code would be against Islam, the religion
adopted by such person upon conversion. Such a
plea raised demonstrates the ignorance of the
petitioners about the tenets of Islam and its
teachings'. 134

The rule of monogamous marriage among Hindus was

introduced with the proclamation of Hindu Marriage Act,
1955. Section 17 of the said Act provided that any marriage
between two Hindu solemnized after the commencement of the
Hindu Marriage Act, 1955, shall be void if at the date of such
marriage either party had a husband or wife living, and the

133. Ibid.
134. Id. at 2449.
 57

provisions of Section 494 and 495 of the Indian Penal Code,

1860, shall apply accordingly. The second marriage
solemnized by a Hindu during the subsistence of first
marriage is an offence punishable under the Penal Law.
Freedom guaranteed under Article 25 of the constitution is
such freedom which does not encroach upon a similar freedom
of the other persons. Under the constitution scheme every
person has a fundamental right not merely to entertain the
religious belief of his choice but also to exhibit his belief and
ideas in a manner which does not infringe the religious rights
and personal freedom to others. 135
Making a convert Hindu who has taken second wife after
conversion liable for prosecution under Section 494, Indian
Penal Code, 1860, is not against Islam, the religion adopted by
such person upon conversion. Saying that it would be against
Islam demonstrates the ignorance about the tenets of Islam
and its teachings. The concept of Muslim Law is based upon
the edifice of Shariat. Muslim Law as traditionally interpreted
and applied in India permits more than one marriage during
the subsistence of one and another though capacity to do
justice between co-wives in law is condition precedent. Even
under the Muslim Law plurality of marriage is not
unconditionally conferred upon the husband. 136 It would,
therefore, be doing injustice to Islamic law to urge that the
convert is entitled to practice bigamy not withstanding the
continuance of his marriage under the law to which he
belonged before conversion. The violators of law who have
contracted the second marriage can not be permitted to urge
that such marriage should not be made subject-matter of

135. Supra note 40 at 4554.

136. Ibid.
58

prosecution under the general Penal law prevalent in the

country. 137
(ii) Conversion after marriage under Special Marriage
Act, 1954 :
Where a marriage is solemnized under the Special
Marriage Act, 1954, and both husband and wife subsequently
become converted to Islam, the marriage not being one in the
Mahomedan sense cannot be dissolved in the Mahomedan
manner. It can only be dissolved under the provisions of the
Indian Divorce Act, 1961. The same principle applies even
when one of the parties alone becomes a convert to Islam. 138
Where a Muslim man marries under the Special Marriage
Act, 1954, the restitution of conjugal rights, judicial
separation, nullity and divorce must be in accordance with the
Special Marriage Act, 1954. If such a person again contracts a
second marriage, he shall be deemed to have committed an
offence under Section 494, Indian Penal Code, 1860. 139
(iii) Conversion from Mahomedanism :
A Mahomedan who becomes an Ahmediyan (a caste of
Mahomedans) does not become an apostate and his wife is
guilty of bigamy if she marries another during his life time. 140
A Mahomedan marriage was immediately dissolved on one of
the parties to that marriage renouncing the faith of Islam. 141

137. Lingri Obulamma v. L. Venkata Reddy, AIR 1979 SC 848; Baby v.

Jayant Mahadeo Jagtap, AIR 1981 Bom 283, 293; Gopal Anand
Musalgaonkar v. State of Madhya Pradesh, (1976) 2 Cri.LJ 1335, 1976
Jab. L.J. 201, 1976 MPLJ 284; Lily Thomas etc. v. Union of India &
Ors., 2000 Cri.LJ 2433 (SC); D. Vijyalkashmi v. D. Sanjeeva Reddy,
2001 Cri.LJ 1583 (Andhra Pradesh).
138. Andal Vaidyanathan v. Abdul Allam Vaidya (1947) Mad 175.
139. S. Radhika Sameena v. SHO, Habeebnagar Police Station, 1997 Cri.LJ
1655 (AP).
140. Narantakath Avullah v. Parakkal Mammu, AIR 1923.
Mad 171: (1923) 24 Cri.LJ 986 (Mad): (1922) 45 Mad 986.
141. Karan Singh, AIR 1933 All 433: (1933) 34 Cri.LJ 869 (All).
 59

But under the Dissolution of Muslim Marriage Act, 1939 the

renunciation of Islam by a born Muslim married woman or her
conversion to a faith other than Islam does not dissolve her
marriage (Section 4). She can, however, obtain a decree for the
dissolution of her marriage on any of the grounds mentioned
in Section 2. 142
(a) Marriage during Iddat:
In a case Bombay Sessions Court held that a
Mahommedan woman marrying again during the life time of a
husband who had divorced her but within the period of Iddat
was not guilty of bigamy. 143 The Calcutta High Court holds the
same view. It has laid down that under Mahomedan law, the
marriage of a man, who subsequently embraces Christianity,
becomes ipso facto void, notwithstanding his reconversion to
Islam during the period of Iddat; and the wife, in contracting a
second marriage during such period, does not commit bigamy
under Section 494, Indian Penal Code, 1860. A second
marriage contracted by the wife during the period of her iddat
is not void by reason of its taking place during the life of the
first husband but by reason of a special doctrine of the
Mahomedan law with which the Indian Penal Code, 1860, had
nothing to do. 144
(b) To Repudiate the Marriage by Minor Mahomedan Girl:
Under the Mahomedan Law, when a child is given in
marriage by any person other than the father or grandfather,
he or she has the option of either ratifying it or repudiating it
on attaining puberty. This is called the Khyar-ul-bulugh, or
option of puberty. Under the Shiah Law such a marriage is of

142. The Dissolution of Muslim Marriage Act, 1939.

143. Sabina (1907) 9 Bom LRJ 207.
144. Abdul Ghani v. Azizul Huq (1911) 39 Cal 409.
60

no effect and produces no legal consequences until it has been

ratified by the minor upon his or her attaining majority. The
Shafees agree with the Shiahs in this view. There is no
evidence in this case show to which sect the girl belongs.
Assuming, however, that she is a Hanafi sunni, how would be
matter stand? The only difference between the Sunni and the
Shiah Law on the question of option of puberty is that
whereas according to the latter school a marriage contracted
for a minor by a person other than the father or grand-father
is wholly ineffective until it is ratified by the minor on
attaining puberty, according to the (Hanafi) sunni School it
continues to be effective until it is cancelled by the minor. 145
Both Schools give to the minor an absolute power either to
ratify or to cancel the unauthorized marriage. The (Hanafi)
Sunni Law presumes ratification when the girl after attaining
the age of puberty has remained silent and has allowed the
husband to consummate the marriage. In the present case the
man to whom the girl is said to have been married was in jail
when she attained puberty. It was not necessary for her,
therefore, to signify her assent or dissent. After attaining
puberty she entered into a contract of marriage with the
second accused. This is sufficient indication in my opinion
that she never ratified the unauthorized marriage, which was
never consummated. 146
B, a Mahomedan girl, whose father was dead, was
alleged to have been given in marriage by her mother to J,
some years before she attaining puberty. Prior to her attaining
puberty, J, was sentenced to a term of imprisonment for theft.

145. Supra note 15 at 2425.

146. Badal Aurat (1891) 19 Cal 79, 82; Rahmat Ali v. Mst. Allah Ditti
(1929) 11 Lah 172; Abdul Karim v. Amina Bai (1934) 37 Bom LR 398.
 61

While he was in jail, B after she had attained puberty,

contracted a marriage with P. The marriage with J was never
consummated. On J Being released from Jail, he proceeded to
prosecute B and P for bigamy and abetment of bigamy, and
also charged P with adultery. It was held that B and P had not
committed any offence, because, assuming that B was
properly married to J by B's mother when B was a child, B
had the option of either ratifying or repudiating such marriage
on attaining puberty. 147 Where a minor, a Mahomedan girl,
before attaining puberty, entered into a contract of marriage
arranged by her father, who did not formally appear as her
guardian at the time of the marriage, she could on attaining
puberty, exercise her option of a repudiating that marriage
under the Mahomedan Law provided no circumstances be
present which would disentitle her to the exercise of that
right. 148 It is not necessary for repudiation by a Mahomedan
minor girl, or her marriage, which has not been consummated,
and which has not been performed by her father, on her
attaining puberty, that the repudiating should be something
akin to oral repudiation before witnesses. Marrying some other
man, on attaining puberty, is enough to constitute
repudiation. 149
Where the first marriage of minor girl had never been
consummated and she repudiated that marriage on attaining
puberty within the period allowed by law, to the knowledge of
her husband, it was held that the option of puberty was

147. Ghulam Mohammad (1932) 33 PLR 1062: (1933) 34 Cri LJ 77. See
Nainsukh (1874) 1 OD44 where the court held if a child marriage was
not consummated by cohabitation a civil action for damages would lie
but not a prosecution under this Section.
148. Jay Gunnessa Bibi v. Mohammad Ali Biswas, AIR 1938 Cal 71: (1938)
1 Cal 139.
149. Shafi-ullah AIR 1934 All 589: (1934) 35 Cri.LJ 1053 (All).
62

validly exercised and the first marriage could not be deemed to

subsist at the time of her second marriage for the purposes
Section 494, Indian Penal Code, 1860. Moreover, under the
Muslim Law the second marriage could not be 'void' by reason
of its taking place during the life of the previous husband but
would be of the nature of shubbat-ul-akd under Muslim
Law. 150
Where a woman is empowered to divorce herself in
specific contingencies and she exercises such power, a valid
divorce takes place and if she marries subsequently no offence
under Section 494, is committed. 151 But, a unilateral
repudiation of marriage by the first accused, a Muslim Lady,
by faskh has no legal sanction and in spite of the alleged
faskh, the first marriage was subsisting. A second marriage by
her would attract the application of Section 494. 152
(iv) Conversion of Indian Christian to Mahomedanism :
The question whether Indian Christian who became
converted to Mahomedanism could take a second wife arose in
the case of Datta v. Sen. 153
Henderson J., in Datta v. Sen said :
That in connection with marriage the personal law
must be applied. In the case of Advocate-General of
Bombay v. Jimhabai, 154 Beaman, J., said this : 'on
conversion to Mahomedanism, converts, no matter
what their previous religion may have been, must
be taken at that moment to have renounced all
their former religious and personal law in so far as
the latter flowed from and was inextricably bound
up with their religion and to have substituted for it
the religion of Mahomedan with so much of the

150. Muhammad Baksh v. Crown, (1950) 51 Cri.LJ 1169 (Lah).

151. Suroj Mia v. Abdul Majid, AIR 1953 Trip 6: 1953 Cri.LJ 1504 (Trip).
152. Moyin KC v. Nafeesa, AIR 1973 Ker 176: 1972 KLT 785: 1972 Ker LJ
807: 1972 Ker LR 562:
153. ILR (1939) 2 Cal. 12.
154. ILR (1915) 41 Bom. 181 at 196.
 63

personal law as necessarily flows from that

religion'. After his conversion Dukhiram was
governed by the Mahomedan law. There can be no
question that under that law he was entitled to
contract a valid marriage with Alfatanessa. It
would, therefore, be a serious thing to say that
such a union was a mere adulterous connection. In
our view, as he was entitled to contract this
marriage under the Mahomedan law, it must be
held to be a valid marriage unless there is some
statute which invalidates it. Mr. Sen was not able
to put forward any such provision: nor can we find
anything either in Act XV of1872 or in the Indian
Divorce Act which would expressly invalidate this
marriage. The result is that, in our opinion,
Dukhiram did contract a valid marriage with
Alfatanessa."

Such authority is entitled to great weight, particularly in

questions of the validity of marriage celebrated in accordance
with the laws of the country where it is celebrated. 155
Ceylon is a country of many races, many creeds and has
a number of marriage ordinances and Acts. The position there
is similar to that in the former territories of British India
where, as was pointed out by Chagla, J., in Robasa Khanum v.
Khodadad Bomangi Irani: 156 In matrimonial matters there is no
one law which applies to persons domiciled in British India;
they are governed by their personal laws which differ from
community to community.
In countries like India and Ceylon there must be an
inherent right in the inhabitants domiciled there to change
their religion and personal law and so to contract a valid
polygamous marriage if recognized by the laws of the country

155. Attorney – General of Ceylon v. Reid, (1965) 1 All. E.R. 812 at 817.
156. AIR 1947 Bom 272.
64

notwithstanding an earlier marriage. If such inherent right is

to be abrogated, it must be done by statute. 157
(v) Conversion from Christianity :
The Madras High Court once held that a Hindu Christian
convert relapsing into Hinduism and marrying a Hindu woman
cannot be convicted of bigamy on the ground that he has
another wife living whom he married while a professed
Christian. 158 It was so held on the ground that the Hindu Law
allowed polygamy on the part of a husband. The same High
Court doubted the correctness of this ruling in a subsequent
case in which a Native Christian, having a Christian wife
living, married a Hindu woman according to Hindu rites
without renouncing his religion. The court held that he was
guilty of bigamy and expressed an opinion that it would have
made no difference even if he had renounced the Christian
religion before contracting the second marriage. 159
But in a later case, the former ruling is followed and the
latter dissented from. In the later case a Hindu convert had
married a Christian woman according to the rites of the
Roman Catholic religion. Subsequently, and during the
lifetime of his Christian wife, he reverted to Hinduism and
married a Hindu woman in accordance with the rites of the
class to which the parties belonged. It was held that he was
not guilty of bigamy. 160
A Christian can not by embracing Mahomedanism marry
a second time during the lifetime of his first wife. 161 The
Calcutta High Court has held that in the above case there was

157. Supra note 155.

158. Michael (1866) 1 Weir 563.
159. Lazar (1907) 30 Mad 550.
160. Antomy (1910) 33 Mad 371; Marthamma v. Munsuswamy, A (1951) 52
Cri.LJ 1085 (Mad). (1951) MWN 440.
161. Skinner v. Orde (1871) 14 MIA 309, 324.
 65

some doubt whether the parties were really converted to

Mahomedanism or merely pretended to be so in order that
they might take advantage of the Mahomedan law. A married
Christian domiciled in India, after his conversion to Islam is
governed by Mahomedan law, and is entitled, during the
subsistence of his marriage with his former Christian wife, to
contract a valid marriage with another woman according to
Mahomedan rites. 162 The accused, a Christian woman, who
had married a Christian according to Christian rites and
during the lifetime of her husband had become a Mahomedan
and married a Mahomedan according to Mahomedan rites was
guilty of an offence under Section 494, notwithstanding the
provisions of the Mahomedan law. 163 Whether a change of
religion, made honestly after marriage with the assent of both
spouses, without any intent to commit a fraud upon the law,
will have the effect of altering rights incidental to the
marriage, such as that of divorce, is a question of importance
and of nicety, not decided as yet. 164
If one of the parties to a marriage becomes Christian he
or she must get his or her marriage dissolved under the Native
converts Marriage Dissolution Act 1866, before marrying
again. 165
8. Bigamy and award of compensation :
In the case of Laxmi Devi v. Satya Narain, 166 the court
held that in absence of proof of Homa and Sapatapadi the
factum of second marriage can not be held to have been made

162. John Jiban Chandra Datta v. Abinash Chandra Sen (1939) 2 Cal 12.
163. Mussamat Ruri, AIR 1919 Lah 389: (191) 20 Cri.LJ 3 (Lah).
164. Robert Skinner v. Charlotte Skinner (1897)25 Cal 537, 546 (PC). Se
Noor Jehan v. Eugene Tiscenko (1941) 45 CWN 1047 on appeal (1941)
46 CWN 465.
165. Supra note 15 at 2432.
166. 1994 (31) All. Cr.C. 777 at p. 779 (SC): 1994 J.C.C. 621 at pp. 622,
623 (SC).
66

out, though it was concluded that the first respondent is

undoubtedly living with Vimla as Husband and wife, merely
because the appellant is not in a position to prove the factum
of second marriage punishable under Section 494, Indian
Penal Code, 1860, that does not mean that the appellant
should be left in the lurch. The Supreme Court quantified
compensation at Rs. 25,000/- to be paid by the first
respondent – accused to the appellant wife.
In the case of Ashoka Hurra v. Rupa Ashok Hurrarupa
Bipin Zaveri, 167 court observed that second marriage during
the pendency of proceeding comes under Section 494, Indian
Penal Code, 1860 and ordered of entire sum of repees ten lakh
by the appellant (Ashok Hurra) to the respondent, Rupa Ashok
Hurrarupa Bipin Zaveri.
(i) Interim Compensation :
Even during the pendency of criminal proceedings under
Section 494, the court can award interim compensation to the
first wife. 168
9. Concealment of the fact of first marriage while
contracting second marriage :
The offence under Section 495, Indian Penal Code, 1860,
is the aggravated form of bigamy punishable under Section
494, the circumstance of aggravation being the concealment of
the fact of the previous marriage to the person with whom the
second marriage is contracted. The concealment of any
information provided in the last clause of Section 494, is,
however, not punishable under Section 495. 169

167. (1997) 4 SCC 226.

168. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922: (1996)
1 SCC 490: 1996 SCC (Cri). 133.
169. Supra note 1 at 60.
 67

(i) Section 495 read as under :

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 description
for a term which may extend to ten years, and shall
also be liable to fine.

The sole point of difference between Section 495, Indian

Penal Code, 1860 and the next is the concealment of the
accused's previous marriage from the person with whom he
goes through the form of the second marriage. It is not
necessary that the concealment should have affected the
consent given to the second marriage, nor, indeed, is its
operation upon the mind of the other at all material, the only
point material being that he had concealed the fact of his
previous marriage. But this fact could not be lost sight of in
awarding punishment. For, if the non-disclosure was
immaterial it may have been equally unintentional, and if
unintentional there was no intention to deceive, and deception
is its underlying principle. 170
The authors of the Penal Code have justified the making
of the punishment more severe by illustrating the difference
made in the case where, in contracting a subsequent marriage
is contracted. They observed : The act which in the English
Law is designated as bigamy is always an immoral act. But it
may be one of the most serious crimes that can be committed.
It may be attended with circumstances which may excuse
though they cannot justify it. 171

170. Ibid.
171. Supra note 15 at 2446.
68

The married man who, by passing himself off as

unmarried, induces a modest woman to become, as she
thinks, his wife, but in reality his concubine, and the mother
of an illegitimate issue, is guilty of one of the most cruel fraud
that can be conceived. Such a man we would punish with
exemplary severity. 172
The law of England on the subject of bigamy appears to
us to be in some cases too severe, and in others too lenient. It
seems to bear a close analogy to the law of perjury. The
English law on these two subjects has been framed less for the
purpose of preventing people from injuring each other, than
for the purpose of preventing the profanation of a religious
ceremony. It, therefore, makes no distinction between perjury
which is intended to desory the life of the innocent, and
perjury which is intended to save the innocent', between
bigamy which produces the most frightful suffering to
individuals and bigamy which produces no suffering to
individuals, at all. We have proceeded on a different principle.
While we admit that the profanation of a ceremony so
important to society as that of marriage is a great evil, we
cannot but think that evil immensely aggravated when the
profanation is made the means of tricking an innocent woman
in to the most miserable of all situations. We have therefore
proposed that a man who deceives a woman into believing
herself his lawful wife when he know that she is not so and
induces her under that persuasion, to cohabit with him,
should be punished with great severity. 173
There are reasons similar, but not exactly the same, for
punishing a woman who deceives a man in to contracting with

172. Ibid.
173. Id. at 2447.
 69

her a marriage which she knows to be invalid. For this offence

we propose a punishment which, for reasons too obvious to
require explanation, is much less severe than that which we
have provided for a similar deception practiced by a man on a
woman'. 174
The authors of the Code intended to punish with greater
severity only the man who deceived a woman. But the Section
495, as it stands applies to either party.
(ii) Scope and Object of Section 495 :
Section 495 is an aggravated form of offence deal with in
the previous Section 494. It applies where the offence is
committed and the marriage is contracted concealing the fact
of prior marriage.
Section 495 provides a higher penalty when the fact of
the former marriage is concealed from the person with whom
the subsequent marriage is contracted.
(iii) Essential ingredients of Section 495 :
To constitute an offence under this Section, the following
essential ingredients must exist :
1) The accused had already been married to some person;
2) The said marriage was legal;
3) The person to whom the accused was married was alive;
4) The accused married another person;
5) The accused when marrying the second time concealed
from the person whom the accused married the fact of
the first marriage. 175

174. Ibid.
175. K.D. Gaur, Commentary on the Indian Penal Code, 1402, Edition,
2006.
70

(iv) Bigamy by Deceit :

Section 495, Indian Penal Code, 1860, merely prescribes
an enhanced punishment for the offence of bigamy when it is
committed by a person who conceals from the other person
with whom he contracts the second marriage the fact of his
previous marriage. Now, since the offence is in essence bigamy
it follows that all the elements necessary to constitute that
offence must be present here also. For instance, of the two
marriages, the previous marriage must have been a valid
marriage, and a marriage which was known to be a subsisting
at the time of the second marriage. If, therefore, the previous
marriage was invalid, or had been lawfully dissolved, its non-
disclosure is wholly immaterial, for the second marriage being
valid there is no offence of bigamy, and except in a
prosecution for bigamy the fact of such non-disclosure is
immaterial. 176
(a) Concealment of the former marriage :
Again, the Section 495, Indian Penal Code, 1860,
punishes for a concealment of the fact of the former marriage,
only when that marriage offers an impediment to the validity
of the subsequent marriage. Consequently, a person belonging
to a polygamous race, such as, for instance, a Mohammedan
would, ordinarily, be under no obligation to inform the fact of
his previous marriage to his subsequent spouse though in
such a case he may incur other penalty for his non-disclosure.
Suppose, for instance, a Mohammedan married man conceals
not only the fact of his marriage, but also his caste, from a
person in a place where he is unknown and where he
contracts a Christian marriage with a Christian woman from

176. Supra note 1 at 60.

 71

whom he conceals both his religion, as well as his previous

marriage. His second marriage is, of course, void, and could
not, therefore, be punished under Section 495, Indian Penal
Code, 1860, but it does not thence follow that he may not then
be punished for cheating, or under the provisions of the
Section 496, Indian Penal Code, 1860. 177
In the case of Narinder Pal Kaur Chawla v. S. Manjeet
Singh Chawla, 178 accused who was married, contracting
second marriage and concealed the fact of first marriage for 13
years. Second wife filed complaint under Sections 494 and
495 Indian Penal Code, 1860. The Trial court convicted the
accused and sentenced him to 4 years rigorous imprisonment,
and pay fine of Rs. 5000/- But Appellants Court reduced the
sentence to 14 days simple imprisonment by showing undue
sympathy on the ground that both the parties lived happily for
13 years, got the daughters and the daughters were now of
marriageable age and accused was 56/57 years old. Order of
appellate Court set aside is revision and sentence enhanced to
one year simple imprisonment and held :
(i) When wife came to know of fact she had dark
life. The pain, embarrassment and humiliation
faced by her since that point of time, cannot be
compensated in any manner.
(ii) By committing the offence accused has ruined
the remaining life of the petitioner. Her dreams
of happy married life have been shattered by
respondent No. 1 by marrying with her while
already having been married.

The question what amounts to the concealment of the

fact of the former marriage is evidently a question of Fact. For
there may be as such concealment by making a misleading

177. Id. at 61.

178. 2012 (3) RCR (Criminal) 544 (Delhi).
72

statement as by not making any statement at all. For

instance, a may say to B to whom he is engaged to contract a
second marriage: 'I was married to C but I am now a widower';
the fact being that C was still alive though A had separated
from her, and in fact C had not been heard of for seven years.
Could A be convicted for the offence under Section 495, Indian
Penal Code, 1860? It is clear that his liability under the last
section depends upon whether his statement is sufficient to
bring his case within the exception to that section. 179 But if it
is not, then he may be convicted under that section, though
he could not be under Section 495, Indian Penal Code, 1860,
because he had not concealed the fact of his previous
marriage, and it is all that is necessary to save his case from
his penalty. In order words, Section 495, Indian Penal Code,
1860, must be restricted only to cases where there has been
no mention made at all of the fact of the previous marriage,
the last section alone being applicable to other cases where
that fact is mentioned but explained away. 180
Again the criminality of the act necessarily admits of
decree. For instance, there is, no the one hand, the person
who knowing of the averseness of the other to marry him if the
fact of his previous marriage were known, conceals that fact
and so compasses the ruin of the person for whom marriage
was merely a trap; while on the other hand, there is a child of
tender years who is made to go through a second marriage by
her guardian, 181 neither of whom inform the husband of the
first marriage, in which case she could not be punished under

179. Supra note 2 at 4648.

180. Ibid.
181. Ibid.
 73

Section 495, Indian Penal Code, 1860. This was the view of
Parsons and Ranade, J.J., in a case in which the accused,
who was a child of ten, was re-married to the prosecutor by
her mother during the lifetime of her first husband, upon
which she was convicted under Section 495, Indian Penal
Code, 1860, but the court quashed her conviction on the
ground that she had not attained sufficient maturity of
understanding to judge of the nature and consequence of her
conduct on the occasion of her second marriage. 182
(b) Length of separation from the husband :
The question whether the gravity of this offence
depended upon the length of separation from the husband,
was considered in a case in which the accused re-married on
her husband having absented himself for sixteen months,
where upon she was convicted under Section 495, Indian
Penal Code, 1860, by Loch and Kemp, J.J., though Glover, J.,
was in favour of indulgence. 183 Here, the prisoner was the wife
of a tea garden coolie who used to absent himself daily for
long periods. During one such absence she contracted a
second marriage. She appears to have acted on a casual report
that her husband was dead, but she took no steps to ascertain
the truth of this report, nor did she believe it, for she neither
broke her bangles nor performed the other obsequial rights
customary in her caste. At any rate her second marriage was
not contracted in the bona fide belief of the death of the first
husband, and as she had failed to inform her second husband
of her previous marriage, the court convicted her under

182. Section 83; Godi, (1896) B.U.C. 876.

183. Enai Bibi, 4 W.R. 25.
74

Section 495, Indian Penal Code, 1860 and though it to be no

case for mercy. 184
By mere association of the accused persons, who are
charged for an offence of abetment of the principal affender, in
the absence of any material to show that there was an
instigation by the petitioner or that there was any intention
either in aiding or in commission of the offence, it can not be
said that they have committed an offence of abetment.185
Where the mother and the brother of the first accused, in a
case under Section 495, Indian Penal Code, 1860, for the
offence of bigamy, where merely passive witnesses of the
second marriage, they could not be held guilty of abetment of
the offence. But the first accused and his father who had
secured a false certificate from the village Munsif to the effect
that the first accused was not married previously and
produced the certificate to the temple authority where the
second marriage was performed were guilty of the offence
under Section 495 and Section 495/109, Indian Penal Code,
1860, respectively. The sentence of six months rigorous
imprisonment was upheld. 186
(c) Proof :
The points requiring proof are the same as those
required to prove an offence under Section 494, Indian Penal
Code, 1860, - except one point addition to which, prove –
1. That the accused had already been married. 187

184. Ibid.
185. Supra note 87.
186. Karuppiah Servai v. Nagavalli Ammal, 1982 Cri.LJ 1362 (Mad): 1982
MLJ (Cri) 19 : 1982 MLR 205 (Mad).
187. Usman v. Bhudhu Alias Abdullah, AIR 1942 Sind, 92 at 93; Mst. Hajul
v. Palio, AIR 1936 Sind 189 at 190; Emperor v. Pitamber Singh, ILR 5
Cal. 566 (F.B.); Arshed Ali, 13 C.L.R. 125; Empress of India v. Kallu,
 75

2. That such marriage was legal.

3. That the person with whom he was married was still
alive.
4. That the accused married another person.
5. That such subsequent marriages was void by reason
of it taking place during the life of the first consort.
Addition point to which, prove –
6. That the accused had, before his second marriage,
concealed from his spouse the fact of this previous
marriage. 188
It is well settled law that admission of marriage by
accused is not evidence of it for the purpose of proving
marriage in adultery and bigamy case. In Kanwal Ram v.
Himachal Pradesh Administration, 189 there was an admission
in some other proceeding wherein the accused had made a
statement. But if the admission of the marriage is in the same
proceeding it is evidence of the marriage. 190
10. Conclusion :
The offence of bigamy punishable under Sections 494
and 495, Indian Penal Code, 1860, materially differs from the
corresponding rule of English law, under which monogamy
being the universal practice, the rule is simpler. But under
Section 494, Indian Penal Code, 1860 the criminality of the
second or subsequent marriage depends upon the practice of
the caste or race to which the accused belongs. If polygamy or
polyandry was sanctioned by usage, one could not be

I.L.R. 5 All. 233; Nizair Khan, ILR. 36 All 1 (It may be proved
ceremony performed).
188. Supra note 1 at 62.
189. AIR 1966 SC 614: 1966 Cri LJ 472 (SC).
190. Supra note 186.
76

convicted for doing an act in conformity with custom – nor

could the law enforce monogamy upon people with the same
assurance as the abolition of suttee, since the one is by no
means as serious as the other. 191
From the days when a Hindu could marry as many wives
as he would like to and a Muslim can even now marry at a
time four wives, the society in recognition of the respectable
position of the women has reached a stage where monogamy is
the order of the day.
Polygamy is statutorily barred in the case of Hindus and
a recent decision of the Supreme Court would make it
economically impossible for a Muslim to marry more than one
wife. Equality of sex or eschewing sex discrimination needs
tightening up of law which prohibits second marriage in the
life time of the first spouse. There is a lacuna in Section 494,
Indian Penal Code, 1860, which prohibits bigamy. Whenever a
man is charged for having contracted a second marriage
within the life time of the first wife, the defence is that his
first marriage was void. In fact, once the first marriage is
consummated, the defence that first marriage was void must
be statutorily barred. To do gender justice, this is the next
inevitable step. 192
Bigamy is a serious offence and no leniency should be
shown. 193 However, while awarding sentence, the court may
take into account facts and circumstances of the case, such

191. Supra note 1 at 2.

192. Supra note 15 at 2418.
193. Gopal Lal, AIR 1979 SC 713: 1979 Cri.LJ 652 (SC) 1979 SCC (Cri)
401.
 77

as, fact of irretrievable break down of first marriage; 194 fact of

birth of a child by second wife; 195 long lapse of time between
the marriage and final disposal of the case; 196 the fact that the
accused is merely an abettor, 197 etc.
Where a woman who has been left largely to her fate by
her husband and has been living in adultery with a paramour,
marries that paramour, she is guilty only of a technical
offence and deserve only nominal punishment. 198 Where the
accused as a young peasant and his first marriage was in
disarray irreparably and he married a second time because of
the natural need of a comrade – at hand as also to help him
pursue his vocation of agriculture, the sentence of nine
months imprisonment was reduced to twenty-nine days
imprisonment already undergone but the sentence of fine was
increased from Rs. 200 to Rs. 2,000. 199 Where the accused was
found guilty under Section 494, but he was only a first
offender and there was nothing on record against his
character and antecedents and had also lost his job, the court
thought it proper to release him on probation under Section
4(1), probation of offenders Act, 1958. 200 Where the accused
was only twenty-two years of age and had been found guilty
for the offence under Section 494, but the accused had
appeared in the court and made a statement that he was
prepared to keep the complainant with him as his wife, the
second wife would not live with him and had also undertaken

194. Narotam, AIR 1978 SC 1542: 1978 Cri.LJ 1612 (SC): 1980 SCC (Cri)
113.
195. Anandrao, AIR 1972 SC 1232; Ashok Hurah (1997) 4 SCC 226.
196. Ananda (1993) Supp 3 SCC 68: 1993 SCC (Cri) 868.
197. Ibid.
198. Ritha, AIR 1926 Nag 127: (1926) 27 Cri.LJ 74 (Nag).
199. Darhsan Singh, 1982 HLR 4 (P&H).
200. Didar Singh (1983) 2 Crimes 144 (P&H).
78

not to do in future any act which might injure the relations

between him and his wife or which might amount to an offence
under law, it was held that it was a fit case in which the
accused be given an opportunity to become a better citizen
and should be released on probation for a period of one year
after entering into a bond with two sureties in the sum of Rs.
1,000 each. The High Court observed : 'The rationale of the
offence under Section 494 is to deter a spouse from breaking
the home by taking another spouse. Second marriage, where it
is prohibited by law, in effect amounts to disowning the first
marriage. If the accused is sent to jail the wrong will not be
remedied and the gap between the husband and wife will get
still more enlarged and will become unbridgeable. On the
other hand, if they live together, the wrong done to the wife
will get undone and the effect of the crime will be nullified'. 201
In Sarla Mudgal and Lilly Thomas the court expressed its
distress over the Governments failure in enacting a uniform
civil code to end discrimination among various religious
communities in the areas of marriage, succession and
property and observed that such a code would help in
removing contradictions based on religious ideologies and
such matters of secular characters can not be brought within
the guarantee enshrined under Articles 25 and 26 of the
Constitution of India. 202
The court rightly said that 'the period of 12 months
could not have been linked to the object of performing the
philanthropic act. It is high time a uniform civil code be
enacted at the earliest. The law makers should rise above

201. Sindhiya Devi, 1974 Cri.LJ 1403 (All): 1974 All Cr.C. 341.
202. Supra note 175 at 1401.
 79

party politics and fulfil the constitutional mandate given by

the framers of the constitution by enacting a uniform civil
code. 203 Even small countries like Singapore and Hongkong
have enacted uniform law where persons belonging to different
religious faith are living. 204
The Supreme Court of India settled the law once for all
in its Sarla Mudgal ruling of 1995 affirmed in Lily Thomas
case of 2000. We are in complete agreement with the thinking
of the Supreme Court. The verdict that a married non-Muslim
even on embracing Islam cannot contract another marriage
without first getting his first marriage dissolved is
undoubtedly in conformity with the letter and spirit of Islamic
law on bigamy.
In any case, this is now the inviolable law of India…
whatever one may erroneously presume the Islamic law to be.
Unfortunately this law as settled by the Supreme Court is
now widely known to the public at large and is being
constantly violated in numerous cases. The need of the hour,
therefore, is to turn to apex court's ruling in to a clear
legislative provision inserted into all matrimonial law statutes
of the country. 205
Though these rulings were handed down in the context
of the Hindu Marriage Act, 1955, they will apply to all
marriages governed by the other family – law statutes that are
Pari materia. 206
Therefore, the offence of bigamy should be made
cognizable offence and the recommendation of Malimath

203. Ibid.
204. Supra note 175 at 1399.
205. Supra note 131 at 40.
206. Ibid.
80

committee on reforms of criminal justice system should be

adopted by making a suitable amendment in Section 494 and
495, Indian Penal Code, 1860 and in the Code of Criminal
Procedure, 1973, it would certainly curb the offence of
bigamy. Most of the times the women are simply deserted, left
to fend for themselves and their children. The irony is that
despite the fact that progressive groups both within and
outside Muslim society in India do not favour bigamy,
religious leaders continue to block legislative reform.

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