Tuesday, July 12, 2011

Bigamy Laws in India - Frequently Asked Questions

Bigamy Laws in India-Frequently Asked Questions:



Introduction: 





The polygamy is banned in most countries. In most countries, the second marriage is considered legally null and void, and prior consent from a prior spouse makes no difference to the validity of the second marriage. 


In India, There was no bar in customary Hindu Law to a man entering second marriage. However, the customary law was codified by the enactment of the Hindu Marriage Act in 1956, which declared  a second marriage ‘void ‘during the subsistence of the first one.






In India, bigamy is an offence against marriage and it is also criminal offence under Indian Penal laws. The bigamy law applicable to Hindus, Jains, Buddhists ,Sikhs,Parsis,Christians [except Muslims]. Bigamy is one of the ground to seek divorce under Hindu Marriage Act 1955.The second wife is entitlement for maintenance ,she is not entitle for property  rights. In August 2009, the Law Commission of India  recommended that  bigamy should be made  a cognizable offence. 


The Law  Commission of India said in its 227th report to the government “Muslim law on bigamy is gravely faulty and conflicts with true Islamic law in letter and spirit,'',  the unanimous view of chairman Justice A R Lakshmanan and members Tahir Mahmood and B A Agrawal. “Bigamy is not very common among Muslims and cases of men having more than one wife at a time are few and far between” said commission.
The practice of second wife more prevalent in Hindus in India as per statistics and some people regard it as status symbol, The Tamil Nadu C.M ,M Karunanidhi is good example of bigamous marriage. 

Indian Penal code 1860, Section 494. 




Marrying again during lifetime of husband or wife: Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception-This section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction ,nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Frequently Asked Questions:



What is Bigamy?

A person commits bigamy when he/she:
  • When  husband or wife living,
  • marries ,but  such marriage is void,
  • by reason of its taking place during the life of husband or wife.



When is Bigamy offence ?

Bigamy is an offence  provided first husband or wife is alive. Section 5 of the Hindu Marriage Act, 1955, clearly states that a marriage could be valid only if neither of the party has a living spouse at the time of marriage. Section 11 of the Act declares second marriage to be null and void.



Bigamy shall not apply if: 

  • the first husband or wife is dead, or
  • the first marriage has been declared void by the Court of competent jurisdiction, or
  • the first marriage has been dissolved by divorce, or
  • the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.



Religious Conversion for contacting second is also bigamy?



In Sarla Mudgal v. Union of India (1995 AIR 1531 SC), the Supreme Court held that a man who has adopted Islam and renounced Hindu religion, marries again without taking divorce from the first wife, then such marriage is not legal. The person shall be punished for committing bigamy under section 494 of Indian Penal Code (IPC).





Where to file complaint under Bigamy law-section 494?



The person aggrieved can file a case of bigamy either in court or at the police station. The father of an aggrieved wife can also make a complaint under section 494/495 of the Indian Penal Code. A petition for declaring the second marriage as void can be filed by the parties of second marriage and not the first spouse.





Proof not required for for lodging complaints under Bigamy law





The Supreme Court has held that  while lodging a criminal complaint it is not necessary for the aggrieved party to prove that marriage ceremonies were performed as it is for the trial court to decide the veracity of the allegations





If person hides first marriage and contacts second marriage ?





Complaint for cheating can be filed under section 415 of IPC in case the person hides the fact of first marriage.






What is Punishment under the Act?




 
Bigamy is a non-cognizable offence. It is bailable and compoundable with the permission of court if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, which may extend till 7 years or fine or both. In case the person charged of bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be punished with imprisonment of up to 10 years or fine or both. Such offence under section 495 is not compoundable. 





Attending 2nd marriage is abetting bigamy?



"It is a settled law that mere participation in the second marriage would not ipso-facto make the relatives or the participants liable for abetment to bigamy since abetment connotes an active suggestion or support to the commission of the crime.” ruled Delhi High Court.

In India ,Catholics could face bigamy charges after annulment, remarriage?

 

 

Catholics in India who remarry after the Church annuls a prior union could still face bigamy charges under the country’s laws.



Whether applicable to Schedule tribes?



This penal provision will not apply if the offender is a member of the Schedule Tribes.



Registration of Marriage compulsory?



In order to stop second marriages and child marriages ,the registration of marriages is made compulsory as directions of Supreme Court 



Bigamy &Hindu Law of Succession ?





As per  Hindu code, only the first wife is a legal heir of the husband while the second wife is not entitled to any share in the ancestral estate and, if the husband has died without leaving a will, even in his self-acquired property. Once the second marriage is declared null and void, the wife concerned cannot even claim maintenance as a matter of right. The high court of Bombay at Goa has held that the first wife is entitled to half the share while the share of the second wife in the property of the husband is 1/8th. While ruling that a second wife marrying in good faith has a share in the estate of her husband. The court ruled that in such cases the first wife gets half the share, the second wife is entitled to 1/8th of the share and the remaining 3/8th is to be shared among the children from both marriages.





Can children born out of wedlock  can inherit father ancestral property?





The Supreme Court has ruled that children born out of wedlock have the right to inherit their father’s ancestral property.In  Revanasiddappa vs Mallikarjun case ,  Justices G.S. Singhvi and A.K. Ganguly ruled that children from a second wife had rights to their father’s ancestral property.





What is an live in relationship& applicability of bigamy laws?



The supreme court of India in Kushboo case virtually equated Live –in relationship to marital relationship. In another case ,the supreme court also said Children born out of live-in are not illegitimate.  “The live-in- relationship if continued for such a long time, cannot be termed in as "walk in and walk out" relationship and there is a presumption of marriage between them ..”Supreme Court in 2004 in the Rameshchandra Daga vs Rameshwari Daga case ,where the maintenance rights of women in “informal relationships or invalid marriages” were upheld.These cases virtually encourage relationship outside-marriage,this created confusion in the minds of people. 



The law of bigamy is not applicable to live- in relationship as there is no legally contacted marriage. In order to prove 
offence of bigamy ,there should ample evidence to prove they have contacted second marriage without nullifying the first marriage.



 The Section 489 A  of Indian Penal Code ,1860,its  applicability  to second wife?

The section 498 A of IPC is not applicable to second wife 






Hence ,these some of frequently asked questions about law governing the offence of "Bigamy". 

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