Whether accused can be convicted for bigamy if he has admitted performance of second marriage?

As far as conviction and sentenced of the appellant

under Section­ 494 of the Indian Penal Code is concerned,
there is no evidence on record to establish the fact that, the
second   marriage   of   appellant   with   Mrs.   Shyamal   was
solemnized that means he   celebrated the marriage with
proper ceremonies and in due form. The Supreme Court in
the case of  Baburao Shankar Lokhande and another vs. The
State of Maharashtra and another reported in AIR 1965 S.C.
1564  has   held   that,   for     application   of   Section   494,
marriage   must   come     within   'solemnized   marriage'.
'Solemnize' means   to celebrate the marriage with proper
ceremonies and in due form.  Mere going through  certain
ceremonies  with intention to marriage  will not make the
ceremonies  prescribed by law or approved by customs. It is
further held that, it is essential for the purpose of Section
17 of the Hindu Marriage Act,   the marriage   applies on
account   of   the     Act,   should   have   been   celebrated   with
proper ceremonies and in due form. It is further held that
merely going through certain ceremonies with the intention
that the parties be taken to be married will not make the

ceremonies   prescribed   by   law   or   approved   by   any
established   custom.       In   the   present   case   to   prove   the
second marriage of the appellant the prosecution has relied
upon the admissions given by the Mr. Pandit Kamble (P.W.1)
father   of   the   deceased   Shyamal   and   Smt.   Ujwala
Suryawanshi (D.W.2) sister of the appellant. The Supreme
Court  in  the  case  of  Kanwal  Ram   and  others  vs.     The
Himachal Pradesh Administration  reported in  1966 SC 614
while relying on the ratio laid down by the Supreme Court
in the case of Bhaurao Shankar Lokhande (supra)   has
further held that, in a bigamy case, the second marriage as
a fact, that is to say, the essential ceremonies constituting
it, must be proved. Admission of marriage by the accused is
not evidence of it for the purpose of proving marriage in an
adultery or bigamy case. As noted herein above, there is no
evidence on record to establish the fact beyond reasonable
doubt that the appellant in fact had solemnized marriage
with Mrs. Shyamal on 1.4.2012, the view expressed by the
Supreme Court in the case of   Baburao Shankar Lokhande

(supra) is followed by it in the case of Kanwal Ram (supra),
in Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh reported
in   1971  (1) SCC 864 and in  Laxmi Devi  (Smt.) Satya
Narayan and ors. reported in (1994) 5 SCC 545.
9. There is no evidence on record to establish that, the
appellant   performed     second   marriage     by   following
necessary and essential ceremonies as per the mandate of
law. It is therefore, clear from the evidence on record that
the marriage between the appellant and the deceased Mrs.
Shyamal was not established beyond reasonable doubt by
the prosecution and consequently does not come within the
purview   of   Section   494   of   the   Indian   Penal   Code   even
though the first wife of the appellant Mrs. Sangeeta was
alive  when he married with Mrs. Shyamal in April, 2012.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL  APPELLATE JURISDICTION
         CRIMINAL APPEAL NO.672 OF 2016
WITH
               CRIMINAL APPLICATION NO.197 OF 2018

Vidyasagar  Irappa Mane, Vs The State of Maharashtra,

                                     CORAM: A.S.GADKARI, J. 
 DATE :13TH APRIL, 2018.

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Whether complaint for offence of bigamy can be filed by second wife?

Having noticed the agony, trauma etc. which would be suffered by the woman with whom second marriage is performed, if the marriage is declared to be void, let us make an attempt to ascertain the purpose of enacting Section 494 IPC. This Section introduces monogamy which is essentially voluntary union of life of one man with one woman to the exclusion of all others. It enacts that neither party must have a spouse living at the time of marriage. Polygamy was practiced in many sections of Hindu society in ancient times. It is not a matter of long past that in India, hyper gamy brought forth wholesale polygamy and along with it misery, plight and ignominy to woman having no parallel in the world. In post vedic India a King could take and generally used to have more than one wife. Section 4, of Hindu Marriage Act nullifies and supersedes such practice all over India among the Hindus. Section 494 is intended to achieve laudable object of monogamy. This object can be achieved only by expanding the meaning of the phrase "aggrieved person". For variety of reasons the first wife may not choose to file complaint against her husband e.g. when she is assured of re-union by her husband, when husband assures to snap the tie of second marriage etc. Non-filing of the complaint under Section 494 IPC by first wife does not mean that the offence is wiped out and monogamy sought to be achieved by means of Section 494 IPC merely remains in statute book. Having regard to the scope, purpose, context and object of enacting Section 494 IPC and also the prevailing practices in the society sought to be curbed by Section 494 IPC, there is no manner of doubt that the complainant should be an aggrieved person. Section 198(1) (c) of the Criminal Procedure Code, amongst other things, provides that where the person aggrieved by an offence under Section 494 or Section 495 IPC is the wife, complaint on her behalf may also be filed by her father, mother, sister, son, daughter etc. or with the leave of the Court, by any other person related to her by blood, marriage or adoption. In Gopal Lal v. State of Rajasthan MANU/SC/0109/1979 : (1979) 2 SCC 170 this Court has ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed. Though Section 11 of the Hindu Marriage Act provides that any marriage solemnized, if it contravenes the conditions specified in Clause (i) of Section 5 of the said Act, shall be null and void, it also provides that such marriage may on a petition presented by either party thereto, be so declared. Though the law specifically does not cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose of precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent Court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband.

Even otherwise, as explained earlier, she suffers several legal wrongs and/or legal injuries when second marriage is treated as a nullity by the husband arbitrarily, without recourse to the Court or where declaration sought is granted by a competent Court. The expression "aggrieved person" denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant. Section 494 does not restrict right of filing complaint to the first wife and there is no reason to read the said Section in a restricted manner as is suggested by the learned Counsel for the Appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by wife living and not by the woman with whom subsequent marriage takes place during the life time of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom second marriage takes place which is void by reason of its taking place during the life of first wife.

A bare reading of the complaint together with statutory provisions makes it abundantly clear that the Appellant having a wife living, married with the Respondent No. 2 herein by concealing from her the fact of former marriage and therefore her complaint against the Appellant for commission of offence punishable under Section 494 and 495 IPC is, maintainable and cannot be quashed on this ground.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1428 of 2011.

Decided On: 21.07.2011

 A. Subash Babu

Vs.

 State of A.P. and Anr.

Hon'ble Judges/Coram:

J.M. Panchal and H.L. Gokhale, JJ.

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Whether Hindu marriage will be valid even though ritual of "Saptapadi" is not carried out?

Under such circumstances, the provisions of Section 7, namely, the State Amendment inserted in the Statute are applicable and there was a valid marriage between the appellant and Kasturi. Moreover, neither complainant nor the appellant had any case that for a valid marriage among the members of the community to which they belong, this ceremony of "Saptapadi" was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi, i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

"Saptapadi" was held to be an essential ceremony for a valid marriage only in cases where it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had no such case that "Saptapadi" was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section 7 are applicable to the parties. In any view of the matter, there was a valid marriage on 18.6.1984 between the appellant and the second accused, Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6.9.1970.1

Supreme Court of India

S. Nagalingam vs Sivagami on 31 August, 2001

Equivalent citations: AIR 2001 SC 3576, 2001 (2) ALD Cri 634

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What are necessary conditions for proof of offence of bigamy?

For an offence under Section 494 both the marriages must be legal and valid. Unless these ingredients of Section 494 are satisfied, the accused cannot be punished for an offence of bigamy under the same. If the said section requires a strict proof of the validity of the second marriage, it is not understandable why such a strict proof is not required for the first marriage also. It would, therefore, follow that if for the proof of the second marriage, it is necessary for the complainant to prove all the essential requirements of a legal and valid marriage, then by the same standard and by the same reasoning it is necessary for him to prove as a fact all the essential requirements to show that the first marriage was also performed validly.

Bombay High Court

Godawari vs State Of Maharashtra And Others on 24 September, 1984

Bench: H Dhabe

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