Bigamy in India

Bigamy was prevalent in India since the Vedic times. Kings and princes used to marry more than once. It was never considered an offence until the enactment of the Indian Penal Code in 1860. 

Section 494 of the IPC explicitly mentions the offence of bigamy. It states that whoever despite having a husband or a wife living, marries again during the lifetime of such husband or wife shall be liable to punishment which may extend up to seven years of imprisonment or fine. 

Section 495 of the IPC also states that concealing the fact of a former marriage by the husband or wife is a punishable offence.

Section 17 of the Hindu Marriage Act 1955 states that
any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code  shall apply accordingly.

Essential ingredients of bigamy

  1. The main ingredient of bigamy is the existence of a previously contracted marriage. It is necessary to prove that at the time of the second marriage, the person was already married.
  2. Both the marriages, first as well as second, should be valid marriages to attract the provisions of this section.
  3. The second marriage has to be void only because the marriage was done during the lifetime of the first husband or wife, and not for any other reason.

The enactment of the Hindu Marriage Act in 1955 changed the system of marriages amongst the Hindus. Before the Act, polygamy was accepted amongst the Hindus. This Act prohibited the practice of polygamy. Section 5(i) of the Act states that for a valid marriage both the parties should not have spouses living at the time of marriage. 


Exceptions:

  • If the first marriage was declared void by a competent jurisdiction or if the previous marriage.
     
  • If the first husband or wife have been continually absent from the life of the party contracting the second marriage for a space of seven years then the second marriage would not constitute bigamy even though the spouse from previous marriage is still alive when the second marriage takes place given that he or she at the time of the second marriage has informed the party of second marriage about their first marriage.
     
  • The first marriage has been dissolved by divorce.

Religious Conversion For Second Marriage:

Converting to a religion where bigamy is legally permissible for the purpose of contracting a second marriage is against the law and such a second marriage is void. In Sarla Mugdal & others. v. Union of India, The Court held that the first marriage would have to be dissolved under the Hindu Marriage Act, 1955 in order for him to marry again. Therefore, the first marriage is still legally valid under the Hindu law and the second marriage which was solemnized after his conversion to Islam would be void and the man will be punished bigamy under section 49 of the Indian Penal Code, 1860. 

Position Of Bigamy In Live-In Relationships:

When a married person cohabits with an unmarried person for a long time, then it will not constitute the offence of bigamy. The Supreme Court has held that live-in relationship which have continued for a long time cannot be termed in as walk in and walk out relationship as there is a presumption of marriage between them. It has also held that children born out of live-in relationships are not illegitimate and are entitled to inherit properties from their parents. The law of bigamy is not applicable when it comes to live-in relationships because there were no legally contracted marriage or performance of any marriage rituals. Bigamy can be proved only when there is ample evidence that the party contracted a second marriage without nullifying their first marriage.

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