VICE OF BIGAMY AND INDIAN PENAL CODE : RAMIFICATIONS

OF AN ARCHAIC LAW*
I Bigamy in Indian law
IN THE Indian legal tradition the question of number of spouses a man or
woman can have was, initially, in the exclusive domain of religion. Rules
in this regard were found in the religio-legal literature of various communities. Hindu, Buddhist and Jain shastras of varying periods in the Indian
legal history, have been replete with dictates, postulates and tenets relating
to marriage and its disciplineincluding the question of permissible number
of spouses. Islamic law, introduced in this country over a thousand years
ago, also incorporated detailed injunctions and guidelines relating to monogamy and polygamy. Christians, Jews and Par sis had their own religious
laws on the permissibility of plurality of spouses. The latest religion added
to the galaxy of Indian faiths, viz., Sikhism, too treated the issue spiritually,
taking as its basis the indigenous religious tradition and local usage in this
regard. Until 1860 the issue of monogamy versus polygamy was thus
accepted and acknowledged as a subject to be tackled exclusively by religiondifferent religion based personal laws dealing with it differently.
In 1860 the newly enacted Indian Penal Code (IPC) introduced some
general provisions relating to polygamy. It contained two consecutive
sections494 and 495dealing with polygamy. Section 494, titled "Marrying again during life time of husband or wife," provided punishment for a
second marriage during the subsistance of an earlier one (except when the
earlier marriage had been nullified or the first spouse was missing for a long
period). Section 495 provided punishment for cases where the same 'offence'
had been committed concealing the fact of former marriage from the person
with whom subsequent marriage was contracted. During 130 years that
followed the enactment of the Penal Code these provisions have remained
substantially unamended but have, at the same time, been significantly
affected in their meaning and scope by social legislation adopted from time
to time. In this paper we shall have a critical look at these provisions of
the code in their historical perspective and also make an appraisal of their
interpretation by the courts.
II History of IPC provisions
As is well known, IPC had been based by its chief architect T.B. Macaulay
on the then English criminal law; and it had altogether replaced Hindu and
Drawn on author's Ph.D. thesis, "The Institution of Polygamy in Modern India
and the Contemporary Islamic World : A Comparative Socio-Legal Study" (University
of Delhi) (1990).

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Islamic criminal laws which till then prevailed in different parts of British
India. Neither the traditional Hindu law nor Islamic law treated polygamy
as on offence. The relevant IPC provisions found in sections 494 and 495
were clearly an innovation introduced into Indian law by the British rulers
and these were expectedly based on the British law.
In England, long before the enactment of IPC, bigamy had been treated
as an offence. Though even earlier local ecclesiastical courts had jurisdiction to penalise bigamists, specific penal legislation on polygamy was
first promulgated in 1603. It was enacted in the aftermath of the decision
in Rye v. Fuliambe1 bringing forth the extent of bigamous marriages in the
country. The statute declared bigamy to be an offence except when the first
spouse was missing or absenting himself or herself for seven years, or in case
the earlier marriage had been dissolved or declared void by the ecclesiastical
court. Two and a quarter centuries later the Offences against Persons Act
1828 re-enacted the law on bigamy and sought to enforce it more stringently
by making no exceptions for situations where an earlier marriage was subsisting in any form.2 This was where the English law on polygamy lay
when Macaulay started drafting IPC
Soon after the code was enacted, but before it was enforced, England
enacted its new Offences against Persons Act 1861. The law on polygamy
under this Act was contained in section 57 which remains unaltered until
now. At present in British law bigamy is committed when a person, being
married, goes through a legally recognised ceremony of marriage with
another while the first spouse is still living. It is a defence to a charge of
bigamy that the first marriage has been dissolved or declared void by a
competent court. There is a further defence : if the accused can show that
the first spouse has been continuously absent for seven years and has not
been heard of by him or her during that time, he or she will be acquitted.
It was the aforestated English law of 1828 which must have shaped the
decision of the architect of IPC to incorporate anti-bigamy provisions into
it.
Ill Scope of sections 494 and 495 : past and present
Section 494 of IPC declares the following to be an offence:
(1) remarriage of a woman having a husband, and
(2) remarriage of a man having a wife.
In either case remarriage will be an offence if it is "void by reason of its
taking place during the life of such husband or wife." The following
salient features of this section are notable:
1. (1602) Moo. K.B. 683.
2. S.W. Bartholomew, "The Origin and Development of the Law of Bigamy," 74
Law Q. Rev. 259 (1958).
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(1) It prohibits both polyandry and polygyny and treats them on par.
(2) The prohibition is of a penal nature and does not talk of the status
of a bigamous marriage at the civil law.
(3) The penal provision applies only if the civil law applicable prohibits
the second additional maniage to the extent of treating it as "void."
(4) The offence of bigamy can be established only when the first spouse
is living and marriage with him or her is legally subsisting.
(5) The provision will be attracted only if the second marriage is a
marriage in the eyes of law.
(6) The section will not apply to a case where the first marriage of a
person has been declared void by a court.
(7) The provision also will not apply to a case where the first spouse
has been missing for seven years or more in the circumstances in
which the law of evidence and most of the personal laws would
raise presumption of death (in such a case it being necessary that
the second spouse must have been informed of the facts before
remarriage takes place).
The provision of section 495 may be described as a special rule under the
general law laid down in section 494. All essential elements and ingredients
of the offence of bigamy under section 494 are fully applicable also to cases
under section 495; here there is an additional ingredient, viz., concealment
of the existence of an earlier marriage from the person with whom the subsequent marriage is contracted. In other words:
(1) If a married person marries again telling his or her new spouse that
this is a second additional marriage, section 494 will apply.
(2) Where a married person marries again keeping his or her new spouse
in the dark about his or her earlier marital status, section 495 will
apply.
Bigamy, whether in the form of polygyny or polyandry, would attract
application of sections 494 and 495 only if the resulting marriage "is void
by reason of its taking place during the life of such (first) husband or wife."
This clause, in effect, subjects entire provisions of these sections to the family
law applicable to the person concerned. In other words bigamy will be
penal only if the family law governing him or her treat it as void. Or,
conversely, if the concerned familyl w treats bigamy as void it will also be an
offence under IPCwhere bigamy is permissible by the family law applicable,
it will not be an offence under the code.
In 1860 when IPC was enacted there was no codified or statutory family
law in India; all the religious communities of India were governed by uncodified traditional or conventional laws. Among the various uncodified
laws, the one applicable to Christians in British India treated both polygyny
and polyandry as void, and so Indian Christians came very much within the
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purview of sections 494 and 495. Polygyny among Hindus, Buddhists,

Sikhs and Jains was to be wholly outside its ambit as they were governed
either by their religion based personal laws or by customary law, both of
which did not treat polygyny as void. However, polyandry among these
communities could attract application of IPC, except where customary law
permitted it. Jews and Parsis were then following their custom and usage
which did not specifically prohibit polygyny. As regards Muslims, to the
extent Islamic law permitted polygyny they also remained outside the scope
of sections 494 and 495. The fifth marriage of a Muslim man and second
marriage of a Muslim woman could apparently attract application of the
code if it could be shown that such a marriage was void under the school
of Muslim law applicable to a particular case.
The process of reforming laws applicable to marriages so as to invalidate
bigamy started in British India within the decade in which IPC had come
into force. In 1865 Parsis earned the distinction of being the first community
to be given a statute of matrimonial law prohibiting bigamy.3 Then, the
two statutes of family law enacted in 1869 and 1872 for Christians declared
bigamy to be void.4 So did the first law on civil marriages enacted in 1872
which was made available to those who could give up their religion and
personal law.5 During the same year Brahmosamajis were willingly subjected to an anti-bigamy statute.6
During the first half of the twentieth century polyandry was banned by
law for Hindu and Jain matrilineal tribes in South India7 and for Buddhists
in Ladakh8polygyny was also restricted or abolished under statutes made
applicable to the former. Restriction of polygamy by law was attempted
at about the same time also in the then princely State of Baroda.9 Later,
provincial legislation in Bombay, Madras, Sauiashtra and Madhya Pradesh
wholly prohibited bigamy for Hindus, Buddhists, Sikhs and Jains.10
After Independence the Hindu Marriage Act 1955 prohibited bigamy for all
3. Parsi Marriage and Divorce Act 1865, ss. 4, 5, 9 & 30, replaced by Parsi Marri
age and Divorce Act 1936, ss. 4, 5, 11 & 32 (d).
4. Indian Divorce Act 1869, ss. 10,18 & 19(4); Christian Marriage Act 1872, s. 60(2).
5. Special Marriage Act 1872, ss. 2(1), 15, 16 & 17, replaced by Special Marriage
Act 1954, ss. 4(a), 15, 24(i), 43 & 44.
6. Brahmo Marriage Act 1872, ss. 2 (i) & 15.
7. Malabar Marriage Act 1896, Travancore Nayar Act 1925, Travancore Ezhava
Act 1925, Travancore Nanjinad Vellala Act 1929, Madras Nambudiri Act 1932, Madras
Marumakkathayam Act 1932, Cochin Thiyya Act 1932, Travancore Kshatriya Act 1933,
^Cochin Nayar Act 1938, Cochin Marumakkathayam Act 1939, Cochin Nambudiri Act
1939, Travancore Krishnanyaka Marumakkathayee Act 1939, Cochin Makkathayam
Thiyya Act 1940, Madras Aliyasanthana Act 1949 and Kerala Nambudiri Act 1958.
8. Laddakh Buddhists Polyandrous Marriages Prohibition Act 1941.
9. Baroda Hindu Nibandh 1937, s. 116.
10. Bombay Prevention of Hindu Bigamous Marriages Act 1946, Madras Hindu
(Bigamy Prevention and Divorce) Act 1949, Saurashtra Prevention of Hindu Bigamous
Marriages Act 1950, Madhya Pradesh Prevention of Hindu Bigamy Act 1955.
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these communities throughout the country; in Jammu and Kashmir too

the new law was adopted by local legislation.11
Outside British India, in Goa, Daman and Diu the former Portuguese
rulers had enforced various codes of native usages during 1854-1912, treating differently different communities and sects in the matter of polygamy;13
while in Pondicherry the French Civil Code 1804, absolutely prohibiting
polygamy, had been adopted by a section of the local people.18
The present position of the various religious communities vis a vis
sections 494 and 495 of the Code is as follows:
(1) Hindus, Buddhists, Sikhs and Jains: All cases of polygamy and polyandry among persons governed by the Hindu Marriage Act 1955
attract application of IPC provisions.
(2) Scheduled tribes among Hindus, Buddhists, Sikhs and Jains: Being
exempt from the Hindu Marriage Act among them neither
polygyny nor polyandry, if sanctioned by custom, attracts IPC law.
(3) Christians and Parsis: AH cases of polygyny and polyandry all over
India attract IPC provisions.
(4) Jews: Modern Jewish law prohibits also polygyny,14 while polyandry
was never allowed by it; hence the IPC law applies to all bigamous
marriages among Jews.
(5) Muslims: Polygyny to the extent permitted by Muslim law (i.e., up
to four wives) does not attract the IPC law, while polyandrous
marriage of a woman does attract it.
(6) Parties to civil marriages: Irrespective of religion and community
bigamy on the part of any married man or woman whose first
marriage is a civil marriage attracts application of the IPC law.
Curiously, in regard to the various communities referred to above, while
the Parsi Marriage and Divorce Act 1936, Special Marriage Act 1954, Hindu
Marriage Act 1955 and Foreign Marriages Act 1969 make a pointed reference to sections 494 and 495, the Divorce Act 1869 of Indian Christians
makes no reference to these provisions of the code. To Christians these
provisions apply because while the Christian law treats bigamy as void,
IPC says that if personal law does so, its anti-bigamy provisions apply
automatically.
11. Jammu and Kashmir Hindu Marriage Act 1955.
12. Goa, Daman and Diu Codes of Native Usage 1854; Portuguese Civil Code 1867,
arts. 1073-74; Goa Code of Usages and Customs of Gentile Hindus 1880; Diu Code
of Usages and Customs of Non-Christian Inhabitants 1894; Law of Marriage 1911, arts.
4, 11 & 12; Daman Amended Code of Usages and Customs of Non-Christian Inhabitants
1912.
13. French Civil Code 1804, art. 146.
14. Rachel Benjamin v. Benjamin Solomon Benjamin, (1926) 28 Bom. L.R. 328.
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IV Judicial interpretation of sections 494 and 495

(1) First marriage: proof, validity and subsistence in law
An offence under section 494 will be established only if
(i) there has been an earlier marriage of the accused;
(ii) it was a valid marriage under the law applicable; and
(iii) the same is legally subsisting when the alleged second marriage
takes place.
Where there has been no earlier marriage at all, the existence of which
can be proved to the satisfaction of court, there will be no room for the
application of section 494. Existence of an earlier marriage can be proved
with reference to the form of its solemnisation and its validity; and both
these aspects will be considered under the matrimonial law applicable to the
accused.
As per section 50 of the Indian Evidence Act 1872 no offence involving
a marriage can be established unless the fact of marriage is strictly proved.
Courts have applied this rule of evidence in the cases of bigamy under IPC;
without a satisfactory proof of an earlier marriage, they have held that
section 494 of the Code cannot be invoked.15 It is notable here that admission of first marriage by the accused, or the statement of a witness that he
had attended it, does not prove formal marriage so as to warrant conviction
under section 494 read with section 109 (abetment).16 A mere statement of
the accused that his second marriage was bigamous is not sufficient.17 Proof
of lawful performance of the first marriage is as essential as that relating
to second marriage, though according to iecent judicial opinion the degree
of proof required to prove the first marriage may not be the same as required for the second marriage and the first marriage may be proved by
presumptive evidence and circumstantial evidence.18
Regarding validity and valid peiformance of the earlier marriage it has
been held in a case that want of guardian's consent will not make an earlier
marriage invalida woman married with the consent of her father, though
in bis absence, cannot be married again.19 Where the first marriage is
void under the law applicable to the parties the second marriage cannot be
bigamousvoidable nature of the first marriage would be immaterial.20
15. Shantimani Dei v. Lingaraj Moharana, 1982 Cri. LJ. 1567; Godawari v. State of
Maharashtra, 1985 Cri. L.J. 1472.
16. Talep Ali Choudhary v. Sabdar Khan, (1940) 45 C.W.N. 84.
17. Gopal Anant Musalgaonkar v. State of Madhya Pradesh, 1976 Cri. LJ. 1333.
18. Godawari, supra note 15; cf. Ventipalii Neelaveni v. Ventipalli Venkateswara Rao,
(1988) 2 Andh. L.T. 770; Binapani Debi v. Ajit Banerjee, 1983 Cri. L.J. 1440.
19. Benodini Howladar v. Emperor, A.I.R. 1927 Cal. 480; Gajja Nand v. Emperor
AJ.R. 1922 Lah. 139.
20. Padi v. Union of India, A.LR. 1963 H.P. 16; Krishni Devi v. Tutsan Devi, A.I.R.
1972 Punj. 305.
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Marriage performed during minority will he a valid marriage so as to make

a fresh maniage bigamous.21
As regards subsistence of the fust marriage until the date of the second
allegedly bigamous marriage, a marriage may be dissolved only either by
the death of either party or by a proper and legally recognised process of
divorce at the instance of either party or by mutual consent of both the
parties. Dissolution by divorce has raised some complications, mainly
in view of differences of scope between the statutory and uncodified laws
relating to marriage and divorce prevailing in the country and applicable to
different communities.
In Hindu law divorce is at present possible both by law and by custom.
In the former case it is now strictly by a judicial process whereas extrajudicial customary divorces are recognised by section 29(2) of the
Hindu Marriage Act. Where the first marriage has been dissolved by a
customary divorce, proof of custom becomes very relevant to the question whether a subsequent second marriage would amount to bigamy.
In one such case where minoi spouses got themselves divoiced without
parents' consent, the divorce was held by the court to be invalid for the
purpose of legalising the subsequent bigamous marriage.22 In the absence
of proof of subsistence of first marriage, second marriage cannot, however,
be held invalid.23 In a very recent case where a Lingayat Hindu woman
exercised her customary right of divorcing herself and then remarried, the
Supreme Court held that she was not guilty of polyandry.24 To the question
whether remarriage of a Hindu prohibited by section 15 of the Hindu
Marriage Act (which prohibits remarriage of parties until divorce becomes
final) would amount to bigamy, judicial response is an emphatic "no." 25
The question whether a Christian marriage can be dissolved outside the
court so as to validate a fresh marriage, the answer of the court has been in
the negative; a judicial decree under the &tatutory law is a must.26 As
regards the question whether the marriage of a Muslim woman can be dissolved extrajudicially making room for a lawful second marriage, we have
conflicting judicial opinions. Some courts have upheld rules of Muslim
law allowing termination of an existing marital bond at the instance of a
wife but without a judicial process;27 some have insisted on confining
Muslim women's rights strictly to the statutory law on the subject, i.e., the
Dissolution of Muslim Marriages Act 1939.28 We find a conflict between
21. Pinninti Venkataramana v. State of Andhra Pradesh, A.LR. 1977 A,P 4$.
22. Sodha v. Mansha Ram, A.LR. 1971 H.P. 27.
23. Mohan Ram v. Badamo Devi, 1974 Cri. LJ. 227; Usman v. Budhu, A.I.R. 1942
Sind 92.
24. Shakuntatabaiv. L.V. Kulkarni, A.LR. 1989 S.C. 1359.
25. Kailash Singh Pariharv. Priti Parihar, 1982 Cri. L.J. 1005.
26. Gyanasoundari v. Naliathambi, A.LR. 1945 Mad. 516.
27. Shaft Ullahv. Emperor, 1934 Cri. LJ. 1053; Muhammad Baksh v. Khuda Baksh,
1950 Cri. LJ. 1169.
28. Usman, supra note 23; K.C. Moyin v. Nafessa, 1972 K.L.T. 785.
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the attitude adopted by the courts in some of these cases and the clear clause
of section 494 of IPC protecting contrary rules of personal laws. Where the
matrimonial law applicable to a woman recognises an extra-judicial termination of her first marriage how can her second marriage be covered by section 494 which accords protection to the (civil) law applicable to the accused ?
The latest Supreme Court ruling in the Lingayat woman's case does appeal
to be sound, whereas those applying the IPC law to women remarrying after
lawfully dissolving their first marriage extra-judicially seem to be incorrect.
(2) Second marriage: proof, solemnisation and validity
To attract application of section 494, the second marriage should be
void under the personal law governing the parties by reason of its taking
place during the life time of the first spouse. Nullity of second marriage
under the personal law applicable to the bigamist is thus one of the essential
ingredients of section 494. The alleged second marriage which may attract
application of section 494 has to be proved to the satisfaction of the court;
and it can, clearly, be proved only with reference to a proper solemnisation
of the marriage. In other words, if an alleged second marriage has not been
properly solemnised with due rites and rituals as per the personal law or the
customary law applicable to the parties, it would remain out of the ambit of
section 494. In a large number of cases couits, insisting on a strict proof of
the second marriage, have called for evidence of a meticulous compliance
with the process of solemnisation under the law governing the parties.
Since among Hindus marriage is a sacrament and must take place through
a ceremony (shastric or customary) as per section 7 of the Hindu Marriage
Act, a proper performance of marital rites and their strict proof has been
insisted upon by the Supreme Court in respect of prosecution for bigamy.29
A good number of High Courts have followed suit in deciding that in the
absence of strict proof of marital rites having been properly performed, an
alleged second marriage cannot be recognised as marriage under section 494
of IPCif not so proved the relationship assailed will be "simply an adulterous union" not hit by the provisions of the section.30 On the contrary, in
a recent case the Calcutta High Court has apparently been inclined to
recognise the existence of a second marriage even on the basis of its established reputation.31 In our opinion this seems to be more reasonable. The
nature and divergence of marital rites among Hindus makes the judge
29. Bhaurao Shankar Lokhande v. State of Maharashtra, A.LR. 1965 S.C. 1564; Priya
Bala Ghosh v. Suresh Chandra Ghosh, A.LR. 1971 S.C. 1153; Gopal Lalv. State of Rajasthan, A.I.R. 1979 S.C. 713.
30. B.Chandra Manikyamma v. Sudarsana Rao, 1988 Cri. L.J. 1849; Shantimani, supra
note 15; Amaliammal v. Rayarswami, 1983 Cri. LJ. 1719; Ram Singh v. R. Sushila Bai,
A.I.R. 1970 Mys. 201; Mukta Jesing v. Vallabhadas Kalidas, 1974 Cri. LJ. 121; Swapna
Mukherjee v. Basanta Ranjan Mukherjee, A.I.R, 1955 Cal. 533.
31. Binapani, supra note 18.

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made law requiring meticulous compliance with them as a pre-condition to

prosecution for bigamy, rather unreasonable.
In Muslim law, strictly speaking, there are no marriage ceremonies.
However, in India a certain procedure of marriage has attained the force of
law and the courts have in some cases required proof of this procedure to
substantiate an allegation of polyandry.32 Difficult questions have arisen
where persons professing Islam or Christianity remarry as per Hindu rites
without changing religion. In one such case the Punjab High Court regarded
this as a case of bigamy, while the Madras High Court has expressed a different opinion holding that in such a case the marriage could not be said to
have been "duly performed."33 A formal declaration that the second
marriage is void under the personal law applicable is not a pre-condition
for trial of the offence of bigamy.34
Must the second marriage (which is allegedly bigamous) be otherwise
valid under the matrimonial law applicable to the accused? The question
has not been uniformaUy answered by courts. For instance, will a second
marriage which is incestuous (violating rules of prohibited degrees) as per
the matrimonial law applicable be acceptable to courts as a bigamous
marriage under section 494 of IPC ? In some old cases it was decided that
even an invalid second marriage would fall within the scope of this section.36
But in recent years courts have seemingly insisted that only that second
marriage can be bigamous which is otherwise valid under the law applicable.86
The observation of Justice Sanjeeva Row Nayudu in Morrapu Satyanarayan
v. State of Andhra Pradesh reproduced below is notable:
This object of the person committing bigamy, and which is sought
to be defeated by the section by declaring it an offence, is not achieved
if the second marriage is one which is no marriage at all in the eye of
law, oi which is otherwise void, in which case it cannot be said that
there was a valid marriage, and the meaning of the word "marries"
is not satisfied.... There may be many instances where a second
marriage may be no marriage at all and in which case there could
be no question of bigamy, as for example, where the parties are so
closely related that a marriage between them is void according to
their personal laws, or where the person sought to be taken in second
marriage is himself or herself not eligible to be taken in marriage; and
there may be many other instances, and it is unnecessary to notice all
32. Badal Aurat v. Queen-Empress, (1891) 19 Cal. 79.
33. Payariv. Faqir Chand Alakha, A.LR. 1961 Punj. 167; Amaliammal, supra note 30.
34. Channamma v. Dhalappa, A.LR. 1958 Mys. 147.
35. Taher Khan v. Emperor, A.I.R. 1918 Cal. 136; Sant Ram v. Emperor, A.LR. 1929
Lah. 713; Emperor v. Soni, A.LR. 1936 Nag. 13; Payari, supra note 33.
36. C.G. Rangabashyam v. Ranjani Murugan, 1981 Cri. L J . 577; Kalanjam Ammal
v. Shanbayam, 1989 Cri. L J . 405.
37. Morrapu Satyanarayan v. State of Andhra Pradesh, 1962 (2) Cri. L J . 644.

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of them in this connection. I am inclined to agree...that the second

marriage should be something which could be regarded as a marriage
in the sense in which marriages are understood; and if it is no marriage
at all, and if it cannot have any validity in law, apart from the fact that
by reason of its being a bigamous marriage, it would be declared void,
it cannot be said that the offence of bigamy had been committed.38
This thinking has led the judiciary in this and some other cases even to
the seemingly unreasonable opinion that if a married man marries a married
woman who is not by law eligible for marriage, this would be the case of a
legally non-existent relationship that would not attract the application of
section 494.39 This judicial attitude has the effect of curtailing the scope of
this section and restricting it to cases where at least one party to an allegedly
bigamous marriage has been hitherto unmairied or where the first marriage
of the party other than the accused is not subsisting on the date of the
second marriage. In our opinion such an interpretation of the law is not
warranted either by the language or the spirit of the IPC law on polygamy.
(3) Section 494: some other aspects
Like any other offence mens rea would be an essential ingredient for
constituting the offence of bigamy under IPC. This has been specifically
clarified by the courts in a number of cases.40 So where a married person
marries again in good faith and without any criminal intent, the provision
of section 494 may not apply.
Where, after a second bigamous marriage is contracted, the first marriage
is dissolved either by death of the first spouse or by any form of a lawful
divorce, will section 494 become inapplicable? Apparently it will not be so.
As regards the effects of a subsequent divorce, there are a number of judicial
decisions that this would not exonerate a bigamist.41
Like any other offence under IPC, in respect of the offence of
bigamy too section 109 of the code would apply so as to render abetment of
bigamy also an offence. Several courts have decided this way, clarifying
that merely attending a bigamous marriage or being involved in it otherwise
than in a position enabling one to prevent the offence from taking place may
not amount to the abetment of the offence.42
(4) Section 495
Section 495 of IPC, relating to bigamy by fraud, has been applied by
38. Id. at 648.
39. C.G. Rangabashyam, supra note 36.
40. Sankaran Sukumaran v. Krishnan Saraswathy, 1984 Cri. LJ. 317; Ahmed Koya
v. Amino Beebi, 1972 K.L.T. 1069.
41. A. Narasimha Ayyangar v. K. Ramayya Chettiar, A.LR. 1932 Mad. 560.
42. Karuppiah Servai v. Nagavalli Ammal, 1982 Cri. LJ. 1362; C.S. Varadachari v.
C& Shanti, 1987 Cri. LJ, 1048*
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courts in some reported cases. Jh an old case a woman who, without a

proper enquiry, presumed that her first husband was dead (while he later
turned up) and thereupon married again, wholly concealing fiom her
second husband the fact that she was once married, was subjected to the
penalty under this section.43
Active helpers of a person whose second marriage is covered by the law
of section 495 may be liable to punishment as abettors under this section
read with section 109 of IPC.44 In a recent case it has been explained that
the basic ingredient of an offence under section 495 is concealment of the
fact of the earlier marriagethe remaining law being the same as under the
preceding section.45
V Two exceptions under section 494
Under the heading "Exception" section 494 mentions two circumstances in which a second marriage will not attract its application. These
are in fact two different exceptions, and their nature and scope is wholly
different.
The first exceptional circumstance excluding the application of section
494 is the fact of the earlier marriage having been declared void by a court
of competent jurisdiction. Two aspects of this exception are notable. First,
since subsistence of an existing marriage until the second marriage is clearly
specified as a condition under the section for its application, specification of
this circumstance seems rather superfluous. Where a marriage has already
been declared void, it is, obviously, not in existence at the time of the second
marriage and so the case will be automatically out of the scope of section 494.
Second, does the exception mean that the fact that a marriage is void will in
itself not be covered by its provision or will a decree of nullity be necessary9
The latter interpretation is negatived by many judicial rulings which have
decreed that if the first marriage was void, the second will not count as
bigamy.46 The condition of obtaining a decree of nullity is not imposed in
respect of void marriages by modern Hindu law, Muslim law and the
laws of civil marriages. It is, therefore, inconceivable that in respect of these
communities, in the absence of a decree of nullity, even a void marriage
would be a bar to remarriage; for this will amount to an implied recognition of void marriages.
The second statutory exception keeps a fresh marriage outside the mis.
chief of section 494 where the first spouse has been "continuously absent"
for seven years. This exception will apply only if the other spouse informs the
new spousebefore the second marriagethat it is a case of thefirstspouse
43. Queen v. Enai Beebee, (1865) 4 W.R. (Cri.) 25.
44. Karuppiah, supra note 42.
45. Jagdish Chandra Verma v. Neetam Kumari, 1979 Cri. LJ. (N.O.C.) 202.
46. Supra note 20.

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having been missing for not less than seven years preceding the date of remarriage. It is notable that the period of seven years, referred to in the
exception to section 494, is also treated as a factor raising presumption of
death under section 108 of the Evidence Act and as a ground for divorce
under the Special Marriage Act47 and the Hindu Marriage Act.48 There is,
thus, no conflict in respect of the period of absence during these latter legal
provisions and IPC. However, while the Maliki school of Islamic law
allows remarriage of a missing person's spouse after a period of four years,
in an old Punjab case it was decided that this provision of Islamic law stood
overruled by IPC.49 Subsequently the said provision of Maliki law was
incorporated into the Dissolution of Muslim Marriages Act which now
is the general law applicable to all Muslims.50 The present position seems
to be that where a decree of divorce has been obtained by a missing person's
wife under this Act, she can immediately remarry.
VI Punishment, procedure and jurisdiction
The punishment provided under sections 494 and 495 of IPC is imprisonment of either description up to seven years and fine, and up to 10 years
and fine, respectively. Since the quantum of fine as well as the duration of
punishment within the maximum limit has been left to the discretion of
courts, in several cases judicial decisions have in effect come forward with
self-assumed guidelines for fixing up the same. For instance, where a
woman, deserted by her husband for long, married again and the prosecution for bigamy arose out of vindictive motive, a light sentence was
awarded.51 In another case where the accused was below 22 years of age
and undertook to keep his first wife with him the court preferred to release
him on probation.52 In a third case, where the accused had undergone
26 days of punishment and then released on bail while he had remarried
after having been deserted by his first wife, the Punjab High Court awarded
no more punishment though it increased the fine.53
Offences under sections 494 and 495 are non-cognisable, bailable and
compoundable, and prosecution for them can be initiated on the basis of a
complaint only. "Some person aggrieved by the offence" has to file a
complaint. "Some other person" may be permitted by the court to make a
complaint only where the aggrieved person is a minor under 18, an idiot or
lunatic, sick or infirm, or a woman inhibited by local custom and manners
from public appearance. If the aggrieved person is a wife, her parents,
47. s. 27 (i)(h).
48. S. 13(l)(v/i).
49. 1878 Punj. Re. No. 27 (Cri.) 67.
50. S. 2(0.
51. Ritha v. Emperor, A.I.R. 1926 Nag. 127.
52. Sindhiya Devi v. State of Uttar Pradesh, 1974 Cri. L.J. 1403.
53. Supra note 45.
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children, brother, sister, uncle or aunt, can make a complaint on her

behalf without prior permission of the courtany other relative can do so
only with the court's prior permission.54
Section 182(2) of the Code of Criminal Procedure 1973 provides three
venues for enquiry and trial of the offences under sections 494 and 495, viz.,
the court within whose local jurisdiction (1) the offence was committed, (2)
the offender last resided with his or her spouse by thefirstmarriage, or (3)
the wife by the first marriage has taken up permanent residence after the
commission of the offence. The jurisdiction of the last mentioned court
has been upheld in a number of recent cases.55
VII Conclusion
In the context of the social menace of polygamy the present Indian law
is awfully defective. Many legal changes are required in this law. If
bigamy means two women cohabiting with the same man as his wives, it
is surely an archaic practice and must be stopped by law. But if bigamy
means remarriage of a married man after separation from his first wife with
whom his marriage has in fact irretrievably broken down, mere passing of
laws cannot stop it. To put an end to such a practice what is required is an
overall reform and a thorough overhauling of the entire system of our matrimonial lawsboth substantive and procedural. There is no doubt that in
our country now bigamy exists not in its first but in the second meaning,
given above. The number of cases in which a man may actually be
cohabiting with two or more wives is indeed microscopic. Married men, of
course, marry againbut they do so when their first marriage, although
still existing in name, has in fact broken down. And this malady cannot
be cured either by declaring bigamy to be an offence or by simply providing
under the family laws that a bigamous marriage would be void.
An effective enforcement of the socio-legal ideal of monogamy in India
requires, as the first step, a proper reform of sections 494 and 495 of IPC
as also of the laws of divorce applicable to various communities in India.
The latter are outside the scope of the present paper and require a separate
study in depth. Here we suggest the following reforms for these sections:
First, these sections should be amended to provide that a bigamous
marriage will attract their provisions if it has taken place in violation of the
matrimonial law applicable although it may not be void under that law and
even if not properly solemnised or contracted as required by that law.
Second, the exceptions in section 494 should be deleted as they are superfluous and are already covered by the marriage laws applicable in various
cases.
54. Code of Criminal Procedure 1973, s. 198.
55. Ravinder Kaur v. Gurmit Singh, 1985 Cri. L.J. 601; Ningappa Shivappa Gown v.
Kalavathi, 1986 Cri. L J . 1719; Sukhaswarooplal v. State of Madhya Pradesh, 1987 Cn.
L J . 921.
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Third, on the lines of section 12 of the Child Marriage Restraint Act

1929, an appropriate provision should be made empowering courts to issue
an injunction prohibiting an intended bigamous marriage if it violates
requirements of the law applicable to the case.
Fourth, offences under these sections may be made cognisable, nonbailable and non-compoundable.
Fifth, the Family Courts Act 1984 should immediately be implemented
throughout the country and family courts having civil and criminal divisions
should be set up under its provisions. Jurisdiction to decide all proceedings
involving bigamy, both civil and criminal, should be vested in these courts.
Sixth, convenient and quick procedure for disposal of all matrimonial
casescivil and criminal, ignoring the niceties and rigidities of the rules
of civil and criminal procedure followed in other courts, and focusing on
reconciliatory methodsshould be detailed in the Family Courts Act.
Kir an B. Jain*

*LL. M., Ph. D. (Delhi), Assistant Research Professor, Indian Law Institute.

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