I am Supriya Gill, a lawyer. This article describes bigamy, its punishment, how to prove it, and some case laws.
In India, second marriage without divorce which is also called as Bigamy, it is a criminal offence under Indian Penal Code(Section 494). Second marriage without divorce is punishable with imprisonment for a term which may extend to seven years and a fine. Also, such a marriage is considered to be void.
Bigamy is the act of marrying someone while still being legally married to another person. It is a criminal offence in many countries, including India.
A person who commits bigamy can be punished with imprisonment or fines. In India, Section 494 of the Indian Penal Code (IPC) deals with the offence of bigamy, and it is punishable with imprisonment which may extend to seven years and a fine.
Definition of second marriage without divorce
Second marriage without divorce is an act where a person marries again while still legally married to another person. It is Bigamy and a criminal offence under section 494 of the IPC.
A person commits an offence of Bigamy when he/she marries someone else without first obtaining a divorce from their previous spouse. Both marriages are considered valid by law, but since a person can only have one legal spouse at a time, the second marriage is considered illegal.
Bigamy is a non-bailable and non-compoundable offence, for this reason, the person committing bigamy may be arrested and cannot be released on bail and the case cannot be settled out of the court.
Legal standing in India of Bigamy (Second marriage without divorce)
Section 494 of Indian Penal Code: Bigamy
Section 494 of the IPC deals with Bigamy. Section 494 explains what bigamy is and criminalises the act of marrying again during the lifetime of a husband or wife. Section 494 also lays down some exceptions.
Essential Ingredients of Section 494 (Bigamy):
- The first marriage should be legal
- The second marriage should have taken place
- The first marriage should be existing
- The spouse must be alive
- Both marriages should be valid
Exceptions
- That the first marriage was declared null and void by the Court of competent jurisdiction.
- That the first spouse has been absent or not heard from continually for a period of seven years.
- But it is necessary that the party contracting the second marriage has informed the other party at such marriage about the fact of the first marriage.
- The first marriage has been dissolved by Divorce.
- The first husband or wife is dead.
This Section does not apply to Mohammedan males, who are allowed to marry more than one wife, but it applies to Mohammedan females.
Section 494 does not apply to persons belonging to Scheduled tribes.
Punishment of Bigamy (Second marriage without divorce)
Section 494 of the Indian Penal Code penalises Bigamy. The punishment of second marriage without divorce (Bigamy) under Section 494 is:-
- The imprisonment of either description for a term which may extend to seven years
- Fine as an additional punishment
- The offence under Section 494 of IPC is Bailable, Compoundable and Non-Cognizable.
The bail can be granted only by the Court, the offence cannot be compromised by the parties and the Police can make an arrest without a warrant.
How to prove the case of bigamy under Section 494 of the IPC?
To prove a case of second marriage without divorce (bigamy) under Section 494 of the Indian Penal Code, the prosecution should provide evidence to establish the following elements:
- That the accused person has a living spouse at the time of the second marriage.
- That the accused person entered into a second marriage while still being legally married to the first spouse.
- That the second marriage was performed with the knowledge that the first marriage was still valid and subsisting.
The burden of proof:
The burden of proof is on the Prosecution to prove the guilt of the accused beyond a reasonable doubt. The accused may also present evidence to support their innocence, such as evidence of annulment or divorce from the first marriage.
Case Laws On Bigamy (Second marriage without divorce)
1. Laxmi Devi vs. State of Maharashtra, 1994 SCC
It was held that where the performance of Vivahome and Saptapadi is not proved, the accused cannot be convicted for the offence under Section 494 of the Indian Penal Code.
The marriage to which Section 494 applies should have been celebrated with proper ceremonies and in due form.
2. Sarla Mudgal vs. Union of India (1995 AIR 1531 SC)
The Hon’ble Supreme Court in this Landmark judgement held that where a man converts his religion into Islam for the sole purpose of contracting a second marriage without legally divorcing his first wife, the marriage shall be regarded as void and illegal. He shall be punished under Bigamy as he would have been punished had he not converted his religion.
Conclusion
Bigamy (second marriage without divorce), as defined under Section 494 of the Indian Penal Code, is a criminal offence. It is the act of marrying again while still being legally married to another person.
The punishment for committing bigamy is a prison sentence of up to seven years and a fine. The section applies to both men and women and is bailable, compoundable and non-cognizable.
To avoid committing the offence of Bigamy, the person should ensure that he/she is legally divorced or has obtained a legal annulment of a previous marriage before entering into a new one.
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