Monday, May 27, 2024

𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹𝗗𝗿𝗲𝗮𝗺™

𝙰𝙵𝙵𝙾𝚁𝙳𝙰𝙱𝙻𝙴 & 𝙰𝙲𝙲𝙴𝚂𝚂𝙸𝙱𝙻𝙴

IPCMODEL ANSWER

BIGAMY

Explain in detail the offence of bigamy given under section 494 of Indian Penal Code, 1860.

In every society, marriage is considered as one of the most important institutions and it unites two different souls in a single relationship for ‘n’ number of years. It is generally said that the institution of marriage arises some rights and obligations and every party to a marriage gives his/her assent only on the belief that each party to the marriage will perform his/her matrimonial obligations. If any party to the marriage fails to perform his/her matrimonial obligations, then in such a case, another party can initiate legal proceedings against the wrongdoer.

Section 494 of the Indian Penal Code, 1860, deals with such kind of obligations and this section restraints a spouse to solemnize second marriage if his/her first marriage is still subsisting. This section prohibits the bigamy and promotes the concept of monogamy. According to this section, if any spouse whose first spouse is living solemnizes second marriage without dissolving the first marriage, then in such a case, that spouse will be held liable for having committed the offence of bigamy given under section 494 of the Indian Penal Code, 1860.

 

According to section 494 of the Indian Penal Code, 1860, if a person is held liable for having committed the offence of bigamy, then in such a case, he will be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. But a person can be held liable for having committed the offence of bigamy only if his/her first marriage is a valid marriage. If the marriage of that person has been declared void by a court of competent jurisdiction, then in such a case, he cannot be held liable for having committed the offence of bigamy.

Moreover, if a spouse of an accused remains absent continuously for a period of seven years and not heard to be alive by anyone and after the expiry of that period if an accused solemnizes second marriage even without dissolving the first marriage, then also, he cannot be held liable for having committed the offence of bigamy given under section 494 of the Indian Penal Code, 1860.

 

In the leading case of Nagalingam vs. Sivagami (SC 2001), the Hon’ble court stated that to held an accused liable for having committed the offence of bigamy given under section 494 of the Indian Penal Code, 1860, following essential ingredients must be established by the prosecution: –

  1. The accused must have contracted the first marriage
  2. Whilst the first marriage was subsisting, the accused must have contracted a second marriage
  3. Both the marriages must be valid

If all these ingredients are established by the prosecution, then only, it can secure the conviction of an accused.

 

According to the provisions of section 494 of the Indian Penal Code, 1860, to secure the conviction of an accused, it is necessary to prove that both the marriages contracted by the accused are valid. It means that not only first marriage but the second marriage must also be a valid marriage.

In the leading case of Bhaurao Shanker Lokhande vs. State of Maharashtra (SC 1965), the Hon’ble court held- “Prima facie, the expression ‘whoever…… marries’ must mean ‘whoever marries- validly’ or ‘whoever…… marries and whose marriage is a valid one’. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law and if there is no marriage, then in such a case, an accused cannot be held liable for having committed the offence of bigamy.

Section 7 of the Hindu Marriage Act, 1955, deals with the provisions of validity of a Hindu marriage. According to this section, a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

 

According to this section, if the parties want to solemnize a valid marriage, then they will have to perform certain essential ceremonies. If they do not perform these ceremonies, then in such a case, there marriage will not be considered as valid marriage. So, according to section 494 of Indian Penal Code, 1860, to secure the conviction of an accused, it is necessary to prove that both the marriages solemnized by the accused are valid and contracted by performing the essential ceremonies.

In the leading case of Priya Bala Ghosh vs. Suresh Chnadra Ghosh (SC 1971), the Hon’ble court held that ‘the admission cannot in law be treated as evidence of the second marriage having taken place in an adultery or bigamy case: and that in such cases it must be proved by the prosecution that the second marriage as a fact has taken place after the performance of the essential ceremonies.

 

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!