This article on ‘Bigamy Laws in India: All you need to know‘ was written by Samar Jain, an intern at Legal Upanishad.
The Second Marriage, while the first marriage is in subsistence, is called Bigamy. In simple terms, Bigamy refers to the marriage of a second person while the first marriage is still in subsistence. The offence is committed when the first husband/wife is still in existence and is married to the wife/husband respectively. If the husband or the wife is alive, then the second marriage which is entered into by the parties is not legally valid and is thus void in the eyes of the law.
The practice of Bigamy has been in existence since time immemorial. For personal reasons, the king used to marry more than one single woman. This was the system that was in practice and was used by the rulers and the kings for the expansion of territory. This bigamy position although mentioned in the law is a common practice even today and thus there exists a stark difference between the law and social practice in existence, the result of which is that the second wife or the husband does not have been granted protection.
India is a vast country with a variety of cultural diversity, has an assorted mix of religions, castes, and beliefs of people, and hence the Constitution has been enacted in such a way that protection is granted to each Citizen. Thus, there exist some personal laws that govern the religions of different people.
The vital law which has been enacted for the prevention of Bigamy is the Indian Penal Code which has been mentioned in Article 494. The law states that whoever marries another during the lifetime of an already existing spouse, then such a marriage by the reason of its occurrence during the lifetime of such a husband or wife is to be viewed as a void marriage and is to be punished for such an offence. If any person enters into a marriage more than once during the lifetime of his first spouse, then he/she is to be punished with imprisonment which may extend to seven years, and shall also be liable to a fine.
Under the personal laws, as such, there are no provisions that have been enacted for the punishment of Bigamy or which declare Bigamy to be void.
Under personal law the provisions are as follows:
- Hindu Marriage Act, 1955- As per Section 17 of the Hindu Marriage Act, 1955, if a Hindu marries another person while his marriage with the first is still subsisting with either husband or wife, then that person is liable to be punished under The Indian Penal Code.
- Muslim Women (Protection of Rights on Divorce) Act, 1986- As per this act, there is as such specific provisions which in particular target Bigamy. A man belonging to the faith of Islam has the right to marry up to four women at the same time. The condition is that he should be competent enough to treat all of his wives in an equal manner. If he is not able to or fails to do so, then he is liable.
- Parsi Marriage and Divorce Act, 1936- As per Section 5 of The Parsi Marriage and Divorce Act, it has declared Bigamy to be null and void and also imposes at the same a penalty if the offence of Bigamy is committed. The Penalty is as per Sections 494 and 495 of The Indian Penal Code,1860.
- Christian Divorce Act, 1896- As per The Christian Divorce Act, 1896 as such there is no such provision for Bigamy however under Section 60 of The Christian Divorce Act, 1896, there is some provision that needs to be fulfilled before the marriage registration is fulfilled. The Condition is that at the time of the marriage registration, any party to the marriage should not be in an existing marriage. If the parties to marriage fail to give an oath or declaration to the same effect, then he/she is liable to be punished under Section 193 of The Indian Penal Code. Thus this provision explains that under The Christian Divorce Act, 1896 more than one marriage is illegal.
- Special Marriage Act, 1954- As per Section 44 of The Special Marriage Act, 1954, there is a provision that states that any person who commits the offence of Bigamy, then he/she is liable to be punished under Section 494 and 495 of The Indian Penal Code, 1860.
Punishment for Bigamy under the Indian Laws
In India, Bigamy is an offence that is Non-Cognizable. With the approval of the court, the offence can be termed to be a bailable and compoundable offence if the offence is committed under Section 494 of The Indian Penal Code. The punishment for the offence of Bigamy is imprisonment for a maximum term of 7 years or a fine or both in some cases. In case of commitment to the offence of bigamy, by hiding the fact of the first marriage, then in such a case the maximum imprisonment is for a period of up to 10 years or a fine or both in some cases. Under Section 495, this type of offence is not a compoundable offence.
The fact that a wife is being referred to as The Second Wife is in itself a Social Stigma and in the eyes of the society of India, the second wife and the first wife are not treated equally with the latter being given more respect. Under Indian laws, the second wife is not provided with much protection. However, the victims of bigamy as such can still approach the Courts to claim Maintenance.
In India, there exist 2 Major Criminal Laws In India: The Indian Penal Code and The Evidence Act. Under The Indian Penal Code, the first wife can file a case against her husband if he enters into a Second Marriage. Sections 494 and 495 relate to the provisions of Bigamy. Under The Indian Evidence Act, Section 114 the court is empowered to assume the presence of the probable facts about the conduct of humans and common sense and the common course of the events.
There is a social stigma that is attached to the second wife and along with the loopholes that are present in the law which can easily be used for the benefit of the husband and not grant women their protection, these women do not have proper care and protection. These women have suffered a lot right from having been cheated upon to having no legal rights for their protection. Thus, many provisions have been enacted for the protection of women and also to prevent Bigamy.
List of References
- Riddhi Goyal, Rights of the second wife in India, Sunday guardian, available at: https://www.sundayguardianlive.com/legally-speaking/rights-second-wife-india
- Prabhisha Pradeep, The Position Of Bigamy In Hindu Law, Legal Services India, available at: https://www.legalserviceindia.com/legal/article-5521-the-position-of-bigamy-in-hindu-law.html