If fact of first marriage was concealed from the spouse – term of imprisonment may extend to 10 years In Sarla Mudgal v UOI AIR 1995 SC 1531, the SC criticized the practice of conversion to Islam for the sake of contracting II bigamous marriage ‘coz that enables them to marry again without getting their first marriage dissolved.
The ruling was reaffirmed in the case of Lily Thomas v UOI AIR 2000 SC 1650. Also held: plurality of marriage is not unconditional right conferred on the Muslim husband. There is a precondition that he should have the capacity to do justice between the co-wives. Under Hanafi Law – 5 marriages are not void but merely irregular and can be regularized by divorcing one wife. Exception – a Sunni taking a 5th wife is not guilty of Bigamy u/s 494, 495 of IPC ( Shahumeedu v Subajda ( 1970)
But a Shia Husband who takes 5th marriage (where 5th marriage is void) can be prosecuted for bigamy. So, one who marries during the lifetime of his or her spouse commits an offence of bigamy – provided his first marriage is not null & void. In M. M. Malhotra v UOI AIR 2006 SC 80, Husband married a woman whose marriage was in subsistence but was void.
Hence, held subsequent marriage would not be bigamous. If former marriage is voidable, then also bigamy is committed. Varadrajan v State of Madras AIR 1965 SC 1964, Bigamy where requisite formalities of marriage have been performed at the time of the solemnization of II marriage. Priya v Suresh AIR 1971 SC 1153, held second marriage cannot be treated to be proved by mere admission of parties.
Performance of appropriate ceremonies is to be proved. Dr. D.N. Mukherji v State AIR 1969 All. 486, held: performance of some mock ceremony is not enough and, therefore, prosecution of bigamy will fail. So bigamous marriage is void under H, Christian and Parsi laws. Under SMA – declaration of nullity of marriage can be obtained by either party.
The spouse of 1st marriage has no right to file a petition for nullity. Remedy – is to file a declaratory suit to that effect u/s 34 of the Special Relief Act, 1963. Under Matrimonial law the spouse of 1st marriage may sue for dissolution on the ground that other party is living in adultery u/s 13 (1) (i) of HMA. Law Commission of India
In 227th report, given on 5th Aug.’2009, recommended in HMA after S. 17 ( punishment) S. 17 – A be inserted that a married person, who is governed by this Act cannot marry again even after changing religion, unless- i. 1st one is dissolved; or
ii. Declared null and void
In accordance with law.
And if such a marriage is contracted it will be null & void; and Shall attract application of S. 494,495 of IPC.
no defense can be taken in the charge of bigamy that it was a – i. in good faith; or
ii. mistake of law.
Only aggrieved party can complaint
But once case is filed State prosecutes the bigamous spouse. Should bigamy be permitted in some limited cases?
In Goa, Daman & Diu – during Portuguese rule Hindu Husband was permitted to take II wife during the lifetime of 1st one but – i. in specified cases
ii. With the consent of wife
Kane – (in History of Dharmashstra) suggested – it should be tolerated for some classes on economic grounds. Derrett also supports (Critique of Modern Hindu Law)
Some arguments hold good for polyandry also, but present writers do not support this view.
Courtney from Study Moose
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