Supreme Court: Family Court's Finding Regarding Previous Marriage Can Be Relied On To Quash Complaint About Bigamy U/S 494/495 IPC

 Evidence was adduced before the Family Court. The second respondent deposed before the Family Court. The Principal Judge of the Family Court at Guwahati, by a judgment dated 20 July 2017, issued a declaration that the divorce which was purportedly granted by the second respondent to her is null and void. The conclusion which has been arrived at by the Principal Judge is extracted below:
“In view of the above discussions it is clear that the talaq pronounced by the respondent No.1 is not as per due procedure, as no reconciliation took place between the parties and as such the talaq is not valid one. It is also found that the respondent has failed to prove that the petitioner was already married to Shoukat Ali, s/o Raja Ali @ Bhaiya Ali when getting married to the respondent.”{Para 12}

13. The above judgment clearly shows that whether (i) the appellant had a prior subsisting marriage with another person; and (ii) the second respondent had obtained a valid divorce was in issue before the Family Court. The finding of fact as between the appellant and the second respondent is that the appellant did not have a subsisting prior marriage when she married him. The judgment of the Family Court was questioned in MAT Appeal No 47 of 2017. A Division Bench of the High Court dismissed the appeal for non-prosecution on 20 June 2019, having noted that on the previous occasion on 27 May 2019, no one had appeared on behalf of the second respondent in those proceedings. The order of the High Court continues to hold the field. Yet, the impugned judgement has held that the factum of the subsisting marriage of the appellant is a contentious matter and has declined to quash the criminal complaint against the appellant.

15. The precedent of this Court clarifies that in certain circumstances, the High Court is entitled to consider other materials before exercising its powers of quashing under Section 482 of the CrPC. In the present case the appellant and the second respondent were parties to the decision of the Family Court. No contentious material or disputed issues of evidence arise. In the above backdrop, allowing the criminal proceeding to proceed for an offence under Sections 494 and 495 of IPC would constitute an abuse of the process. As between the appellant and the second respondent the issue as to whether she had a subsisting marriage on the date on which she entered into a marriage with the second respondent is the subject matter of a conclusive finding of the Principal Judge of the Family Court which has attained finality. Explanation (b) to Section 7(1) of the Family Courts Act 1984 expressly confers the Family Court with jurisdiction to determine the matrimonial status of a person. Section 7(1) of the Family Courts Act 1984 grants a Family Court with the status of a District Court and Section 7(2) confers it with jurisdiction exercisable by a Magistrate of the first class under Chapter IX of the CrPC, thus enabling to collect evidence to make such a determination. Thus, relying on the judgement of the Family Court which has jurisdiction to decide the gravamen of the offence alleged in the criminal complaint, would not be same as relying on evidentiary materials that are due for appreciation by the Trial Court, such as the investigation report before it is forwarded to the Magistrate, (Pratibha v. Rameshwari Devi, (2007) 12 SCC 369, paras 17-21; State of Madhya Pradesh v. Awadh Kishore Gupta, (2004) 1 SCC 691, para 13). 
Therefore, in this case, the Single Judge of the High Court was not justified in coming to the conclusion that the issue as to whether the appellant had a subsisting prior marriage was a ‘highly contentious matter’ which has to be tried on the basis of the evidence on the record.

16. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the Gauhati High Court dated 4 April 2018. Criminal Petition No 179 of 2016 instituted by the appellant for quashing the complaint is allowed. The complaint, CR Case No 2512 of 2015, pending in the Court of SDJM(S) II, Kamrup (M), Guwahati is quashed.

Supreme Court

JUSTICE Dr. Dhananjaya Y Chandrachud JUSTICE Bela M Trivedi

Musstt Rehana Begum Vs. State of Assam & Anr.

Criminal Appeal No 118 of 2022

21st January 2022

Citation: 2022 ALL SCR (ONLINE) 97

Author: Dr. Dhananjaya Y Chandrachud, J.

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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 it can be presumed that Muslim man had no wife other than whose name is mentioned in service book?

 The substantial question of law that arises for

consideration in this Regular Second Appeal is, whether a

legal or reasonable presumption can be drawn to the effect

that a Muhammedan Government Servant had no wife

other than the wife whose name is shown in the Service

Book maintained under Rule 93 of the Government

Servants Conduct Rules, 1960.

      8. Coming to Rule 93 of the Government Servants

Conduct Rules, it is apposite to extract the same for a

proper understanding and better appreciation.            Rule 93

reads as follows:

           "Bigamous Marriages.--(i) No Government servant

           who has a wife living shall contract another

           marriage without first obtaining the permission of

           the  Government,     notwithstanding   that   such

           subsequent marriage is permissible under the

           personal law for the time being applicable to him."

The conduct of a Government servant is governed by the

Government      Servant      Conduct    Rules.   The     statutory

mandate under Rule 93 is that the Government servant,


who has a wife living, shall not contract another wife

without first obtaining the permission of the Government,

though      his personal    law   permits  him   subsequent

marriages.      It is true that the Conduct Rules are issued

under Article 309 of the Constitution of India and therefore

they have the same force as that of a statute, and any

infraction would amount to violation of law. But, in view of

Rule 93, it can never be presumed that a Muhammedan

Government Servant has no wife other than the wife whose

name is shown in the service book or pension book,

particularly when his personal law permits him to marry

more than one wife, upto four. Such a presumption is far

fetched and stretched and it goes beyond the intention of

the said Rule.

      9.     Coming to the instant case, it is true that

Aboobackerkutty had not obtained permission to marry the

first defendant under Rule 93 of the said Rules. Certainly,

the said disobedience or violation of that Rule would

warrant disciplinary action against him for misconduct


under the Rule. But, it cannot be presumed that he has no

wife other than the first defendant in view of Rule 93,

particularly when his personal law permits him to marry

and maintain more than one wife, upto four. Therefore,

this Court is not inclined to countenance the arguments

advanced by the the learned counsel for the appellant on

the basis of Rule 93 and it stands rejected.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

           MR.JUSTICE K.HARILAL

  11TH DAY OF JANUARY 2017
                  RSA.No. 1187 of 2015 (G)
                 

  UMMAYUMMA, Vs  KIZHAKKINIYAKATH THITHACHUTTY UMMA, 

                     

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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 second wife in bigamous marriage can claim pension in case of death of her husband?

 It was argued by the learned counsel for the respondent that a
second wife was deceived by deceased husband and she begotten a
daughter from the deceased and therefore, it is necessary for the
Court to take a gender protectionist view and grant her pension. This
argument of the learned counsel for the respondent is one sided and
may appear convincing superficially, but it does not stand to reason
after close scrutiny.   The Courts have empathy for a woman who is
deceived by a man, however, she may take recourse under the other
enactments for redressal.  So far as husband is a Government servant

and matter is covered under the rules, then the Curt cannot take
other view than permissible in law. The Division Bench in the case of
Chanda Hinglas Bharati has made a reference to similar argument
and has rightly observed that “showing sympathy to a woman like the
petitioner would result in depriving a legitimate wife of her right to
receive full family pension.  This is the gender positive view towards
the legally wedded wife.  The case of second wife may be unfortunate
but I am of the view that Court cannot pass verdict in her favour.
While doing justice, injustice should not be caused to a person having
a rightful claim. 
 Thus, I fully rely on the ratio laid down in the case of Chanda
Hinglas Bharati and hold that marriage contracted with second lady
in subsistence of first marriage or spouse is living, then second lady
from   the   Hindu/Christians   cannot   claim   as   a   widow   entitled   to
pension   subject   to   personal   law   or   as   stated   in   Rule   26   of
Maharashtra Civil Services (Conduct) Rules.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015
WITH
CIVIL APPLICATION NO.1770 OF 2015
Draupada @ Draupadi Jaydeo Pawar
and Others ...  Appellants
vs.
Indubai d/o. Kashinath Shivram Chavan
and Another ...  Respondents

CORAM : MRS.MRIDULA BHATKAR, J.

 PRONOUNCED ON  : 10th FEBRUARY, 2016

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Whether performing second marriage during existence of first marriage without permission of govt amounts to misconduct by public servant?

 Rule 21 of the Central Civil Services (Conduct)
Rules, 1964 restrains any government servant
having a living spouse from entering into or
contracting a marriage with any person. A similar
provision is to be found in several service rules
framed by the States governing the conduct of
their civil servants. No decided case of this Court

has been brought to our notice wherein the
constitutional validity of such provisions may have
been put in issue on the ground of violating the
freedom of religion under Article 25 or the freedom
of personal life and liberty under Article 21. Such a
challenge was never laid before this Court
apparently because of its futility.

60.. ……….It may be permissible for Muslims to
enter into four marriages with four women and for
anyone whether a Muslim or belonging to any other
community or religion to procreate as many
children as he likes but no religion in India dictates
or mandates as an obligation to enter into bigamy
or polygamy or to have children more than one.
What is permitted or not prohibited by a religion
does not become a religious practice or a positive
tenet of a religion. A practice does not acquire the
sanction of religion simply because it is permitted.
Assuming the practice of having more wives than
one or procreating more children than one is a
practice followed by any community or group of
people, the same can be regulated or prohibited by
legislation in the interest of public order, morality
and health or by any law providing for social
welfare and reform which the impugned legislation
clearly does.”
In view of the above, we are unable to hold that the Conduct

Rule in any manner violates Article 25 of the Constitution.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1662 OF 2015
(ARISING OUT OF SLP (C) NO.5097 OF 2012)
KHURSHEED AHMAD KHAN 
V
STATE OF U.P. & ORS. 
Citation;(2015) 8 SCC439

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What is distinction between proof of marriage and validity of marriage?

I am unable to agree with the contention of learned counsel for the appellants. There is a distinction between proof of marriage and validity of marriage. The proof of marriage can be achieved, by direct evidence of the marriage ceremony or registration of marriage or by circumstantial evidence, one of the circumstances being long cohabitation and living together. But, a marriage which is questioned on the ground of being subsequent to and during the subsistence of an earlier marriage, could not, by any stretch of argument or imagination, be sanctified or validated by any length of cohabitation or living together. After the advent of Tamil Nadu Hindu (Bigamy Prevention and Divorce Act, 1949 and Hindu Marriage Act, 1955, the second marriage during the subsistence of the first marriage is totally void, illegal and opposed to public policy. No amount of pleading or proof of custom or consent by wife can validate such a marriage.

Madras High Court

Chinnammal And 8 Others vs Elumalai And 4 Others on 14 January, 2000

Equivalent citations: 2000 (2) CTC 214, II (2000) DMC 278

Bench: K Sivasubramaniam

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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

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Whether hindu husband performing second marriage after embracing Islam will attract offence of Bigamy?

We also agree with the law laid down by Chagla, J. in Robasa Khanum V. Khodadad Irani case wherein the learned Judge has held that the conduct of a spouse who converts to islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the Muslims Personal Law". In such cases the court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494 IPC. -

Bombay High Court

Robasa Khanum vs Khodadad Bomanji Irani on 22 August, 1946

Equivalent citations: (1946) 48 BOMLR 864, AIR1947Bom272, 

Author: K Leonard Stone

Bench: L Stone, Kt., Chagla

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Whether married man performing second marriage by suppressing first marriage is liable for prosecution?

 Section 495 IPC provides that if a person committing the offence defined in Section 494 IPC conceals from the person with whom subsequent marriage is contracted, the fact of the former marriage, the said person is liable to punished as provided therein. The offence mentioned in Section 495 IPC is an aggravated form of bigamy provided in Section 494 IPC. The circumstance of aggravation is the concealment of the fact of the former marriage to the person with whom the second marriage is contracted. Since the offence under Section 495 IPC is in essence bigamy, it follows that all the elements necessary to constitute that offence must be present here also. A married man who by passing himself off as unmarried induces an innocent woman to become, as she thinks his wife, but in reality his mistress, commits one of the grossest forms of frauds known to law 

and therefore severe punishment is provided in Section 495 IPC. Section 495 begins with the words "whoever commits the offence defined in the last preceding Section........" The reference to Section 494 IPC in Section 495 IPC makes it clear that Section 495 IPC is extension of Section 494 IPC and part and parcel of it. The concealment spoken of in Section 495 IPC would be from the woman with whom the subsequent marriage is performed. Therefore, the wife with whom the subsequent marriage is contracted after concealment of former marriage, would also be entitled to lodge complaint for commission of offence punishable under Section 495 IPC. Where second wife alleges that the accused husband had married her according to Hindu rites despite the fact that he was already married to another lady and the factum of the first marriage was concealed from her, the second wife would be an aggrieved person within the meaning of Section 198 Cr. P.C. If the woman with whom the second marriage is performed by concealment of former marriage is entitled to file a complaint for commission of offence under Section 495 IPC, there is no reason why she

would not be entitled to file complaint under Section 494 IPC more particularly when Section 495 IPC is extension and part and parcel of Section 494 IPC.

For all these reasons, it is held that the woman with whom second marriage is contracted by suppressing the fact of former marriage would be entitled to maintain complaint against her husband under Sections 494 and 495 IPC.

Supreme Court of India

A.Subash Babu vs State Of A.P.& Anr on 21 July, 2011

Bench: J.M. Panchal, H.L. Gokhale

Reportable

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A victim of bigamous marriage is entitled to maintenance, rules Supreme Court

Is a victim of bigamous marriage entitled to maintenance? The Supreme Court has answered the question in the affirmative by holding that if a man deceitfully marries a woman hiding the subsistence of earlier marriage, he is obliged to pay maintenance to her under Section 125 of Code of Criminal Procedure (Cr. PC).

In the matter of Badshah Vs. Sou. Urmila Badshah Godse & another [Criminal Miscellaneous Petition No.19530/2013 in Special Leave Petition (CRL.) No.8596/2013], Justices Ranjana Desai and A.K. Sikri were dealing with a case where the marriage between the parties has been proved. However, the husband was already married, and he duped the victim by suppressing the factum of alleged first marriage. On these facts, the Bench opined that he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong.

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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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Whether court can direct police to register offence of bigamy punishable U/S 494 of CPC?

 In so far as present case is concerned, it is not in dispute that Section 494 of I.P.C. is a non-cognizable offence and, therefore, in view of bar under Section 198(1) of Cr.P.C., the court could not take cognizance unless a complaint is made by the person aggrieved by the offence. In case of an offence punishable under Section 494 of I.P.C., the aggrieved person would be wife or a complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or any relative or person mentioned in Sub-Clause "c" of Sub-Section 1 of Section 198 of the Cr.P.C. It is thus clear that even after the investigation if a Police report is submitted, the learned Magistrate would not be in a position to take cognizance on the basis of the said report since cognizance could not be taken on a complaint made by anyone else other than the person aggrieved by the offence. In that view of the matter, the Criminal Application deserves to be allowed.

Bombay High Court

Sow. Swati Sachin Mahajan ... vs The State Of Maharashtra on 4 May, 2007

Equivalent citations: I (2008) DMC 79

B.R. Gavai, J.

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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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Whether complaint for offence of bigamy u/s 494 of IPC can be filed by second wife?

This Court finds that the High Court has quashed the proceedings pending before the learned Magistrate under Section 498A of IPC on the spacious ground that the marriage of the appellant with the respondent no. 2 is void and as respondent no. 2 is not the wife, she was not entitled to lodge first information report with the police for commission of offence u/s. 498A IPC and on the basis of police report, cognizance of the said offence against the appellant could not have been taken by the learned Magistrate. Such reasoning is quite contrary to the law declared by this Court in Reema Aggarwal Vs. Anupam and others (2004) 3 SCC 199. After examining the scope of Section 498A of the Indian Penal Code and holding that a person who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen of contention that since there was no valid marriage the question of dowry does not arise, this Court speaking through Hon'ble Mr. Justice Arijit Pasayat, has held as under:-

Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting

legalistic approach would encourage harassment to a woman over demand of

money. The nomenclature dowry does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations

who are covered by Section 498A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children

of void and voidable marriages. Can it be said that the legislature which was conscious

of the social stigma attached to children of void and voidable marriages closed its eyes to

the plight of a woman who unknowingly or unconscious of the legal consequences

entered into the marital relationship? If such

restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding

harassment to a woman over demand of

money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to any person whose marriage with such husband or wife has been

declared void by a court of competent jurisdiction". It would be appropriate to construe the expression husband to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the

woman concerned to cruelty or coerces her in

any manner or for any of the purposes 

enumerated in the relevant provisions-

Sections 304B/498A, whatever be the

legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The

absence of a definition of "husband" to specifically include such persons who

contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as husband is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions."

17. In view of firm and clear law laid down on the subject, this Court is of the confirmed view that the High Court was not justified at all in quashing the proceedings initiated against the appellant under Section 498A of the Code on the ground that the respondent no. 2 was not wife within the meaning of Section 498A of the IPC and was not entitled to maintain complaint under the said provision. 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1428 OF 2011

(Arising out of S.L.P. (Crl.) No. 6349 of 2010)

A.Subash Babu vs State Of A.P.& Anr on 21 July, 2011

Bench: J.M. Panchal, H.L. Gokhale

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