1. Introduction
Marriages in our country are governed for different communities by their respective personal laws. Marriage according to the Hindu Law is regulated by the Hindu Marriage Act (HMA) of 1955, which defines marriage to be a holy sanskar (sacrament), unlike Muslim Law wherein a marriage is a contract. Since time immemorial, it was observed that Hindu men were allowed to indulge in polygamy, and the legislation imposed no specific conditions on the polygamist husbands, but on the other hand, women did not appear to have the same right. Furthermore, the British rulers left this aspect of Hindu law untouched despite of their many intrusions in other personal Hindu laws. It is only after the advent of independence that the legislature deliberated upon the issue and taking the Vedas into consideration which treated monogamy as the highest form of marital union, the anti-bigamy laws were enacted. Finally, the HMA managed to put a blanket ban on such a practice. All marriage laws, other than that of the Muslim personal laws, in our country prohibit bigamy. Yet, such a practice is prevalent, and the Hindu bigamists go scot free because, often more than not, the two wives are unaware of each other’s existence. This article thereby aims to analyze the shortcomings in the implementation of the provisions under the HMA and how a wider interpretation of the law is needed so that women involved are not exploited.
2. What is Bigamy?
Bigamy is defined to be an act where whoever having a husband or a wife living, marries another person. Section 494 and 495 of the IPC penalizes the act of bigamy. It is classified to be a non- cognizable, bailable and compoundable offence.
Section 494 criminalises the act of subsequently marrying another man or woman during the lifetime of the previous spouse, and the explanation further provides that the section wont apply in situations where the first marriage that was contracted was void or the previous spouse has been missing and unheard of for the last seven years. It provides for seven years of imprisonment and fine.
Furthermore, section 495 penalises the person who conceals the fact of existence of the previous marriage from the subsequent spouse with imprisonment for over ten years and fine.
The essentials for the act of bigamy were outlined in the case of Pashura Singh v. State of Punjab[1] as follows:
- The accused must have contracted the first marriage.
- He must have married again
- The first marriage must subsist
- The spouse must be living
3. What are the Legal Provisions under the HMA which deal with the Question of Bigamy?
- Section-5 (i): An essential condition of a valid marriage is that “neither party has a spouse living at the time of the marriage”
- Section 11: Violation of this section shall make the marriage null and void and liable to be so declared by a decree of nullity on a petition filed by either party against the other party. The section clearly states that “Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv) and (v) of sec 5.
- Section 17: This section criminalizes the practice of bigamy, read with Sec 494 and Sec 495 of IPC, 1860. Furthermore, effect of Sec 494 and 495 extends to all the marriages governed by – Special Marriage Act, 1954, Foreign Marriage Act, 1969, Christian Marriage Act, 1872 and Parsi Marriage and Divorce Act, 1936.[2]
4. Are People Exploiting the Loopholes?
4.1 Solemnisation of Marriage
As mentioned above, for the commission of the offence of bigamy, it is essential that the second marriage took place during the lifetime of the first spouse and as per the case of Bhaurao Shankar Lokhande v. State of Maharashtra[3], the Hon’ble Supreme Court clarified that – ‘whoever marries’ must mean ‘whoever marries-validly’. Thus, both the marriages should be performed in accordance with section 7 of HMA, fulfilling all the essentials.
The vast diversity of communities within the Hindu religion leads to a difference in procedures with regard to solemnization of marriage, as mentioned in Section 7[4] of the HMA. As per the section, a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Moreover, Section 7 (2)[5] also specifies that such rites and ceremonies will include the Saptpadi, and the marriage will be complete and binding only when the seventh step is taken, and this is where people have managed to misuse the provision by leaving a few ceremonies incomplete while solemnizing the second marriage, which further on makes the marriage invalid as observed in Kanwal Ram v. Himachal Pradesh Administration.[6] Herein, only the ceremonies of Suhag and brother of the bride bringing the bride to the house of the bridegroom were performed, leaving out the practice of puja and katha. Thus, it was held that the second marriage was not solemnized.
In Bhaurao v. State of Maharashtra[7], the Supreme Court yet again linked the anti -bigamy provisions of the act with the requirement of a ceremonial solemnization of marriages under Section 7(2)[8] of the HMA and held that due to incomplete performance or defective performance of the customary ceremony, the resulting marriage would be non-existent in the eyes of the law and hence, it will not attract anti-bigamy provisions of the act.
Thus, it is observed that the recognition given to the ceremonies of sacred fire and saptapadi have been misconstrued for their inclusion in the form of an essential condition for the solemnization of marriage, where instead, the intention to commit bigamy should have been enlisted as an essential clause. But, the court continues to focus on ‘conducting the ceremonies’ which makes the second marriage invalid, thereby providing for a loophole.
4.2 Conversion to Islam for Contracting Second Marriage?
Married men whose personal law did not allow bigamy have been resorting to the unhealthy and unethical practice of conversion to Islam for the sake of contracting a second bigamous marriage under the belief that such conversion will allow them to marry again without the dissolution of their first marriage.
In Vilayat Raj v. Sunila[9] it was held that the act would continue to apply to a person who was a Hindu at the time of marriage despite his subsequent conversion to Islam and that he could still seek divorce under the act (except on the ground of his own conversion).
This practice was then outlawed by the Supreme Court in Sarla Mudgal v Union of India[10]. It was observed by the court that such a marriage was violative of the principles of justice, equity and good conscience. Furthermore, emphasis was laid upon the need for harmonious working of the two systems of law (herein the Hindu personal laws and the Muslim personal laws), so as to bring harmony between the two communities. This not only gave a new dimension to the expression ‘void’ under S. 494 of IPC but also provided with a constructive approach towards the concept of apostasy and bigamy.
This was further reaffirmed five years later in the case of Lily Thomas v Union of India[11], wherein the previous judgement was reviewed by the hon’ble Supreme court on the grounds that it violated the fundamental right to life and liberty and to practice any religion. It was observed that the contention of the petitioner was far-fetched and is alleged by those who hide behind the cloak of religion to escape the law.
Even after the clarified position of law in such matters, one such case has recently emerged which depicted how a prominent politician, already a husband and father, took advantage of the shortcomings in the provisions of the act in order to authenticate his second marriage with a woman who happened to be a lawyer which is disheartening[12].
In another case a married man, an army physician of India serving in Afghanistan, converted to Islam in order to marry an Afghan Muslim girl serving him as an interpreter. The poor girl was kept in the dark about his marital antecedents and discovered the same only when, years later he returned to India, leaving her behind in Afghanistan[13].
Men who resort to such a practice are often oblivious towards the true essence of the Islamic law wherein, in case that the conversion is a sham, as in most cases, the second marriage is declared null and void. The holy Qur’an puts restrictions on bigamy and allows it only within certain limits, subjecting it to a strict discipline which emphasizes on the need to ensure that equal treatment is given to both the wives in all respects. Asserting that this may not be possible even with the best of intentions, the Holy Book at the same time advised men to keep to monogamy as “this would keep you away from injustice” (Qur’an, IV: 3 & 129). To this Qur’anic reform the Prophet added a highly deterrent warning: “A bigamist unable to treat his wives equally will be torn apart on the Day of Judgment.” This was the reform that the Islamic religious law could, and did, introduce in the 7th century AD.[14] It was in this regard when Justice R.M. Sahai spoke about how “much apprehension prevails about bigamy in Islam.” Therefore, in the instance that the conversion is genuine, the second marriage is valid only with the condition that both co-wives are subject to the bar of equal treatment, which is practically impossible and thus, in such a case too, the second marriage is repugnant according to Islamic law. Even the 227 report of law Commission of India[15] called such a practice of conversion in ill faith as “a fraud on Hinduism, a disgrace to Islam, a cruel joke on the freedom-of-conscience clause in the Constitution of the country and a criminal scheming against the law of the land.”
Moreover, in most of the Islamic nations, second marriages are held to be valid only with the consent of the first wife, be it Pakistan[16], Egypt or Iran
4.3 Bigamy and Live in Relationships
Live in relationships curtail an arrangement of cohabitation wherein two people live together in an emotionally and/or sexually intimate relationship for a long term or on a permanent basis. However, such relationships seem to be taking a negative turn, as married people are entering into such arrangements,
In the case of Indira Sarma vs VKV Sarma[17], the court has given the conditions for live-in relationships that can be given the status of marriage, thereby paving way for live-in relationships in our society.
This further gives rise to the question that when a live in relationship is indeed a “relationship like marriage” and is being given the same holding as a marriage, will this not violate the entire principle of ensuring monogamy in the society which was the intention of the legislature while criminalising bigamy and introducing it to be a ground for divorce?
In the recent judgement of Harpreet Kaur and anr. v. State of Punjab[18], the bench of Justice Ashok Kumar observed that if a married person is in a live in relationship, without obtaining a divorce from his/ her spouse, then that may amount to an offence under s494 of the Indian Penal Code.
The Parliament, thus, needs to come up with a new law so as to keep pace with the ever so changing society and its latest trends. Otherwise, people would begin to view the live-in relationships in a negative light.
5. Does this Affect the Women Involved?
The ongoing controversies surrounding bigamy hinges on the debate- the disposability of one wife for another and the ease with which men are able to evade the legal consequences of the act.
6. Position of the Second Wife
The patriarchal construct of the society has further invigorated the problem as the second wife has little to no rights. The Hindu Marriage Act does not provide for an equitable representation of the rights of the second wife in case of bigamy.
- In the instance that the second marriage is held invalid, the rights of the second wife are ignored, and she is not entitled to any support unless the husband and wife have been cohabiting for a long time. It is left to the discretion of the courts to grant any relief to the second wife in an invalid bigamous marriage. It could be disastrous if the judge is not susceptive to social realities while arriving at a decision.
- As per the Hindu law only the first wife is the legal heir of the husband, and the second wife will not be entitled to inherit any ancestral or self-acquired property in case the husband dies intestate. Furthermore, second wives are not entitled to maintenance due to the nullity of the marriage. It is, thus, abundantly clear that the term ‘second wife’ has a social stigma attached to it, and in the eyes of the Indian society, the second wife is not treated at par to the first wife.
Studies have reported a higher ratio of somatization, depression, anxiousness, aggression, psychoticism and psychiatric disorders where bigamy has occurred. The wives have additionally suffered with a reduced life, no marital satisfaction, a baffled family functioning and low self-worth[19].
7. Position of the First Wife
- In the case of Priya Bala Ghosh v. Suresh Chandra Ghosh[20], the Supreme Court ruled that responsibility of proving the second wedding is on the claimant, i.e., the first wife. However, as seen in most cases, the second marriage is often performed clandestinely. Thus, the expectation on the wife for proof of such a marriage is preposterous, especially when the husband is in a live-in relationship and has not legally married.
- As of now, no laws have been introduced where the wife can file a petition in the context of restraining a man to marry again.
- According to various RTI’s filed by the NGO’s it has been observed that very few wives report on the cases of bigamy and choose to accept the second wife due to lack of financial independence, fear of being abandoned by husband especially amongst the uneducated women and the social stigma surrounding the same.
Thus, we can conclude that closeted bigamy among Hindus is worse than the polygamy practised among the Muslims as at least the women in the latter condition are aware of the situation of their husbands. But often more than not, among the Hindus, wives are unaware of the multiplicity of marriages of their husband.
8. What Measures Can Be Taken to Prevent Bigamy?
- According to the report of the Law Commission of India[21], it has been suggested that a new Section 17-A be inserted after Section 17 in the Hindu Marriage Act, 1955 to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 186.
- A provision be inserted in the Special Marriage Act, 1954 such that, in the case an existing marriage, by whichever law it might be governed; if it becomes inter- religious due to change of religion by either party, it shall be governed under the Special Marriage Act, inclusive of its anti-bigamy provisions.
- The Code of Criminal Procedures, 1973, must be amended in order to make offences related to bigamy under Sections 494-495 of the Indian Penal Code, 1860, cognizable.[22]
- Instead of laying importance on the completion of religious rites and practices for the solemnization of second marriage, emphasis should be placed on the second marriage’s intention, which must be an essential.
- Awareness with regard to the true understanding of the Islamic law should be spread so that people are well aware of the true essence of the traditional interpretation of Islamic law, which in no way advocates bigamy.
- Moreover, in the case of bigamy, provisions must be made regarding inheritance rights of the second wife and legitimacy of the children born out of an invalid bigamous marriage to protect the rights of both women and children.
9. Conclusion
This article analyzed the various shortcomings of the Hindu Marriage Act in case of a bigamous marriage. Despite a ban on these marriages under the HMA, they have been prevalent in India. There is a need to broaden the horizon of interpretation of what constitutes a valid marriage and redeem the silences and gaps in the law so as to not provide any benefit to the offenders. The legislation must be reformed in such a way that it embodies the social realities of the present scenario.
- Written By: Saumya Juneja
- Edited By: Ayush Kumar
[1] Pashaura Singh v State of Punjab, AIR 2010 SC 922
[2] Hindu Marriage Act, 1955
[3] Bhaurao v. State of Maharashtra, AIR 1965 SC 1564
[4] Supra 4
[5] Ibid
[6] Kanwal Ram v. Himachal Pradesh Administration, AIR 1966 SC 614
[7] Supra 5
[8] Supra 4
[9] Vilayat Raj v. Sunila, AIR 1983 Del 351
[10] Sarla Mudgal v. Union of India (1995) AIR 1995 SC 1531
[11] Lily Thomas v. Union of India,(2000) 6 SCC 224.
[12] Report No. 227, “Preventing Bigamy via Conversion to Islam- A Proposal for giving Statutory Effect to Supreme Court Rulings”, Law Commission of India, August 2009. https://lawcommissionofindia.nic.in/reports/report227.pdf
[13] Ibid
[14] Ibid
[15] Ibid
[16] S6(1), Muslim Family Law Ordinance, 1961
[17] Indira Sarma v VKV Sarma, (2013) 15 SCC 755
[18] Harpreet Kaur and anr. v. State of Punjab, 9th April 2021
[19] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6998378/
[20] Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153
[21] Supra 17
[22] Supra 17
