Punishment for Bigamy in India (Burden of Proof and Exceptions)
Proof of Bigamy:
The following facts constitute the ingredients of the offence of bigamy punishable under Section 494, I.P.C., which must be proved to establish the said offence. It must be proved:
(1) That the accused was married to some person; proof of actual marriage is always necessary;
(2) That the person to whom the accused was married was alive on the date of the second marriage;
(3) That proof of the celebration of the second marriage must be in the same manner as that of the first; and
(4) That the second marriage was void because it took place during the lifetime of the first spouse, that is the husband or the wife, as the case may be, to whom the accused was first married.
For prosecution for bigamy one must show first of all that at the time of the second marriage, there was first valid subsisting marriage; where proof of either marriage is unsatisfactory, there ought to be no conviction.
It cannot be argued that because the wording of Section 494 is in the singular; it only refers to the marriage by a husband or a wife whose wife or husband is living at the time of the second marriage.
Therefore, where both the parties to the second marriage had their previous spouses living at the time of the second marriage, both of them could file complaints separately and the same second marriage between both of them will have to be treated as resulting in two separate offences of bigamy; one offence in respect of each of them.
If the former marriage is concealed from the person with whom the subsequent marriage is gone through, the offence is aggravated and imprisonment may extend upto ten years in addition to fine (Section 495).
There are following circumstances or conditions in which the subsequent marriage will not be an offence:
(1) When the previous marriage has been declared void by a competent court.
(2) When the husband or wife has been continually absent or not heard of for seven years, provided that the fact is disclosed to the person with whom the second marriage is contracted.
(3) When the first marriage was dissolved by a decree of divorce by a court having the competent jurisdiction.
(4) Mohammedan males do not come within the purview of this section since a Mohammedan male may have four wives at a time according to his personal law.
The following facts must be proved to prove an offence under Section 494
(1) That the accused had already been married to some person. Proof of actual marriage is always necessary; proof of marriage by cohabitation, reputation and other circumstances from which a marriage may be inferred is not sufficient.
(2) That the person who had been married was still living. The prosecution must pove to the satisfaction of the Court that the husband or wife as the case may be was alive at the date of the second marriage.
(3) That the accused married another person. The celebration of the second marriage has to be proved in the same manner as that of the first.
(4) That the second marriage was void by reason of its taking place during the life of the first spouse.
Sections 494 and 495 do not apply to persons who can have more than one wife or husband at the same time under the personal law applicable to them as the subsequent marriage will not be void in their case.
These two sections have been enacted more out of concern for the person with whom the subsequent marriage is gone through than for anyone else. These sections apply to Mohammedan women but not to Mohammedan men, while they apply equally to men and women amongst Hindus, Christians and Parsis. (See Hindu Marriage Act, 1955).
As conversion does not dissolve a Hindu, Christian or Parsi marriage, a second marriage gone through after conversion, by a Hindu, Christian or Parsi will be bigamous while such a marriage by a Mohammedan will not, as under the Islamic Law marriage is dissolved by conversion from Islam.
A Muslim girl has the option to ratify or cancel her marriage on reaching puberty and the second marriage gone through by such girl on reaching the age of option without consummation of the first marriage will not be an offence as it will amount to a cancellation of the first marriage which is incomplete in the absence of ratification.
In a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it must be proved. Admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case.
Where, therefore, in prosecution for an offence of bigamy the evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed, the conviction of the accused on the statement of the bridegroom that he had sexual relationship with the alleged bride and an admission of the accused in a written statement that the parties married after the first marriage was dissolved, was not justified.
The word ‘marries’ in Section 494 denotes that the accused must have undergone some form of marriage, such form being a form of marriage recognised by law; otherwise there would be hardly any difference between concubinage and a lawful marriage.
If the marriage is not a valid one according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If a marriage is not a valid marriage, it is no marriage in the eye of law.
The fact of a man and a woman living as husband and wife does not normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and society treats them as such.
The mere keeping of a concubine or a mistress is not sufficient to attract the provisions of Section 494, I.P.C., which has application where an actual marriage is performed. In order that an offence under Section 494 may be committed it is necessary that all the ceremonies which are necessary to be performed in order that a valid marriage may take place ought to be performed.
It is now well settled that in cases of bigamy the fact that the marriage has been solemnised in accordance with, and after performance of the necessary rites has to be proved by the prosecution as a fact and any admission made by the accused in that regard cannot constitute evidence of the fact.
In Kashiram v. Sonvati, the High Court observed that previous marriage must be properly proved. If it is not proved properly, the offence of bigamy could not be established.
In another case Radha Manohari v. Venket Reddy? the Supreme Court upheld that limitation explained under Section 464 of Cr. P.C. 1973, has no application under Section 494 of I.P.C.
The offence depends upon the proof of the second marriage during the subsistence of the first marriage. The second marriage must be a legally valid marriage so as to come within the mischief of Section 494. The prosecution is under an obligation to satisfactorily establish by evidence that the second marriage has been solemnised in accordance with law or custom applicable to the parties.
In the absence of the evidence of the performance of marital ceremonies necessary in a marriage were admission of the second marriage by the accused will not satisfy the ingredients of the offence under Section 494, I.P.C.
Where there was absolutely no evidence to prove that any of the two essential ceremonies, i.e., Datta Homa and Saptapadi has been performed at the time of second marriage and the existence of the custom in the community to put the ‘Yarn Thread’ instead of ‘Mangal Sutra’ was neither mentioned in the complaint nor proved in the evidence, the conviction under Section 494, I.P.C. could not be sustained.
In order that an offence under Section 494 may be constituted it is necessary, at least, that all the ceremonies which are necessary to be performed in order that a valid marriage may take place, ought to be performed and ordinarily, all these ceremonies would amount to valid marriage but for the fact that the marriage becomes void on account of the existence of a previous wife.
The prosecution has to prove the following ingredients —
(1) That the accused has already been married to some person.
(2) That the accused married another person.
(3) That the second marriage was void by the reason of its taking place during the life of the first spouse.
Marriage strict proof necessary to prove adultery or bigamy:
In a prosecution under Section 494 (bigamy) and 497 (adultery), ‘marriage’ must be strictly proved. Any admission, tacit or otherwise, of marriage would not be sufficient. It is necessary for the complainant to give strict proof of marriage.
In a country like India where registration of marriage is not common, it is absolutely necessary to prove the facts and circumstances relating to the alleged ceremony of marriage to enable the Court to determine whether legal marriage did take place.
Where one of the essential requirements of marriage has not been performed, the marriage is void and the marriage being void the accused cannot be convicted for bigamy. Similarly when there is no substantive proof of either marriage provisions of this section cannot be attracted.
Continuous absence for seven years of the husband or wife will exempt a spouse from the scope of the section, provided that the real state of facts be disclosed to the person with whom the second marriage is contracted.