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. The discussion below will clarify queries relating to the legal status of such an offence in India and parallel questions. Only man can be made liable for this offence. The mere keeping of a concubine or mistress is not sufficient to attract the penal consequences of this section as there is no marriage and the concubine does not enjoy the status of a wife. In case the person charged of bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be punished with imprisonment of up to 10 years or fine or both.
Such reasoning is quite contrary to the law declared by this Court in Reema Aggarwal Vs. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal 45 of 1860 Code shall apply accordingly. The first marriage should be valid as per the law. Bigamy is an offence against the institution of marriage. This Court while disposing of an appeal arising out of grant of special leave can make any order which justice demands and one who has obtained illegal order would not be justified in contending before this Court that in absence of any appeal against illegal order passed by the High Court the relief should not be appropriately moulded by the Court or that the finding recorded should not be upset by this Court. This is to keep a check on those who may use the shield of religion to engage into nefarious activities. Therefore, where both the parties to the second marriage had their previous spouses living at the time of the second marriage, both of them could file complaints separately and the same second marriage between both of them will have to be treated as resulting in two separate offences of bigamy; one offence in respect of each of them.
The difference between what court's perception and the law as it stands is - court says only if it is valid marriage then only it amounts to bigamy, and law says, even if it is void marriage, the subsequent marriage amounts to bigamy. The Supreme Court held that the marriage was not complete and thus there was no liability for bigamy. There is no manner of doubt that Amending Act of 1992 is on the subject which is already in existence in the Code of Criminal Procedure, 1973. When husband or wife has been absent continuously for a period of seven years- For contacting into second marriage the other party must have been continuously absent for a period of seven years but if the marriage takes place within seven under a bona fide belief based on reasonable grounds that the former consort is dead, no offence is committed. Section 17 of the Hindu Marriage Act has to be read in harmony and conjunction with section 494 of the Code. 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. There must be a husband or wife available at the time of.
Is proof required for lodging complaints under bigamy law? Under S 108 of the Indian Evidence Act, 1872 when it is proved that a man has not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, there is a presumption that he is dead. And a certificate of marriage obtained under section 16, Special Marriage Act, 1954 is also not a proof of marriage. The Kerala High Court has held that where it is established that the accused at the time of second marriage honestly and genuinely believed that the tie of his first marriage had been severed by a deed of divorce between the parties to the first marriage, and the parties under it had highlighted that they were living separately and it was impossible for them to live together and that they resolved to terminate their marriage and were free to marry again, the accused deserved benefit of doubt. However, you may seek divorce on grounds of adultery and immorality of your wife. They had liberty to marry again. The necessary ingredients of section 494 are: 1 having a husband or wife living; 2 marries in any case; 3 in which such marriage is void, and 4 by reason of its taking place during the life of such husband or wife. In short, when parties to a marriage get married under a particular personal law, the marriage will continue to be governed by the personal law under which they got married, irrespective of the fact that either of the spouses have converted to another religion.
Proof of actual marriage is always necessary; proof of marriage by cohabitation, reputation and other circumstances from which a marriage may be inferred is not sufficient. Moreover the court said that conversion for purposes of commission of an offence of Bigamy has no sacred purpose and it only makes mockery of Islam. What is the type and quantum of punishment prescribed for the offence? The effect of this provision is to make S 494 of the Penal Code applicable to Hindus. When men use that provision today, they do it for a selfish reason. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law. A second marriage performed before the Hidnu Marriage Act, 1955 came into existence does not attract penalty under section 494 of the Code.
In , it was held that while the first marriage is valid, the second marriage must have been properly solemnized according to the customs of the parties. Ultimately she returned to her parental home and gave birth to a female child. Similarly, where the accused who had been held guilty of bigamy appeared before the court and promised that henceforth he would have no truck with his second wife and that he would live with his first wife and would not violate the law, it was held that he must be released on probation. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union Law relating to a concurrent subject would be that the State Act will prevail in that State and overrule the provisions of the Central Act, in that State. Where marriage of the accused with the complainant was dissolved by a decree of divorce of a district court in Sweden and no appeal was preferred by the complainant, marriage of the accused with another lady after expiry of the period of appeal does not amount to bigamy.
They should be able to deal with them with confident, vigour and knowledge. It does not hinder the right to freedom of conscience, religion or profession of an individual. In 1860 when Indian Penal Code was framed, Bigamy was declared an offence under Sections 494 and 495 is punishable with fine and imprisonment of seven years or both. However, the court, in this case, held that the petitioner, a Muslim, could not be prosecuted under Section 494 of Indian Penal Code. Can be committed by either man or woman 1.
According to her, the petitioner who is Sub-Inspector of Police, cheated her and her parents by stating that his first wife had died after delivering two children who are studying and staying in a hostel, even though his first wife by name Sharda is very much alive and living with him at Avanthinagar near Erragadda and thus by making false and fraudulent representation, the appellant married with her at Yadagirigutta on 09. The High Court while uphelding his conviction considered certain facts including birth certificate of the son born to him from his second wife, which evidently proved his second marriage. Hindu Marriage Act, 1955 Section 17. If the marriage is not a valid marriage, it is no marriage in the eye of law. The point, whether a marriage is valid is essential to prove bigamy.
Justice Arijit Pasayat, has held as under:- 17. Admittedly, the victim in this case was the second wife of the petitioner who is said to have married her by suppressing the fact of his first wife living. The trial court decreed in favour of the second wife. It cannot be argued that because the wording of Section 494 is in the singular; it only refers to the marriage by a husband or a wife whose wife or husband is living at the time of the second marriage. The Supreme Court rejected the application saying that no person can be compelled to give sample of blood for analysis against his or her will and no adverse inference can be drawn against him or her for this refusal. The conclusion arrived at by the High Court is such as to shake the conscience and sense of justice and therefore it is the duty of this Court to strike down the finding recorded with respect to the offence punishable under Section 498A, irrespective of technicalities. Hence the fact of solemnization of subsequent marriage and the relevance of evidence relating to solemnization of subsequent marriage becomes irrelevant because the law does not demand that it be a valid marriage in order that the offender be punished.