SANAL P BHASKAR

Wednesday, 25 April 2012

BIGAMYTHE APPROACH OF LAW AND ITS IMPACT

BIGAMYTHE APPROACH OF LAW AND

ITS IMPACT
SANAL P BHASKAR
Sanalpbhaskar10@gmail.com
From time immemorial, in India, marriage has been
considered as a sacred thread between the man and the
woman. The concepts of marriage might have been changed
from time to time and place to place ,since India is a vast
nation, but it has been regarded as the sound basis of a family
which is the basic unit of the society and there by the nation.
Polygamy was prevalent in Indian society, though
monogamy was regarded as the ideal one. In our great epic
Ramayana, Sri Ramachandra was depicted and portrayed as an
ideal example of a man sticking to the ideal of having a single
wife [ekapatnivratham]by Adikavi Valmiki.
But instances of polygamous and polyandrous marriages
can be seen in our epics and Puranas by males and females
alike. There was no discrimination in this case also.
CODIFICATION OF HINDU LAWS
When we go through the pages of our Epics and Puranas
we can realize that both men and women had practiced bigamy
and polygamy alike. But times changed and perspectives along
with.
Soon after the commencement of the Constitution,
codification of Hindu Law was undertaken and that is all. One
comprehensive Hindu Code was suggested by Rao Committee.
But it was given up and four separate enactments were passed
in 1955 and 1956. The four separate statutes made great
departure from then existing law on the topics covered. (i) The
Hindu Marriage Act (1955) dealing with the law of marriage
and divorce, (ii) The Hindu Succession Act (1956) dealing
with succession, (iii) The Hindu Minority and Guardianship
Act (1956) dealing with the law relating to minority and
guardianship (iv) The Hindu Adoptions and Maintenance

Act (1956) dealing with adoptions and maintenance are the

enactments passed by our Parliament. These enactments are,
to some extent, a solace to the Hindu women folk who had
been the victims of so many evil practices prevalent in the
Hindu law. The practice of polygamy existed among Hindus
also. After the enactment, it has become a criminal offence and
punishable under Indian Penal Code. But, these evils are
allowable in Muslim community as per the provisions of Muslim
law. The condition of the women folk in the Muslim community
is pitiable, especially among the poor. The Muslim male can
pronounce 'Talaq' and leave his wife without any reason. The
Muslim male has an arbitrary power in it. Moreover, polygamy
is another evil practice. As per Muslim Law, there is no equal
status for Muslim female with Muslim male.
After these enactments, bigamy and polygamy
[polyandry] became offences under Hindu Laws. Now
monogamy is the order of the day. Indian Penal Code also
declares it. But, here also, there is a problem. The government
who took measures to codify the Hindu Laws had no courage to
touch the personal laws of other communities, especially of
Muslim community. That is secularism! Here, again , we can see
the dirty face of vote bank politics and appeasing the hunger of
fanaticism among the religious fanatics.
Article 44 of the Constitution of India states, the
government shall endeavor to establish a Uniform Civil Code in
India. But, even after the passing of six decades, there is no
trace of the establishment of such a Uniform Civil Code in India.
We have the examples of Mary Roys Case and Shah Banos
case before us. Here, in the present context, the intended topic
to discuss is bigamy and the attitude of law towards it since the
topic Uniform Civil Code has been discussed in another article
[Uniform Civil CodeNeed of the Hour], I am not intending to
say further about it.
So, bigamy became an offence after the enactment
of the Hindu Marriage Act, 1955. In India, Indian Penal Code
is the major criminal law. But Indian Penal Code is not
applicable to Jammu and Kashmir that has been declared as the
indivisible part of India! [That is the topic of another article.]
Section 17 of the Hindu Marriage Act says that bigamy is an
offence punishable under section 494 of the Indian Penal Code.
Chapter xx of the Indian Penal Code deals with Offences

relating to Marriage. Sections 493 to 498A deal with offences

relating to marriage. Among these sections, Section 494 deals
with bigamy.
Section 494 says that whoever having a husband or
wife living in any case in which such marriage is void by reason
of its taking place during the life of such husband or wife, shall
be punishable with imprisonment of either description for a
term which may extend to seven years, and shall also be liable
to fine.
So, it is seen that if a person marries again, during
the lifetime of his or her spouse, he or she commits the offence
of bigamy and shall be punished. This is applicable to both
men and women. It is stated specifically here since some
Sections in the Matrimonial Offences are only applicable to
men. Section 497 is an example to this. So also is the case with
Section 493 0f the Indian Penal Code. Section 497 deals with
adultery. Though the offence adultery can be committed only
with the consent and co-operation of a woman, [otherwise it
will amount to rape] woman is not punished as an abettor. Only
man is punished. EQUALITY BEFORE LAW! . Here if the leaf
falls on the thorn or vice versa, the wound occurs to the thorn!
That is another contradiction in the Indian Penal Code. Besides,
Section 375 is applicable to men only. This Section deals with
Rape. It seems that this is incorporated in the belief that only
men can commit rape and women cannot. But there are
arguments against this view. Whatever may be it, as per
Section 494, bigamy is an offence. But when we go through the
exceptions, we can realize the absurdity of this section.
This Section does not extent to
[1] Any person whose marriage with such husband or wife has
been declared void by a court of competent jurisdiction.
[2] any person who contracts a marriage during the life of a
former husband or wife, if such husband or wife, at the time of
the subsequent marriage, shall have been continuously absent
from such person for the space of seven years, and shall not
have been heard of by such person as being alive within that
time
provided the person contracting such subsequent
marriage takes place, inform the person with whom such
marriage is contracted of the real facts so far as the same are
within his or her knowledge.

It seems that the particular Section was incorporated

in the Indian Penal Code and Hindu Marriage Act, 1955,
mainly for the protection of women, though the Sections are
applicable to both men and women. But the very goal is
defeated because of the loop-holes and the adamant attitude
of the courts in applying the Sections in practice.
When we go through the concerned Sections in
Hindu Marriage Act, 1955, Indian Penal Code and Section 50 of
the Indian Evidence Act and landmarked cases in this regard, it
is evident that there are so many loop-holes available to a
person from the grip of law who is deliberately committing this
offence. These loop-holes defeat the very goal of the
incorporation of this Section. Let us discuss the feasibility of
this Section in the present scenario.

JUDICIAL ESCAPISM
In Laxmi Devi v. Satyanarayan[1994]3 Crimes
234[SC], Vijayalakshmi v. Kunnath Kumaran[1994]4 SCC
656 where there was second marriage deposed by witnesses
but saptapadi ceremony could not be proved, it was held that
since factom of second marriage was not established and
hence no offence of bigamy. However, since respondent is
living with other woman as husband and wife, appellant be
granted compensation under Article 142 of the Constitution.
In Masina Kusuma Kumari v. Yeramali
Venkatalekshmi[1994]1 ALT[Cri]562, even if the accused,
admitting the second marriage under Section 313 of the Code
of Criminal Procedure, was not sufficient for conviction as
burden is on first wife to prove second valid marriage. So,
burden of proof of the second marriage on the shoulders of the
first wife who is the victim of the offence.
What a folly! Eventhough the person who commited
the offence admitted it, it is not sufficient but it should be
proved by the first wife! If a person commits an offence and he
admits it under Section 313 of the Code of Criminal Procedure,
it is taken as evidence against him. But in the case of bigamy, it
should be proved beyond doubt by the first wife. We know
that the High Courts and The Supreme Court of India have the
inherent powers to interfere in matters and make laws where
the law is silent. We have witnessed this in so many instances.
But in the case of bigamy, the courts are reluctant to do this.
Why do the courts as adamant as this? Here, I am forced to
coin a new term in this regard i.e., JUDICIAL ESCAPISM!

Actually, the present attitude and approach of the courts can be

traced as nothing but judicial escapism.
Besides, exception to Section 494 says that a second
marriage will be void during the lifetime of the spouse. Then as
to how the second valid marriage will be proved?
In Manjula Nayak v. Rama Chandra Nayak; OLR
520[Ori] the court held that where there was allegation of
bigamy , valid marriage to be proved in case of first marriage
as well as second marriage.
In
Smt.Urmila v. State of U.P [1994]UP
Cr.R382[All] unless there is proof of second valid marriage,
the offence under Section 494 IPC is not complete.
For the purpose of proving the offence of bigamy or
adultery, the prosecution has the duty to prove the necessary
ceremonies of the second marriage have been performed. Even
an admission by an accused is no evidence of marriage!
In Satyanarayana v. Malliah, [1997] Cri.LJ211
[SC] when husband admitted that he married a second wife
after first wife deserted him, prosecution is still to prove that
the second wife was taken after solemnization of ceremonies of
Hindu Marriage.
It is evident from the decisions of the courts that
absence of proof of solemnization of marriage would
automatically defeat the charge under Section 494 of the IPC.
Besides, it is the duty of the prosecution, i.e., the first wife to
prove the second valid marriage. In majority of the cases the
victims are women.
Even the admission by the accused
person is not sufficient to prove the offence.
So, as a result of these loop-holes, a man can marry
as many females as wives as he can and will be exempted from
punishment if he does not observe ceremonial solemnization
while performing the marriages. A woman can also do this.
Then, there is no reasoning as to why the Section 494 was
incorporated in the Indian Penal Code.
AMENDMENT OF SECTION 494 IPC, SECTION 17
OF HINDU MARRIAGE ACT AND SECTION 50 OF THE
INDIAN EVIDENCE ACT
Sections 494 of the Indian Penal Code, Section 17
of the Hindu Marriage Act and Section 50 of the Indian Evidence
Act have to be amended so as make the intentions, if any,
feasible. Unless, the victims have to be subjected to double

jeopardy i.e., they have to waste their money besides being

spending their time in the verandahs of courts.
Law is for the people and not vice versa. If the very
intention of the law is defeated when it is applied as to why did
it incorporate? Hence, the unreasonable conditions are to be
amended and the attitude and the approach of the courts are
to be changed if there is sincerity in the incorporation of
Section 494 of the Indian Penal Code.
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