Bigamy Under Bharatiya Nyaya Sanhita, 2023: Legal Analysis and Case Law Review.
This article is written by Satakshi Kumari, 4th Year, B.A. LL.B., CMP Degree College, University of Allahabad.
Abstract
Bigamy is an age old practice in which having further than one mate or multiple mates is considered as a crime in the society of India, with many exceptional cases.
India has six major persuasions of the world. Still our country balances the denomination on one hand and particular laws of each religion on the other hand.
Bigamy, as a lawless offence, is still current in India and has a different effect in society.
This is an composition on bigamy on law point of view.
There are multitudinous different approaches to deal with bigamy.
Bigamy constitutes such a trouble because it destroys the meaning of the institution of marriage. In substance, the legal frame in India aims to cover the saintship of marriage and discipline individualities who engages in bigamous connections.
Introduction
Offences related to marriage have been placed under chapter V of Bharatiya Nyaya Sanhita ,2023 from Section 80 to Section 87. This law along with ¹Dv Act (2005), aims to provide substantial protection to woman.
Mock or invalid marriage has been dealt under sec 81 and Sec 83. Bigamy has been dealt under Section 82 of the Bharatiya Nyaya sanhita,2023. Sec 85 deals with cruelty by husband or relatives of husbands.
Nature of the offence
The nature of the offence given under sec 82 is non-cognizable, bailable, compoundable and trial by the magistrate of the first class.
Provision of Bigamy in Bharatiya Nyaya Sanhita,2023 ²
Section 82(1) - Marriage again during lifetime of husbands or wife
Section 82(1) provides that whoever, having a husband or wife living, married in any case in which such marriage is void by reason of it taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Meaning of bigamy
Bigamy word comes from Greek word ‘Bi’ means ‘Two’ and ‘Gamous’ means ‘union or marriage‘. Thus, it means two marrying.
When a person is formerly married and the marriage continue to be valid, also contracts another marriage with another person is calling bigamy and the person committing this is called bigamist.
Illustration: A was married to B who's his woman and due to some fights, she left her-in-las place and went to her paternal home.
Also after some days, her hubby married another woman.
In this case ‘A’ is to be called a bigamist.
Scope
The scope of this section is wide enough to include both manly and womanish within its fold.
It's inversely applicable to all persuasions except Muslim males.
In case of Muslim males distinguish is drawn between manly and ladies because under Muslim particular law polygamy for males up to 4 women is allowed.
Still, it must be noted that this exception available to muslim male is only applicable if he marries within the dimensions of particular laws.
If the marriage is contracted under the special marriage Act 1954 also the offences of bigamy will be attracted.
Ingredients
There are 3 essential constituents for bigamy:
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Actuality of a former marriage – One of the rudiments of the offence of Bigamy is the actuality of a preliminarily contracted marriage. It attraches crime to the act of alternate marriage. The alternate marriage is void.
The first marriage should be breathing at the time of alternate marriage and should be a validly contracted one, still, the alternate marriage does not amount to bigamy, If the first marriage is not a valid marriage.
Radhika Sharma VS SHO Habib Nagar police station, Hyderabad (1997)²
Supreme court held that a Muslim man married under the Special marriage Act 1954 who enters a second marriage under the Muslim law, he would be liable to be prosecuted for the offences of Bigamy. -
Second marriage to be valid – The second essential element to constitute the offence of Bigamy is that the person concerned should have marriage again. For this provision, not only the first marriage, but also the second marriage should be valid one. It means all the necessary ceremonies must duly be performed.
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Second marriage to be void by reason of first husband/ wife is living – The offence of Bigamy is made out only when the second marriage is void by the reason of first husband or wife living. It has no application to cases where a second marriage is permitted under personal laws or customs governing the parties.
Second marriage by a Muslim, who is entitled to four wives, is not the offence under this section. Prior to the enactment of 1HMA, a Hindu man could marry more than one wife.
However, after the coming into force HMA, situation changed.
Gopal Lal VS state of Rajasthan³
SC held that, the second marriage should also be properly solemnized. Therefore, both the first and second marriage should be valid marriage in the eye of law.
Exception
This section is in applicable in following cases:
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when the first marriage has been declared void by a court of competent jurisdiction.
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when husband or wife has been continuously absent or not heard for 7 years.
Under Section 111 of Bharatiya Sakshya Adhiniyam, 2023 when it is proved that a person has not been heard fir more than 7 years by those who would naturally have heard of him if he had been alive, there is a presumption that he is dead.
The Burden of proof that he is alive is on the person who affirms it or states that such person is alive. -
If 2nd marriage is not valid marriage according to law applicable to parties there would be no question of it being void by reason of taking place during lifetime of first husband or wife.
Kanwal ram VS Himachal Pradesh admin⁴
In this case the court held that for prosecution of bigamy, admission of marriage by the accused is not the evidence of it. The standard of proof for second marriage must be proved that the essential ceremonies required for its solemnisation were performed.
The court further ruled that a live in relationship does not constitute a second marriage.
Section 82(2) – Concealment of former marriage
Provides that whoever commits the offence under sec 82(1) having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.
Change of religion
Sarla Mudgal VS union of India⁵
SC held that marriage under one personal law, cannot be dissolved by the application of another personal law, to which one of the spouses converts.
Such a practice would be opposed to justice, equity and good conscience or even common sense.
It was stated that change of religion cannot defeat the provision of law. It does not give the licence to permit bigamy.
There is no dissolution of the Hindu marriage up to the conversion of one of the spouses to another religion.
It can only be the ground of divorce under Section 13(1)(ii) HMA 1955. Marriage subsists even after the conversion.
Lily Thomas VS union of India⁶
It was held that change of religion does not automatically dissolve the marriage. The court also upheld the judgement in Sarla Mudgal’s case.
Effect of conversion
Conversion of one of the spouses without the consent of the other, from one religion to another, often causes problem in the lives of the other spouses and children.
This is because the personal laws governing people vary from religion to religion.
Problem arises when one religion permits polygamy whereas the other religions does not.
Abetment of bigamy
Where the person abets, the second marriage is liable for punishment. The priests, the parents who participated in the second marriage, knowingly are to be held for abetment of bigamy.
Gajja Nand and Kripa ram vs The Crown (1921 Lahore HC)⁷
In this case, the mother of the girl was willing to get her married with one person, but the father was unwilling. Accordingly, the mother got her daughter married with that person. The married couple started living together and, in the meantime, the father took his daughter from her matrimonial home, and he got his daughter married again to some other person. So, it was held that the father was liable for abetment of bigamy.
Who can file a complaint
A complaint can be filed by his or her legal spouse, wife, or husband as the case may be. At this section is gender neutral i.e. both man and woman can be help guilty. Therefore, there is no discriminatory restrictions that the victim or aggrieved party shall be only a wife.
Section 219 of BNSS provides for prosecution of offences against marriage.
Complaint by the legal wife
If the aggrieved party in the case of Bigamy is a legal wife, then sec 219(1)(c) of BNSS allows either the wife or any of the following persons to file a complaint:
- her parents, either father or mother
- her siblings, either brother or sister
- her children, either son or daughter
- her aunt or uncle, either paternal or maternal
- Any person who was related to her, either by blood, adoption, or marriage
Complaint by the armed forces personnel
Section 219(1)(b) of BNSS provides that if he is armed forces personnel who cannot obtain leave for this purpose, then any other person can file a complaint on his behalf in accordance with the procedure mentioned under this section.
Punishment
Marrying for the second time during the existence of the first marriage with the spouse living is a punishable offence. The maximum punishment for such an offence is imprisonment for a period of seven years. It did not mention any minimum punishment for the convict.
Conclusion
We can now conclude that the crime under this section is a serious offence for which punishment also goes up to 7 years, along with the penalty of fine.
It is necessary for the offences of Bigamy that for making accused liable all the 3 essentials must be fulfilled. However, there are few exceptions where the accused cannot be held guilty under this provision.
This section was also criticised due to discrimination in the application of this provision; the supreme court suggest to bring a uniform civil code to solve various issues.
References
[1] Protection of Women from Domestic Violence Act, 2005.
[2] Radhika Sharma v. SHO Habib Nagar Police Station, Hyderabad, 1997 CriLJ 1655 (AP).
[3] Gopal Lal v. State of Rajasthan, AIR 1979 SC 713.
[4] Kanwal Ram v. Himachal Pradesh Administration, AIR 1966 SC 614.
[5] Sarla Mudgal v. Union of India, AIR 1995 SC 1531; (1995) 3 SCC 635.
[6] Lily Thomas v. Union of India, AIR 2000 SC 1650.
[7] Gajja Nand and Kripa Ram v. The Crown, 1921 Lahore High Court.
Bibliography
- Ipleaders, Bigamy under the New Criminal Law: Bharatiya Nyaya Sanhita 2023, https://blog.ipleaders.in .
- Scribd, Legal Notes and Case Law Summaries, https://www.scribd.com/doc .
- Law Brigade, The Law Brigade Journals, https://thelawbrigade.com .
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