Essay On The Concept Of Bigamy Under Bhartiya Nyaya Sanhita {Sec82(1)&82(2)} . Is It A Sin, Discussed With Relevent Cases?

Author(s): Jayant Kumar

Paper Details: Volume 3, Issue 1

Citation: IJLSSS 3(1) 13

Page No: 115 – 126

ABSTRACT

According to Hindus, marriage is an important family institution. It is considered as one of the Samskaras as the birth of the person arises out of a carnal connection. The importance of this institution was regarded so highly by the Hindu dharma sastras that with this ceremony, a person changes his ashram and enters the new ashram called grihasthasram. A wife is regarded as a friend bestowed by God, and without her, a man is incapacitated to perform many religious ceremonies. Macaulay being an Englishman and added to it a bachelor, he relegated the offences related to marriage to the last portion of BNS. If an orthodox Hindu married man were to be the author of the code, he would have placed this chapter after “Offences against Religion” and before “Offences against Human Life and Body”. This article deals with the sins and problems prevailing in the society due to Bigamy as an offence dealing with women and family.

Bigamy Marriage Cases Bhartiya Nyaya Sanhita Hindu Muslim Offences

BIGAMY: INTRODUCTION

The majority of systems around the world adhere to the well-known monogamous and single marriage concepts. Nevertheless, there are also some exceptions to this rule. Under their laws, Muslim, Parsi, Christian, and Hindu women are expected to adhere to the principle of monogamy in India. According to India’s Bhartiya Nyaya Sanhita (BNS), it is illegal to marry someone else when you are married to someone else. This practice is known as ‘Bigamy.’ Sanhita 2024, Section 82(1) of Bhartiya Nyaya. Marrying again while a husband/wife is still alive: Anyone who marries while a husband or wife is still alive faces a maximum punishment of seven years in prison of any type and a hefty fine. This is because the marriage is null and void. After all, it took place during their lifetime.

EXCEPTION

This provision does not apply to people whose marriage to a former spouse has been ruled invalid by a competent jurisdiction court, nor to people who marry someone else while the former spouse is still alive if the former spouse has been away from them continuously for seven years and has not been contacted during that time. However, the one entering into the new marriage must, to the best of their knowledge, inform the other party entering into the new marriage of the actual state of affairs before the marriage. However, only when the second operation was carried out lawfully to grant it a legally recognized marriage status does this infraction arise. Otherwise, there wouldn’t be a second marriage in the first place, a second wife, as well as bigamy.

BIGAMY- LEGAL DEFINITION?

Bigamy is committed when a person: -has a partner who is still alive; -remarries, although the new marriage is null and void as a result of it happening within the former spouse’s lifetime; or -marries again. Section 82(1)BNS shall NOT apply if:

The initial partner has passed away, or
The court has the necessary authority to declare the first marriage invalid, or
The initial marriage was ended by a divorce, or
For seven years, the first spouse has been either nonexistent or continuously absent.

Here the individual getting married has to let the other person know about this. Converting to a different religion to be married again Converting to another religion does not release a Hindu from the responsibilities of his previous Hindu marriage. When he enters into a 2^nd marriage after apostasy, he will therefore be regarded as a Hindu, and the rules of this section will be applicable. Since renunciation of Islam doesn’t terminate a marriage, Muslim women who wish to remarry without being subject to the section’s regulations must acquire a court-issued declaration of divorce.To put it another way, changing one’s religion does not automatically provide one the freedom to get married again without the restrictions of this section; one will still be bound by the specific laws of the religion they were practicing at the time of their marriage.

CASE LAW

“In Sarla Mudgal v. Union of India (1995 AIR 1531 SC)”

The SC (Supreme Court) ruled that it is illegal for a man who has transformed to Islam and abandoned Hinduism to remarry without first divorcing his first wife. Bigamy will result in punishment under section 82(1) of the BNS.

KANWAL RAM V. HP ADMINISTRATION

The SC ruled that proof is required for the essential rites of a second marriage. Regardless of the accused’s admission of guilt, the second marriage’s validity must still be established. If not, it will be regarded as a simple act of adultery rather than bigamy.

What if the person hides the first marriage and contracts another one? A complaint for cheating may be lodged under section 318(1) of the BNS.

WHAT IS THE PUNISHMENT UNDER THE ACT?

Bigamy is a crime that cannot be recognized. If the crime is carried out following section 82(1) of the BNS, it is subject to bail and, with the consent of the court, can be compounded. Fines, up to 7 years in jail, or both are possible punishments. A person accused of bigamy faces a maximum 10-year prison sentence, a fine, or both if they performed the second marriage while concealing the original marriage. According to section 82(2), such an offense is not compoundable.

ATTENDING 2ND MARRIAGE IS ABETTING BIGAMY?

“Since abetment implies an active recommendation or support for the conduct of a crime, it is a well-established legal principle that merely taking part in a second marriage does not automatically subject the participants or their relatives to liability for aiding and abetting bigamy.”

ruled Delhi High Court. Scheduled Tribes’ (ST) current status If the perpetrator belongs to one of the ST, this penal clause will not apply.

REGISTRATION OF MARRIAGE COMPULSORY?

The SC has ordered that marriage registration be mandatory in order to prevent underage weddings and second marriages.

CAN CHILDREN BORN OUT OF WEDLOCK INHERIT THEIR FATHERS’ ANCESTRAL PROPERTY?

According to a SC decision, children born outside of marriage had beenallowedfor succession to their father’s estate.“In Revanasiddappa v. Mallikarjun, Justices G.S. Singhvi and A.K. Ganguly” determined that the offspring of a 2^nd woman has a human right to theancestral property of the father.

In India, it is illegal to get married once more while the previous marriage is still intact, and the connection that results from this is void. By Section 5 of “HMA (Hindu Marriage Act)”, of 1955, among needs for a legal marriage is that neither partner must be married during the union. Section 11 of the Act stipulates that 2^nd marriages may be rendered invalid.

Only when the husband or wife is still living does bigamy become a crime. Even if the first wife gives her consent, it is still illegal.

It will not apply,

• if either spouse of the initial marriage has passed away or

• if a divorce decision has been issued ending the first marriage or

• The previous marriage is null and void or has been ruled such by a nullity decree. A 2^ndmarriage consummated 7 years after the absence of a spouse is immune from punishment under Section 82(1) of the BNS.

“In Sarla Mudgal v. Union of India (1995 air 1531 SC)”, the SC held that,

• This marriage is illegal if a man who formerly practiced Hinduism converted to Islam and subsequently remarried without divorcing his wife.

• Section 82(1) will be used to punish him for bigamy. BNS Bigamy is a non-cognizable offense that can be compounded with the court’s approval and is subject to bail. The maximum penalty is either a fine, 7 years in prison, or both. The punishment for the crime of bigamy, which involves hiding the prior marriage, is a fine, 10 years in prison, or both. Nevertheless, there is no compounding for this offense under section 82(2). Regarding the second wife, she might request temporary maintenance from her husband even though she has no claim to any of his possessions.

“In Laxmibai v. Ayodhaya Prasad”, it had been decided that the terms ‘wife’ and ‘husband,’ as applied in Section 24 of HMA, shouldn’t be taken literally. The phrase should refer to someone professing to be a husband or wife.

“In Rajesh Bai v. Shantabai”, A female whose marriage is invalidated by the presence of other spouse is permitted to assistance pursuant to section 25 of the Act. Section 20 permits interim maintenance as well. The children of the second wife have the right to a portion of their father’s independently acquired assets.

PROCESS FOR SOLUTION

Complaint Under which Section? In cases of bigamy, only the person who has been wronged may file a complaint. If the wife is the one who feels wronged, her father may file a complaint under BSA sections 82(1) and 82(2). A petition for the declaration of 2^nd marriage’s nullity may solely be submitted by the spouses involved, excluding the first wife. Section 415 BNS also allows for the filing of a cheating charge for dishonestly misleading someone by concealing the first marriage’s maintenance.

BIGAMY UNDER CIVIL MARRIAGE

LAWS SPECIAL MARRIAGE ACT 1954

According to the “Special Marriage Act (SMA)” of 1954, monogamy is the norm. According to Section 4(a) of the Act, “neither party has a spouse living” is the most important requirement for the civil marriage’s solemnization. The Act has two distinct punitive penalties for bigamy. “Any person who, while married, facilitates the solemnization of their own marriage under this Act shall be believed to have committed a crime under section 82(1) or section 82(2) of the BNS, as applicable, as well as the marriage solemnized shall be rendered invalid unless otherwise stipulated in Chapter III.” If an individual who is already married in any jurisdiction fraudulently enters into a legitimate marriage, this provision of Section 43 of the Act shall apply.The second clause in Section 44, as copied below, pertains to individuals who were married under the SMA and subsequently marry again under a different legal framework. It reads:

“Anyone whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in Section 82(1) and Section 82(2) of the BSA, for the offence of 16 marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.”

Chapter III of the Act, as cited in Section 43 above, stipulates that a marriage solemnized by religious or customary rituals may be converted into the civil marriage through registering it under the Act.Section 15(b) stipulates that ‘neither party has at the time of registration more than one spouse living’for this capability to be available. Under this Act a person with multiple living spouses who falsely registers both marriages will be convicted of significantly submitting a false statement, criminal under “Section 45 of the Act”. Regardless of the couples’ religious beliefs, the SMA’s anti-bigamy restrictions apply to all marriages entered into under its provisions. A court has explicitly ruled that a Muslim will be subject to the Act’s anti-bigamy provisions if he enters into a civil marriage under the SMA rather than his law.

“S. Radhika Sameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad 1997 CriLJ 1655 (AP)”.Moreover, it is unclear from the wording of the Act whether the clause in Section 44 that was quoted above will apply if one who has registered his previous marriage under Section 15 of the SMA enters into a second bigamous marriage. The meaning of the phrase ‘Save as otherwise provided in Chapter III’ in Section 43 is unclear. The Act’s anti-bigamy provisions should also apply in this case, since a religious or customary marriage that is registered after the fact becomes a 17 legal marriage for all purposes.

FOREIGN MARRIAGE ACT 1969

This Act makes it easier for 2 Indians or 1 Indian as well as a foreigner to get married in a civil ceremony abroad. This Act also enforces monogamy; Section 4(a) described that ‘neither party has a spouse living’ is the first need for a marriage to be formally consummated. Provided that the monogamy criterion and the additional stipulations outlined in Section 4 of the Act are satisfied, a pre-existing marriage between 2 Indians or between an Indian and a foreign national, legally consummated in another jurisdiction according to local law, may be registered under Foreign Marriage Act.At that juncture, it will be deemed to have been solemnized by Section 17 of the aforementioned Act. The Foreign Marriage Act’s Section 19’s anti-bigamy penal clause, which is reprinted below, applies to marriages that were first consummated following its provisions as well as those that were solemnized following a foreign law but were subsequently registered under the Foreign Marriage Act:

The Foreign Marriage Act’s anti-bigamy provisions are applicable in all situations falling under its jurisdiction, irrespective of the religious beliefs of the parties involved, just like the SMA of 1954. The effects of a change of religion Neither the converting partner nor another spouse may file for divorce on grounds of religious change, and neither party faces any legal consequences for converting to a civil marriage after marriage. Nevertheless, the convert remains bound through the stipulations of the SMA of 1954 or the Foreign Marriage Act of 1969, as relevant. In such a case, the BNS’s anti-bigamy rules will still apply if one of the parties remarries after changing their religion without getting a divorce or a declaration of nullity.

Bigamy is illegal under non-Muslim marriage laws now in effect in the nation, and bigamous marriages are regarded as null and void. The anti-bigamy provisions of the BNS, which employ bigamous marriages if they are declared void by the governing law due to their bigamous nature, are therefore applicable to marriages to which any of these laws apply. [Sections 82(1) &82(2)].

It has long been a common and unhealthy habit for married males whose personal laws prohibit bigamy to convert to Islam to get into a 2^nd bigamous marriage. They do this action due to they believe it will enable them to remarry without the dissolution of their initial marriage. By ruling in “Sarla Mudgal v. Union of India, AIR 1995 SC 1531”, the SC of India prohibited this practice.

After 5 years, in “Lily Thomas v. Union of India (2000) 6 SCC 224,” the decision was upheld. While these cases pertain to weddings sanctioned by the HMA of 1955, their ratio decidendi would certainly extend to each marriages governed by laws that prohibit bigamy.⁹Although the SC’s ruling on the matter is now enforceable nationwide, it is nevertheless frequently broken. In recent days, two prominent incidents of illegal bigamy through conversion to Islam have garnered media attention. In a notable instance, a distinguished politician, already a husband along with father, vanished without explanation and subsequently reemerged a month later with a new spouse, asserting their marital status under Islamic law, to which they were both recently converted.The new bride, a lawyer who has had a position as a law officer in her state’s administration, continues to publicly maintain that her marriage to convert-bigamist is legitimate because he converted to Islam amply demonstrates the widespread ignorance of the law that the SC has established in this area among the legal community. In the second instance, an Indian army physician who was married and serving in Afghanistan converted to Islam to wed a Muslim Afghan woman who was working as an interpreter for him. The impoverished girl was not informed of his marital history and didn’t find out until years after he left her in Afghanistan and went to India. Naturally, these are not the only well-known incidents of married non-Muslim males who claim to have converted to Islam defrauding their first spouses; many of these situations go overlooked. Therefore, it is necessary to add the required clauses to all current legislative enactments governing marriages between different groups to sufficiently clarify the legal position as decided by the SC. 10. This report looks at bigamy’s current legal status in India and offers solutions to curb its societal ills, including fake conversion.Based plural marriage numbers in a particular case as well asthe gender of the parties involved, etymologists utilize different terms for distinct types of plural marriages, like polygyny (bigamy by men), polygamy (triple or more marriages by a man/woman), polyandry (bigamy by women), and bigamy (double marriages by a man/woman). To simplify and enhance clarity, this study employs the terms ‘bigamy’ and ‘polygamy,’ which, in contrast to monogamy, may denote any plural marriage irrespective of gender or the number of parteners.

PENAL LAW ON BIGAMY

BIGAMY IN GENERAL

Two provisions about bigamy are found in the “Chapter on Offences relating to Marriage under the BNS of 2024.”Married people who remarry without telling their second husband about their first marriage are covered by the first one, while those who do so by keeping their first marriage a secret from their second husband are covered by the second. According to Section 82(1) of the Code, “In addition to possible fines, anybody who marries during their parterner is still living and the marriage is invalid due to it took place during their lifetime faces up to seven years in prison of any type.

Exception-

This part does not apply to a person if their former spouse has been missing from them continuously for seven years as well as has not been heard from by aliving person throughout that time. Furthermore, it does not apply to anybody who gets married again while that spouse is still living or to anybody whose marriage with that spouse has been professed null and void by a court of competent jurisdiction. But before the marriage takes place, the person getting married must, to the best of their knowledge, tell another party the truth about the situation.” Section 82(2) of the BNS states that

“whoever commits the offence defined in the last preceding section 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 ten years, and shall also be liable to fine.”

It refers to cases of bigamy in which the perpetrator deceives the second spouse.It will be evident that the BNS’s provisions would only be used if the law otherwise relevant to parties to a given case declared the second marriage null and void due to bigamous status; otherwise, they would not be applied. Therefore, the BNS’s anti-bigamy rules employ to everyone whose marriages had been regulated by anyone of the following laws, all of which consider a man or woman’s second bigamous marriage to be null and void:

(i)Christian Marriage Act 1872 13

(ii) “Foreign Marriage Act 1969”

(iii) Parsi Marriage and Divorce Act 1936

(iv) HMA 1955

(v) SMA 1954

The BNS rules on bigamy only apply to women because, by traditional Muslim law, men are allowed to have numerous marriages. This is because Muslim law views a married woman’s second bigamous marriage as void. Naturally, a close examination of this belief’s validity is necessary. If tribal men and women’s numerous marriages are not regarded as null and void by their customary law and practice, then the BNS’s anti-bigamy rules don’t likewise apply to them. Bythe court ruling, Scheduled Tribe people are exempt from Section 82(1) of the BNS unless the relevant tribal law declares a bigamous marriage valid and invalid. “Surajmani Stella Kujur (Dr.) v. Durga Charan Hansdah AIR 2001 SC 938” is one example. Character of the Offence According to Section 82(1) of the BNS, the offended spouse may compound the offense with the court’s approval, post bail, and not be recognized. In the case of Narotam Singh v. State of Punjab AIR 1978 SC 1542, it was upheld that the offense is compoundable with the parties’ consent.However, a local change in 1992 made the offense under Section 82(1) in State of Andhra Pradesh cognizable, non-bailable, and non-compoundable. 14 In contrast to Section 82(1), the offense under Section 82(2) of Penal Code is bailable, non-cognizable, as well as non-compoundable. Notably, this offense is now cognizable and nonbailable in Andhra Pradesh as well. BNS Provisions in Operation While bigamy by men is common in society, bigamy by women is extremely uncommon. However, the majority of bigamy instances go unpunished since the BNS’s anti-bigamy clauses are non-cognizable (with the exception of Andhra Pradesh). All communities’ resentful first spouses endure the hardships brought on by bigamy in silence. Additionally, there is a tendency in society to circumvent the BNS regulations by using gadgets that are supposedly ‘legal.’ These include performing faulty and incomplete marriage rituals, living together outside of marriage, and feigning a religious conversion. Changes to the BNS provisions or associated procedural law have been contemplated to enhance their functionality only in Andhra Pradesh.

JUDICIAL RULINGS ON BIGAMY BY CONVERSION

The desire for the conversionto Islam to enter into a second bigamous marriage has long been a source of brewing dissatisfaction within the judiciary, and the courts have attempted to regulate it.

“In Vilayat Raj v Sunila AIR 1983 Delhi 351”A Delhi High Court judge named Leela Seth ruled that a Hindu who was married under Act would still be covered by it even if he later converted to Islam and might still file for divorce under the Act (without his own conversion).

In re P Nagesashayya (1988) Mat LR 123The Andhra Pradesh High Court’s Justice Bhaskar Rao harshly condemned the harmful practice of the bigamy through conversion, noting that long-standing norm that the motivation for conversion could never be questioned ought to be abandoned, at least when bigamy and conversion were involved.

Similar results were observed in the 1988 CriLJ 1849 case of “B Chandra Manikyamma v. B. Sudarsana Rao alias Saleem Mohammed. In Smt. Sarla Mudgal v. Union of India (1995) 3 SCC 635”, the SC concluded that any bigamous marriage involving a Hindu who converts to Islam is void and subject to penalties under IPC. The court noticed: 35

“As it is neither the objective of Islam nor the purpose of the progressive Muslim community to encourage husbands under Hindu religion converting to Islam solely to evade their laws by remarrying, the courts may be influenced to interpret the laws in a manner that prohibits the converted Hindu husband from remarrying without legally dissolving his prior marriage.”

The court articulated the rationale behind the HMA’s authority to annul a married non-Muslim’s subsequent bigamous marriage following their conversion to Islam:

“The marriage would contravene the Act, which firmly defends monogamy, even while it is true that a Hindu husband’s marriage that was formally consummated following converting to Islam might not be void under the Act as he is no longer a Hindu. A description of ‘void’ for the Act is given in Section 11. Its significance is restricted within the confines of the section’s definition.However, according to Section 494 IPC, the same expression has a different meaning and needs to be interpreted meaningfully. Section 494 IPC’s definition of ‘void’ has been used more broadly. If a marriage violates any legal provisions, it is deemed null and void, as stated in Section 494 IPC. A Hindu marriage formally completed under the Act can only be dissolved on the circumstances listed therein. Until the Act ends the Hindu marriage, no spouse may get married again. The Act stated that simply becoming an Islamic convert and remarrying would not dissolve a Hindu marriage. Under Section 494 of the IPC, a convert’s subsequent marriage is rendered void as it contravenes the Act.³⁶ Any activity that violates the essential components of the law is fundamentally unlawful. The second marriage’s actualcause is void is because of the presence of the first one, which is not ended even by the husband’s conversion. It would be a disdain for the facts and a breach of the spirit of the statute if the convert’s second marriage were allowed.”

The court further noted that an apostate husband’s second marriage under the HMA would be against natural justice as well as the principles of equity, justice, and good conscience. The court came to the following conclusion:

“The cause of justice would be advanced by our interpretation of Section 494 IPC. The two legal systems must coexist peacefully, just as the two communities must coexist peacefully. Our interpretation of Section 494 IPC leads to the conclusion that both Hindu and Muslim law would operate within their respective spheres without interfering with one another’s private laws.”

Justice R.M. Sahai was correct when he proclaimed that ‘much misapprehension prevails about bigamy in Islam’ in a different finding in the Sarla Mudgal case.

The Qur’anic perspective on bigamy, sometimes subject to derision, depicts 2females joyfully married to same male, each entitled to all the rights and expectations of a legally wedded wife. The Qur’an encouraged monogamy in situations where this was not feasible. Despite the necessity for Muslims to strictly follow Qur’anic regulations from birth, there exists a prevalent misconception that Qur’an permits a non-Muslim husband, who has expelled his wife without a formal divorce, to remarry by pretending a conversion to Islam. It is true that Qur’anic justice is upheld when bigamous marriages between non-Muslim husbands that were entered into in such a deceptive way are not recognized.

The SC’s Sarla Mudgal decision is indisputable on this point. Certain individuals perceived the Sarla Mudgal verdict negatively since it violated fundamental human right to freedom of conscience along with the practice of religion as enshrined in “Article 25 of the Constitution”. The SC considered the case and rejected the notion. The court noted in “Lily Thomas v. Union of India (2000) 6 SCC 227”:

“The claim that the Court’s ruling violates freedom of conscience along with freedom of practice, profession, as well as propagation of religion is likewise implausible and seems to have been made up by those who are accused of breaking the law by trying to hide behind the protection of the fundamental right provided by Article 25 of the Constitution. The disputed verdict has not infringed upon anyone’s freedom of conscience or the dissemination of religion. The type of freedom that does not violate the freedom of others is the one that is safeguarded by Article 25 of the Constitution. According to the constitutional framework, everyone had been the fundamental right to entertain their own religious beliefs and to express them in a way that respects the freedoms of others and their religion. In the Sarla Mudgal case, it was argued that it would be against Islam, the religion that the convert had chosen, to hold a hidden Hindu accountable under the Penal Code. Such a plea shows how ignorant the petitioners are of the principles and teachings of Islam.”

The court stated the following regarding the actual status of bigamy license under traditional Muslim law:

“Even under Muslim law, a spouse is not automatically granted many marriages. Therefore, it would be against Islamic law to argue that convert has the right to practice bigamy even though his marriage is still in effect under the law he was a part of prior to his conversion. The general penal legislation that is in effect in the nation does not allow lawbreakers who have entered into a second marriage to argue that the marriage should not be the focus of prosecution. Unreliable litigants convicted of their prior legal transgressions, who appear to indulge in illicit sensual desires, must not be allowed to hinder the progressive and expansive interpretation of Islamic law. No such convertee has ever been denied the opportunity to exercise any other religious right to achieve their spiritual objectives. Islam, a revered, progressive, and pious faith with a logical perspective, cannot be reduced to a limited idea, as the accused lawbreakers have attempted to do”.

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