Illegality of Second marriage
A person marrying for the second time while his first marriage is in subsistence is an offence. Such a marriage, called bigamy, does not hold any legal validity. Nevertheless, the victims of bigamy can still approach the court for claiming maintenance.
In order to attract the offence of bigamy, it is necessary that essential ceremonies, rites or procedures constituting a marriage should have performed in both the marriages. In essence, a marriage means solemnisation with proper ceremonies appropriate under the custom or law followed by the party in marriage.
Bigamy in personal laws
The Section 17 of the Hindu Marriage Act, 1955 states that if a Hindu marries another person during the existence of his/her first marriage, then the marriage is void and the person shall be punished under Section 494 and 495 of the Indian Penal Code (IPC).
Under Muslim Women (Protection of Rights on Divorce) Act, 1986 a Muslim man has a right to marry up to four times if he is able to treat and respect all of his wives in the equal manner. In case he fails to do so, then he is liable to be punished. If a Muslim husband contracts a Muslim marriage first and another marriage under Special Marriage Act, 1954 (SMA) later, he commits the offence of bigamy. Similarly, if a Muslim marries a fifth wife, he can be prosecuted under Section 494 IPC.
Under Section 5 of the Parsi Marriage and Divorce Act, 1936 bigamy is null and void. It imposes a punishment as laid down under Section 494 and 495 of IPC.
The Section 19 of the the Divorce Act, 1869 states that a Christian husband or wife can get a decree declaring the marriage null and void from the District court on the ground that the former spouse of the party is living at the time of second marriage.
Similarly, the Section 60 of the Indian Christian Marriage Act, 1872 lays down that none of the parties to the marriage applying for a marriage certificate should have an existing marriage. If a person gives a false oath or declaration for procuring a marriage or its certificate, then he/ she is punishable under Section 193 of the IPC. Under this provision, more than one marriage is illegal. Christian marriage is essentially monogamous in nature. Even when the second marriage is solemnised by church it is void if one of the parties have a spouse living.
The Sections 43 and 44 of the Special Marriage Act, 1954 state if any person commits bigamy, then he/ she is liable under the Section 494 and 495 of the IPC. A second marriage during the life time of a spouse living cannot be registered under Section 15 of the SMA.
Punishment for Bigamy in India
Bigamy in India is a non-cognizable offence. It is bailable and compoundable one. The Section 494 of the IPC imposes a punishment of imprisonment, of maximum 7 years or fine or both.
The priest officiating a bigamous marriage is a bettor to the case of bigamy and is punishable under Section 494 read with Section 109 IPC. The prosecution for abetment must prove that the person accused of abetting must know the person he married was the wife was the wife of another person. Prosecution must prove the conduct of both the marriages to punish the accused of bigamy.
Permitting a premise for celebration of a bigamous marriage is no abetment, so as one witnessing it.
If a person does bigamy for the second time
In case the person charged of bigamy has performed the second marriage by concealing the fact of first marriage, then he shall be punished with imprisonment of up to 10 years or fine or both. Such offence comes under Section 495 of IPC. The offence is not compoundable.
First wife can make a complaint about bigamy
Under Section 198 of the Criminal Procedure Code no person shall take cognizance of an offence of bigamy except upon a complaint by some person aggrieved by the offence.
Therefore, only an aggrieved person such as the first wife alone can make a complaint against her husband if he contracts a second marriage. On her behalf others can make a complaint with the leave of the court. The second wife can also be an aggrieved person.
Means of proving bigamy
Marriage can be proved by reputation evidence under Section 50 Indian Evidence Act. When a person has special means of knowledge of something, that is relevant proof in a case.
But admission of second marriage by the accused in an earlier document is not a proof of it in criminal case.
