This article has been written by Ms. Mahi Agrawal, a first-year student at Hidayatullah National Law University, Raipur.
Abstract:
This article explores Hindu marriage complexities, emphasizing its sacramental and contractual aspects under the Hindu Marriage Act. Analysing the offense of bigamy, it outlines factors and exceptions. It clarifies remedies under Sections 17 and 19, and scrutinises children’s status from void and voidable marriages. Amendments to Section 16(3) are examined, reflecting changing perspectives. The uniform application of Section 494 of IPC, allowing prosecution regardless of personal law is discussed.
Hindu marriage is often viewed as a sacred bond rather than a mere social agreement, with varying perspectives on its nature. Some see it as an indissoluble and sacramental union, while others acknowledge the provision for divorce under Section 13 of the Hindu Marriage Act 1955, suggesting a dissoluble and contractual aspect. The recognition of Hindu marriage as a sacrament is reflected in Section 7 of the Hindu Marriage Act, highlighting the significance of customary rites and ceremonies. It states that “a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.” The Supreme Court underscores the essential elements of invoking the sacred fire and performing Satapadi for a traditional Hindu marriage. The Act also deems a marriage void if either party has a living spouse at the time of marriage, addressing the offense of bigamy through the incorporation of Section 494 and 495 in Section 17. The concept of divorce among Hindus was introduced with the enactment of the Hindu Marriage Act in 1955. The Act outlines the requirements for marriage in Section 5, with Section 5(i) specifically emphasizing monogamous marriage, stating “neither party has a spouse living at the time of the marriage.”
Key Elements for Establishing Bigamy
The fundamental factor contributing to the offense of bigamy is existence of a prior marriage. If it is established that either party to the current marriage had previously entered into a marriage that is still valid when the second marriage occurs, and if the spouse from the initial marriage is still alive, bigamy constitutes both a violation of marital norms and a criminal offense. Further, if the initial marriage was legally valid, the second marriage is deemed void. Conversely, if the first marriage lacked legal validity, the second marriage does not qualify as bigamy. To establish the occurrence of bigamy in the second marriage, it is imperative that the second marriage itself is legally valid. This includes adherence to all necessary rituals prescribed by Hindu law during the marriage ceremony. Without legal validity in the second marriage, the charge of bigamy does not apply, as there is no substantiated occurrence of a second marriage. Also, the first spouse from the proceeding marriage must be alive and remain the legally recognised spouse while the second marriage is solemnized. This condition is essential in determining the culpability in the context of the second marriage. In the legal case of M. Saravana Porselvi v. A.R. Chandrashekar, the appellant was formerly married to the respondent, and they were residing separately. Both parties mutually agreed to divorce to a divorce, with the appellant receiving permanent alimony as a part of the settlement. Not known to the appellant, the respondent entered into a second marriage and had two children from that union. When the appellant filed a petition against the respondent, the Court determined that legal action for the offense of bigamy can be initiated at any time following the registration of the second marriage. There is no time limit for commencing proceedings against the crime of bigamy.
Exceptions to Bigamy
Exceptions to the concept of bigamy include instances where the first marriage has been legally declared void by a competent jurisdiction or when the first marriage was inherently void or was never valid from the outset. It was established in Bhaurao Lokande v. State of Maharashtra that the term “marries” in Section 494 of the Indian Penal Code inherently implies a valid marriage. The Court emphasised that for the offense of bigamy to be applicable under Section 494, the marriage in question must be a valid one according to the relevant laws governing the parties involved. In cases where the marriage lacks validity under applicable laws, the question of it being void due to occurring during the life of husband or wife doesn’t arise. Further, in the case of Padi v. Union of India, when a husband entered into a second marriage while his first wife is still alive, the second marriage was deemed void. Consequently, when the second wife subsequently entered into another marriage with a different man, she wasn’t deemed guilty of the offense under Section 494 of the Indian Penal Code. This is because her prior marriage was legally void. For the second marriage to be considered valid, it is imperative that the spouse from the first marriage is not alive at the time of the second marriage.
Another exception arises when the first husband or wife has been consistently absent from the life of the individual entering into the second marriage for a continuous period of seven years. In such cases, even though the spouse from the initial marriage is still alive at the time of the second marriage, it does not constitute bigamy, provided that the absent spouse, within the seven-year span, has communicated to the party entering the second marriage about the existence of their prior marriage. This communication serves as a mitigating factor, exempting the subsequent marriage from being classified as bigamous. As per Section 108 of the Indian Evidence Act 1872, an individual is presumed to be deceased if there is no information about them for a period of seven years. In the case of Veena Rani v. Jagdish Mitter, it was determined that this presumption is not applicable concerning the date of death; instead, it must be substantiated as a factual assertion by the individual relying on it. In an another case, a second wife filed a suit seeking recognition as the legally wedded wife, arguing that the first wife has been unheard for seven years. However, the claim regarding the absence for the first wife for seven years was not substantiated. Additionally, a resolution by the Gram Panchayat that purportedly dissolved the first marriage was deemed invalid because the first wife was not involved in the resolution. Consequently, any second marriage during the existence of the first marriage during the existence of the first marriage was declared null and void. Due to these findings, the Court did not grant the requested relief for a declaration as the legally wedded wife.
If the previous marriage ceases to exist due to legal dissolution, such as through divorce, it is not considered bigamy. Additionally, when a married individual cohabits with an unmarried partner, it does not amount to bigamy. The Supreme Court clarified that prolonged live-in relationship should not be considered as casual or transient, implying a presumption of marriage between the parties. The children corn out of such relationships are legitimate and have inheritance rights. In the case of Indra Sarma v. V.K.V. Sarma, the Supreme Court recognised live-in relationships as ‘relationships in the nature of marriage.’ It emphasised the three elements of common-law marriage: an agreement to be married, living together as husband and wife, and holding out to the public as a married couple. The common-law partnership entails shared responsibilities, mutual support and an obligation to maintain a common household. However, marriages in India adhere to personal religious laws or the Special Marriage Act. Though the woman was granted legal rights in the above case, bigamy does not apply to live-in relationships as they lack the legal formalities and rituals associated with marriage. Proof of bigamy requires substantial evidence of a second marriage without nullifying the first.
Right to Seek Remedy for Bigamy
Section 17 of the Hindu Marriage Act allows either party to the marriage to initiate legal proceedings for bigamy. This section specifically provides for initiating criminal proceedings under Section 494 and 495 of the IPC, and doesn’t authorise the filing of a suit for a perpetual injunction to restraint a husband from entering into a second marriage. Furthermore, Section 19 of the HMA designates the court of competent jurisdiction for the entertaining a petition seeking matrimonial remedies. However, the Supreme Court held that the section doesn’t expressly prevent a spouse from filing a suit under Section 9 of the CPC 1908, coupled with Section 34 of the Specific Relief Act 1963, which, if filed prior to the second marriage, can address the potential consequences. In Sona Ralsel v. Kiran Mayee Nayak, it was clarified that a wife claiming to be the first ‘legally wedded wife’ is not devoid of legal recourse. She can, indeed, initiate a civil suit to declare the marriage between her husband and the alleged second wife as void under provisions of Section 9 of CPC in conjunction with Section 34 of the Specific Relief Act 1963. However, she doesn’t possess the right to file a petition under Section 11 of the Hindu Marriage Act, which reads “on a petition presented by either party thereto against the other party.”
Status of Children Born out of Void and Voidable Marriages
In cases of a void marriage, the status of children is addressed by Section 16(1) of the Hindu Marriage Act. This section stipulates that any child born from a marriage deemed null and void under Section 11 is considered legitimate. On the other hand, for voidable marriages, Section 16(2) comes into play. If a decree of nullity is grated for a voidable marriage under Section 12, any child conceived before the decree is made is deemed legitimate. Determining the status of children from void or voidable marriages is a complex issue. This stands in contrast to children born from a valid marriage, where legitimacy is unquestioned. For instance, in a scenario where a second marriage occurs during the existence of the first but is found null and void under Section 11, any child born from such a marriage is considered legitimate and entitled to succession certificate. In cases where marriage is not validly solemnized, and no legal status is conferred upon the parties, and a child is born from it, Section 16 of the Act doesn’t apply. Such a child is not considered legitimate and is not entitled to inherit the property of the alleged father. In a situation where two wives claim to be married to a deceased individual, and children are born to both, the second wife, supported by a marriage certificate from the Marriage Registrar, was deemed the legally wedded wife and entitled to success to the deceased’s estate. The first wife, lacking proof of her marriage, was not entitled to inherit the estate, but her children were presumed legitimate and allowed to inherit.
With the amendment to Section 16(3) of the Hindu Marriage Act 1955, the traditional notion that offspring from void and voidable marriages are illegitimate ‘ipso-juri’ is no longer valid. The law now recognises the legitimate status of such children and acknowledges their rights in their parents’ property. In the case of Bhogadi Kannababu v. Vuggina Pydamma, the Court affirmed the inheritance daughters born from a second marriage conducted during the subsistence of the first. In another matter of Tusla & Ors. V. Durghatiya & Ors., the appellants brought their case before the court, asserting that they had not received a rightful share in the property left behind by their parents. This dispute arose in the context of their parents’ marriage, which was contested by the opposing claimants. In its ruling, the Court unequivocally established that children born within a live-in relationship cannot be stigmatised as illegitimate. Moreover, the Court went on to recognise and affirm the inheritance rights of such children, granting them a legal entitlement to a share in the family property. This precedent underscores the judiciary’s commitment to safeguarding the rights and legitimacy of children born from live-in relationships, establishing a crucial legal precedent in matters of familial inheritance and property rights.
The Kerala High Court held that Section 494 of the Indian Penal Code doesn’t differentiate based on religious affiliations such as Hindu, Muslim, or Christian. Any individual, regardless of their personal law, can be prosecuted for the offense of bigamy as long as the elements outlined in Section 494 are established. In conclusion, establishing bigamy hinges on key factors such as existence of a prior valid marriage and the legal validity of the second marriage. The right to seek a remedy for bigamy is granted under Section 17, allowing legal proceedings against the offense. The legal status of children born from void or voidable marriages is addressed by Section 16, acknowledging their legitimacy and inheritance rights.
REFERENCES
- This article was originally written by Prabisha Pradeep and published on Legal Service India. The link for the same is herein: https://www.legalserviceindia.com/legal/article-5521-the-position-of-bigamy-in-hindu-law.html
- This article was originally written by Vijendra Kumar and published on Journal of the Indian Law Institute. The link for the same is herein: