Friday 6 March 2015

Whether any citizen can be prosecuted for offence of bigamy irrespective of his/her personal law?


 Kerala High Court: On a petition filed by a public spirited person before this Court challenging that the provisions of Section 494 IPC are discriminatory on the ground of religion, a division bench of Ashok Bhushan and A.M. Shaffique JJ held that Section 494 IPC does not discriminate between Hindu/ Muslim/ Christian and can be proceeded against any citizen who commits the offence of bigamy irrespective of his/her personal law, provided that ingredients of Section 494 are made out.
In the instant case, looking at the increasing instances where culpable bigamous marriages have been resorted to harass and dupe innocent ladies in the name of personal law, a public spirited person filed a petition seeking a direction to register case under Section 494 of IPC against all citizens who commit the offence of bigamy irrespective of their personal laws. Rajit, the counsel for the petitioner contended that under Section 494 IPC there is no concept of any personal law and the section envisages punishment to everyone whosoever conduct a bigamous marriage.
The Court stated that “there cannot be any dispute to the submission as advanced by the counsel for the petitioner as the Indian Penal Code is a general code for India”. The Court read the crucial words in Section 494 IPC and made it clear that the main ingredient to attract Section 494 IPC is to prove that the marriage contracted (second marriage in the event of husband or wife living) is ‘void’ on account of husband or wife living.
The Court noted that “any marriage performed by a Hindu after enforcement of the Hindu Marriage Act, 1955 where a spouse is living is void, and the person contracting such marriage shall be punishable under Section 494 IPC for bigamy”. The Court further noted that “Muslim personal law allows a Mohammaden to take four wives together, therefore if a Muslim male marries a fifth wife he can very well be prosecuted under Section 494 IPC.  Similarly, a Muslim female contracting a second marriage can be proceeded with for offence under Section 494 IPC”. The Court concluded that Section 494 IPC does not discriminate between an offender belonging to Hindu/ Muslim/ Christian male or female belonging to any cast or creed and can be proceeded against any citizen irrespective of their personal laws provided that ingredients of Section 494 are made out.
The Court further made clear that a complaint under Section 198 (1) of CrPC for prosecution of offences against marriage can be made by a ‘person aggrieved by the offence’, therefore the prayer made by the petitioner (a public spirited person) cannot be entertained in the instant case, and accordingly dismissed the writ petition.
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

      THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN
                                &
            THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

    MONDAY, THE 23RD DAY OF FEBRUARY 2015

                   WP(C).NO. 4559 OF 2015 (S)
                   

       VENUGOPAL.K 
Vs

          UNION OF INDIA
       
               
           Dated this the 23rd day of February, 2015




      This Writ Petition, filed as a public interest litigation,

seeks a direction to register case under Section 494 of

the Indian Penal Code against all citizens who commit

the offence of bigamy irrespective of their personal law.

      2. Brief facts of the case         as stated in the Writ

Petition are:   Petitioner claimed to be an Indian male

running a footwear business.         He claimed to be actively

engaged in promoting social welfare.              The reason for

filing the Writ Petition as has been stated in paragraph 7

of the Writ Petition are: A lady called Afitha married one

Abdul Kareem on 30.04.2014. According to the said lady,


Abul Kareem married her as per the Muslim customary

rites after convincing           her that    his first wife was a

mental patient and he would look after the said Afitha

properly.           It is further stated that after the marriage

Abdul Kareem took the lady to his house and on the

next day the husband after taking 5 sovereigns of gold

ornaments dropped the lady in her relative's house and

thereafter did not bother to take care of the said lady.

The said lady has lodged a complaint                  against her

husband on which Crime No.1994 of 2014 was

registered for the offences punishable under Sections

406, 417, 420 and 498A IPC. It is stated in the Writ

Petition that there are various circumstances where

such culpable bigamous marriages have been resorted

to harass and dupe innocent                ladies in the name of

personal law. Petitioner claims to have submitted an

application for obtaining information under the Right to

Information Act regarding registration of marriages of



Muslim         male      who    has     already    one    wife    living.

Petitioner's case is that he has received answers from

the Director of Panchayaths where it is stated that in the

memorandum to be submitted for registration there is a

column regarding previous marital status and the same

has to be filled up by the person who is submitting the

application. Every marriage is valid                   based on the

marriage laws applicable to the parties as per Muslim

personal law, a Muslim person is permitted to conduct

four marriages at a time and there being no clarity in

the rules with regard to registration of such marriages

a    clarification        has     been     sought    for     from    the

Government.              In the above background petitioner has

come up with this Writ Petition with the following reliefs:

                "(a)   issue a Writ of Mandamus or any appropriate

       writ or direction commanding the respondents to register

       cases under Sec.494 IPC against all citizens, who commit

       the offence of bigamy, irrespective of their personal law.

                (b)    Issue  a     Writ of   Mandamus    or   any



       respondent to register a case under Sec.494 IPC against

       the 8th respondent.

                (c)    Declare that the offence of Sec.494 will be

       attracted against all classes of citizens who conduct a

       bigamous marriage irrespective of their personal law."


       3.      Learned counsel for the petitioner, Advocate

Rajit, submitted that Section 494 IPC does not

distinguish a Hindu/Muslim/Christian in so far as the

committal of the offence is concerned.                 It is submitted

that under Section 494 IPC no distinction can be made

between Hindu/Muslim/Christian in so far as the offence

of bigamy is concerned. It is clear that under Section

494 IPC there is no concept of any personal law and the

section envisages punishment to everyone whosoever

conduct a bigamous marriage.                  It is submitted that he

does not rely on the provisions of Article 44 of the

Constitution of India which contains the directive

principles of State policy enjoining                    the State to

endeavour to secure for the citizens a uniform civil code

throughout the territory of India.


       4.      We have considered the submissions of the

learned counsel for the petitioner and                   perused the

records.

       5.      Section 494 IPC is contained in Chapter XX

pertaining to (of offences relating to marriage). Section

494 is quoted below:

                "494. 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."


Section 494 begins with the words, "whoever having a

husband or wife living, marries....".             The Section does

not in any manner draw a distinction between a man or

woman of one community or another. The Indian Penal

Code is a general penal code for India.                    Thus there

cannot be any dispute to the submission as advanced by

the learned counsel for the petitioner that Section 494

IPC does not distinguish in so far as the offence of


bigamy is concerned by a Hindu/Muslim/Christian.

       6. Crucial words in Section 494 are "marries in any

case in which such marriage is void by reason of its

taking place during the life of such husband or wife."

Section 494 thus provides that any husband or wife who

has already married in the event of conducting a second

marriage he/she shall be punished with imprisonment in

the event "such marriage is void by reason of its taking

place during the life of such husband or wife."       The

above words refers to the second marriage, on conduct

of which the offence under Section 494 IPC arises. The

offence shall arise when such marriage (second

marriage in the event of husband or wife living) is void

on account of the husband or wife living. The converse

is that in the event the second marriage is not void, the

offence under Section 494 shall not arise. For eg., under

the Hindu Marriage Act, 1955, Section 5 of the Hindu

Marriage Act provides for condition for Hindu marriage.


Section 5 is quoted as below:

                 "5.   Conditions for a Hindu marriage.-          A

        marriage may be solemnized between any two Hindus, if

        the following conditions are fulfilled, namely:-

                 (i)   neither party has a spouse living at the

        time of marriage;

                 (ii)  at the time of the marriage, neither party-

                        (a)    is incapable of giving a valid
                  consent     to   it   in   consequence    of
                  unsoundness of mind; or

                        (b)    through capable of giving a
                  valid consent, has been suffering from
                  mental disorder of such a kind or to such an
                  extent as to be unfit for marriage and the
                  procreation of children; or

                        (c)    has been subject to recurrent
                  attacks of insanity.


                 (iii) the bridegroom has completed the age of

        twenty one years and the bride, the age of eighteen

        years at the time of the marriage;


                 (iv)  the parties are not within the degrees of

        prohibited relationship unless the custom or usage

        governing each of them permits of a marriage between

        the two;


                 (v)   the parties are not sapindas of each other,

        unless the custom or usage governing each of them

        permits of a marriage between the two."


       7.       Under Section 11 void marriage has been

defined.         Provisions says that any marriage solemnized

after the commencement of Act contravenes any of the

conditions specified in clauses (i), (iv) and (v) of Section

5, such marriage will be null and void.                    Thus any

marriage performed by a Hindu after enforcement of the

Hindu Marriage Act, 1955 where a spouse is living is

void marriage.           Thus any person contracting such

marriage shall be punishable under Section 494 IPC.

Section 17 of the Hindu Marriage Act provides for

punishment on bigamy which is to the following effect:

                "17. Punishment     of   bigamy.-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 (45 of

       1860) shall apply accordingly."


       8. Now we come to the marriage performed by a

Muslim which has been made an issue in this                      Writ

Petition seeking a direction to register an offence under


Section 494 IPC in the event of a Muslim man performs

a second marriage.

       9. Muslim personal law allowed a Mohammadan to

take four wives together. The challenge to Section 494

on the ground that it is ultra vires was repelled by the

Allahabad High Court in Kamala Kumari v. Mohan Lal

(II [1984] DMC 279 (Allahabad). It was argued before

the court that the provisions of Section 494 are

discriminatory on the ground of Religion. It was argued

that although under the Muslim Law a person can have

number of wives who will not be prosecuted for bigamy

but a Hindu who takes the second wife, is prosecuted for

bigamy is a clear case of discrimination. Repelling the

above argument, the High Court observed as follows:

                 "The crux always is whether the classification has

        been based on any good and real relation or the

        discrimination is arbitrary. The Constitution provided for

        the amendment of personal laws as well. I may refer to

        the concurrent list contained in the Constitution.       At

        serial No.5 marriage and divorce, infants and minors;


        adoption; wills, intestacy and succession; joint family and

        petition have all been included in concurrent list and the

        Union of India as well as the State both are, therefore,

        empowered to make any law concerning these matters.

        Section 17 of the Hindu Marriage Act introduces the

        principles of monogamy. It is noteworthy that Art.44 of

        the Constitution provides that the State shall endeavour

        to secure for the citizens a uniform Civil Code. Christian,

        Parsis, Jews and Nayers happened to be already

        monogamous. If a similar provision for monogamy has

        been made for Hindus also, legislation is to be deemed

        for the benefit of class of persons to whom the Hindu

        Marriage Act is applicable and the argument that it is in

        fact directed against that class, making a discrimination,

        cannot hold water."


       10. There may be cases where a Muslim male or

female can be prosecuted for offence under Section 494

IPC also. In a case where a Muslim male marries a

fifth wife, he can very well be prosecuted under Section

494 IPC since the 5th marriage will be void, personal law

being having permitted only four wives to be taken

together.             Similarly a Muslim female contracting          a

second marriage             can be proceeded with for offence

under Section 494 IPC. Thus submission of the learned


counsel for the petitioner that offence under Section

494             IPC       is     discriminatory   between

Hindu/Muslim/Christian is not acceptable. The sina qua

non for giving rise to an offence under Section 494 is

whether the second marriage performed by a husband

or wife when the spouse is living is void or not. In this

context judgment of the Apex Court in Dr.Srajmani

Stella Kujur v. Durga Charan Hansdah and

Another ([2001] 3 SCC 13) is relevant to be mentioned.

In the above case wife had filed a complaint that her

marriage was performed at Delhi in accordance with

the       Hindu rites and customs          and the husband

solemnized another marriage with accused No.2.

Parties belonged to Scheduled Tribe. The Apex Court

held that in the absence of specific pleadings, evidence

and proof of           alleged custom    making the second

marriage void, no offence under Section 494 IPC can

possibly be made out against the respondent.        It was


held by the Apex Court that the fact of second marriage

being void is sin qua non for the applicability of Section

494 IPC. The following was laid down in paragraph 14:

                  "14. Nowhere in the complaint the appellant has

       referred to any alleged custom having the force of law

       which prohibits the solemnisation of second marriage by

       the respondent and the consequences thereof. It may be

       emphasised that mere pleading of a custom stressing for

       monogamy by itself was not sufficient unless it was

       further pleaded that second marriage was void by reason

       of its taking place during the life of such husband or wife.

       In order to prove the second marriage being void, the

       appellant was under an obligation to show the existence

       of a custom which made such marriage null, ineffectual,

       having no force of law or binding effect, incapable of

       being enforced in law or non est. The fact of second

       marriage being void is a sine qua non for the applicability

       of S.494 IPC. It is settled position of law that for fastening

       the criminal liability, the prosecution or the complainant is

       obliged to prove the (SIC) appellant herself appears to be

       not clear in her stand inasmuch as in her statement in the

       court recorded on 24th October, 1992 she has stated that

       "I am a Hindu by religion". The complaint was dismissed

       by the Trial Court holding, "there is no mention of any

       such custom in the complaint nor there is evidence of

       such custom. In the absence of pleadings and evidence

       reference to Book alone is not sufficient", the High Court


       vide the judgment impugned in this appeal held that in

       the absence of notification in terms of sub-section (2) of

       S.2 of the Act no case for prosecution for the offence of

       bigamy was made out against the respondent because the

       alleged second marriage cannot be termed to be void

       either under the Act or any alleged custom having the

       force of law."


       11. To the same effect there is another judgment

of the Supreme Court in Lilly Thomas v. Union of

India (2000[6] SCC 224) wherein the following was

observed in paragraph 23:

                  "23. We have already seen above that under the

       Hindu Marriage Act, one of the essential ingredients of a

       valid Hindu marriage is that neither party should have a

       spouse living at the time of marriage. If the marriage

       takes place in spite of the fact that a party to that

       marriage had a spouse living, such marriage would be

       void under S.11 of the Hindu Marriage Act. Such a

       marriage is also described as void under S.17 of the

       Hindu Marriage Act under which an offence of bigamy has

       been created. This offence has been created by

       reference. By providing in S.17 that provisions of S.494

       and 495 would be applicable to such a marriage, the

       legislature has bodily lifted the provisions of S.494 and

       495 IPC and placed them in S.17 of the Hindu Marriage

       Act. This is a well known legislative device. The important


       words used in S.494 are "MARRIES IN ANY CASE IN

       WHICH SUCH MARRIAGE IS VOID BY REASON OF ITS

       TAKING PLACE DURING THE LIFE OF SUCH HUSBAND OR

       WIFE". These words indicate that before an offence under

       S.494 can be said to have been constituted, the second

       marriage should be shown to be void in a case where

       such a marriage would be void by reason of its taking

       place in the lifetime of such husband or wife. The words

       "husband or wife" are also important in the sense that

       they indicate the personal law applicable to them which

       would continue to be applicable to them so long as the

       marriage subsists and they remain "husband and wife"."


       12. One of the prayers made in the Writ Petition is

a direction to the 7th respondent to register case under

Section 494 Code of Criminal Procedure against 8th

respondent.           Section 198(1) of the Code of Criminal

Procedure provides as follows:

                 "198. Prosecution    for  offences    against

        marriage.- (1) No Court shall take cognizance of an

        offence punishable under Chapter XX of the Indian Penal

        Code (45 of 1860) except upon a complaint made by

        some person aggrieved by the offence:

                 provided that-

                 (a)   where such person is under the age of
        eighteen years, or is an idiot or a lunatic, or is from
        sickness or infirmity unable to make a complaint, or is a
        woman who, according to the local customs and


        manners, ought not to be compelled to appear in public,
        some other person may, with the leave of the         Court
        make a complaint on his her behalf;
                 (b)   where such person is the husband and he is
        serving in any of the Armed Forces of the Union under
        conditions which are certified by his Commanding Officer
        as precluding him from obtaining leave of absence to
        enable him to make a complaint in person, some other
        person authorised by the husband in accordance with the
        provisions of sub-section (4) may make a complaint on
        his behalf;
                 (c)   where the person aggrieved by an offence
        punishable under section 494 or 495 of the Indian Penal
        Code (45 of 1860) is the wife, complaint may be made
        on her behalf by her father, mother, brother, sister, son
        or daughter or by her father's or mother's brother or
        sister or, with the leave of the Court, by an other person
        related to her by blood, marriage or adoption."


The above prayer of the petitioner thus cannot be

entertained in view of the specific bar as stated in

Section 198(1) of the Code.

       13. In view of the forgoing discussion we are of the

view that Section 494 does not discriminate                    between

an offender belonging to Hindu/Muslim/Christian male

or female belonging to any cast or creed and can be

proceeded with under Section 494 of the Indian Penal

Code provided ingredients of Section 494 are made out.

We thus are of the view that the petitioner is not


entitled to any of the reliefs as prayed for in the Writ

Petition.

       Writ Petition is dismissed.



                              ASHOK BHUSHAN, Ag. C.J.




                                 A.M. SHAFFIQUE, JUDGE.




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