Bigamy includes both polygamy as
well as polyandry. It means taking a second husband or wife during the
sustenance of previous marriage.
Bigamy under the Indian Penal
Code
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 declared
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
Ingredients:
(1) The
accused spouse was already married
(2) During
the sustenance of first marriage, he contracted a second marriage
(3) Both
the marriages were valid in the sense that the essential ceremonies were duly
performed
Where customs allow bigamy[1],
the section has no application, however in other customs where monogamous
marriages are mandatory a person cannot be convicted of bigamy[2],
unless it can be proved that a custom makes bigamous marriages void.
Section 495: Same offence with
concealment of former marriage from person with whom subsequent marriage is
contracted.-- 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
Ingredients:
(1) The
accused is already married to some person
(2) Such
marriage is valid
(3) The
person to whom the accused was married was alive
(4) The
accused marries another person
(5) The
accused concealed from the second person the fact of the first marriage
Bigamy under personal laws
Hindu law: Bigamy is not allowed
under the provisions of section 5(i) of the Hindu marriage act, 1955. Under Section
11 of the Act, such marriages are void ab initio and Section 17 of the Act
provides that they are punishable under the provisions of IPC.
Muslim law: While a Muslim man
can have up to 4 wives at a time, marriage with a fifth wife during the
sustenance of these marriages is bigamous and hence void; a Muslim woman cannot
have more than one husband at a time. However, if a Muslim man marries under
Special Marriage Act, 1954, he would be guilty of bigamy under Section 494 IPC,
if he enters into another marriage under Muslim law.
Bigamy and conversion
In India, conversion does not
validate a bigamous marriage. In Sarla Mudgal v Union of India[3],
the Apex Court ruled that the change of religion does not give licence to
commit bigamy. It was further, affirmed in the case of Lily Thomas v Union of
India[4].
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