Synopsis-

1. Introduction
2. Bigamy under IPC
   • Definition u/r S. 494 and ingredients
   • Conversion
   • Punishment u/r S.494
   • Nature of offence
   • Case Laws
3. Adultery under IPC
   • Definition and ingredients
   • Punishment
   • Adultery no longer an offence in India
4. Difference between adultery and bigamy
5. Conclusion

 

1. Introduction

The concept of single marriage is known and monogamy and it is followed by most of the systems in the world. However, there are some exceptions to it as well that exist. In India, Hindus, Christians, Parsis and Muslim women are supposed to follow the concept of monogamy under their personal laws.

Marrying another person while being married to someone is known as ‘Bigamy’ and has been declared an offence under criminal laws in India.

On the other hand, adultery is an offence committed by a man against another man which involves having sexual intercourse with his wife without his consent. In Indian laws, this offence can be committed only by a man and the woman involved in the act is not made liable for it in any manner.

 

2. Bigamy under Indian Penal Code, 1860

Though the term Bigamy has not been used in Indian Penal Code (hereinafter ‘IPC’ or ‘the Code’) but the provision for criminalizing this act as an offence has been made u/s S. 494 of the Code.

 

2.1 Definition u/r S. 494 and ingredients:

This section states that anyone ‘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’, commits the offence of Bigamy.

So, there are basically following ingredients that constitute this offence:

1. Being earlier married to someone

 

• The provision of this section is applicable only when the accused marries again during the subsistence of his first marriage.

 

• So, it is necessary that the accused must have been married to someone in the first place.

 

• If the early marriage has been dissolved either by divorce or death of the spouse, this section will not be applicable.

 

• If the Muslim woman remarries during her iddat she commits offence of bigamy.

 

• If the Muslim woman has the option of puberty and contracts a marriage thereby repudiating her first marriage, she does not commit bigamy.

 

• If in Muslim marriage there was a contract between the spouses under which the woman can divorce herself on happening of any of the conditions mentioned in the contract, then happening of such condition operates as valid divorce and the woman can remarry without attracting provision of this section.

 

• Basically, mens rea is an important element to constitute this offence.

 

1. The marriage should have been valid

 

• The first marriage of the accused should have been a valid marriage performed under any of the personal laws or is covered under the Special Marriage Act 1954.

 

• If the first marriage is void then the provision of this section is not attracted. This is an exception provided by this section.

 

• If the First marriage was voidable and the decree of nullity has not been passed by competent court but still the accused remarries, then this Section will apply.

 

• If the first marriage was neither void nor voidable but simply irregular and the spouse marries someone else, it will be punishable under this section.

 

1. The spouse is still alive

 

• Death of the spouse dissolves the marriage and if the marriage has been dissolved, the provision of this section is not applicable.

 

• So, it is a requirement that while contracting the second marriage, the spouse from first marriage of the accused should have been living.

 

• Provided that the first marriage had not been dissolved in any other way like divorce or because of no whereabouts of the spouse for 7 years or more etc.

 

• One of the exceptions to the section provides that if the spouse has been absent and his whereabouts are not known and it cannot be found out by sufficient means that he/she is alive for a period of 7 years, then the person can remarry and it will not constitute this offence provided that the second spouse is aware of all the facts.

 

1. The accused marries again

 

• It is necessary that the second marriage contracted by the accused should have been performed through the rituals under any personal law and recognized by law.

 

• It is not necessary that the second marriage should be valid but it should have been contracted like a valid marriage under the provision of any law.

 

• If this requirement of second marriage is not fulfilled, then it would constitute adultery and not bigamy.

 

1. The second marriage is not valid under any personal law

 

• The second marriage should not be declared as valid under any of the personal laws.

 

• For example, a Muslim man can contract up to 4 marriages under their personal laws. In that case the second marriage is valid and so does not constitute this offence.

 

• So, the provision of this section is applicable to both male and female who are Hindu, Christian and Parsi and to the female only who is a Muslim.

 

• This section is not applicable on a man who is a Muslim.

 

2.2 Conversion

• If a Hindu converts into any other religion, he is not absolved from his obligations of marital bond from his previous marriage as a Hindu. So, he will be considered a Hindu at the time of contracting second marriage post apostasy and provisions of this section will apply.

 

• Renunciation of Islam does not dissolve the marriage and so Muslim woman needs to get decree of dissolution from court in order to remarry without attracting provisions of this section.

 

• So, basically conversion into another religion does not give a ground to remarry without attracting provisions of this section and will still be dealt under personal laws of religion one belonged to while contracting the marriage.

2.3 Punishment under S.494

If someone commits an offence of bigamy, he/she shall be punished under S.494 of the Code by-

• Imprisonment of either description
• Up to 7 years
• And fine

 

2.4 Nature of Punishment

Bigamy is bailable, non-cognizable and compoundable with the permission of the court.

 

2.5 Case Laws-

 

i) Indu Bhagya Natekar v. Bhagya Pandurang Natekar

 

• One Indu Natekar has lawfully married Bhagya Pandurang Natekar.

 

• The husband contracted another marriage with Manjula Narayan Kadam.

 

• Evidences were produced to prove the first marriage.

 

• Presumption was raised that marriage was performed by all rituals and ceremonies and hence it was valid marriage.

 

• Held it is not always necessary to prove the second marriage beyond all doubts and that it is sufficient even if there is other reliable evidence to establish the charge.

 

ii) Kanwal Ram v. HP Administration

 

• Supreme Court held that essential ceremonies of second marriage must be proved.

 

• Even if the accused confesses the offence the second marriage will have to be proved.

 

• Otherwise it will be considered as mere adulterous act and not bigamy.

 

iii) Sarla Mudgal v. Union of India

 

• It was held that a Hindu who has converted into Islam and marries to Muslim women without giving divorce to his previous wife is liable for the offence of Bigamy.

3. Adultery under Indian Penal Code, 1860-

IPC under S. 497 criminalizes the offence of adultery.

 

3.1 Definition and ingredients of Adultery-

1. 497 states that any man who has sexual intercourse with wife of another man without the consent or connivance of that man commits the offence of adultery if it does not amount to rape.

So, this drops down to the following ingredients:

1. Sexual intercourse with the wife of another man

 

• It is necessary that the woman involved in the act was already married to the other man.

 

• The marriage of the woman must have been a valid marriage performed under any law.

 

• The man involved in the act must know and sufficiently believe in the fact that the woman is already married to another man.

 

• It is not necessary for the man to know whose wife she is. It is sufficient for him to know that she is the wife of some other man.

 

1. Without the consent or connivance of that other man

 

• The other man to whom the woman was married should not have given permission for the act.

 

• Connivance means wilful consent and thereby giving culpable acquiescence during the course of act which would lead to the commission of the offence.

 

• So, basically, this involves knowledge and acquiescence of the man.

 

 

1. It should not amount to rape

 

• The sexual intercourse for the purpose of this section should not amount to the offence of rape under section 375 of this Code.

 

1. Only man is liable

 

• This code punishes only the male offender for the act and woman is not held responsible even for abetment.

 

• The idea behind punishing the man only is that this is an offence where wrong has been done by a man against another man with respect to his wife.

 

3.2 Punishment for Adultery-

1. 497 further provides for punishment as follows:

• Imprisonment of either description
• Up to 7 years
• Or with fine
• Or with both

 

3.3 Adultery no longer an offence in India-

The Supreme Court of India has struck down adultery as an offence in Indian. There are a series of judgement that led down to this decision in 2018. The relevant cases are as follows:

i) Yusuf Aziz v. State of Bombay

• The main accused Yusuf Aziz contended that this offence violates Article 14 and 15 of the Constitution.

 

• He argued that it creates discrimination between man and woman on the basis of sex.

 

• Held the discrimination was protected by Article 15(3) and so not unconstitutional.

 

ii) Sowmithri Vishnu v. Union of India

 

• The Hon’ble Supreme Court held that women need not be included as an aggrieved party just for the sake of making the law even handed.

 

• It was further opined that people shall not be allowed to prosecute their spouse for the offence of adultery so as to protect the sanctity of their marriage.

 

• Hence, the judgment continued to state the offence of adultery as an offence committed by a man against another man.

 

iii)  Joseph Shine v. Union of India

 

• It was held by Hon’ble Supreme Court that S. 497 denies substantive equality, as it perpetuates the subordinate status ascribed to women in marriage and society.

 

• Thereby, S. 497 violates Article 14 of the Constitution.

 

• It was clarified that there cannot be a patriarchal monarchy and for that matter, husband’s monarchy over the wife.

 

• 497 was held to be a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Art. 21 of the Constitution.

 

• 198 CrPC is also a discriminatory provision in sense that the husband alone or somebody on his behalf can file a complaint against another man for this offence.

 

• Supreme Court further stated that In light of various constitutional guarantees provided in Art. 14, 15 and 21, S. 497 of IPC cannot stand in its current form and hence stands abolished due to the reasons discussed above.

 

4.Difference between Adultery and Bigamy:

Bigamy	Adultery
1.      Can be committed by either man or woman	1.      Only man can be made liable for this offence.
2.      There should be a second marriage performed.	2.      Second marriage need not be performed.
3.      Bigamy is an offence against the institution of marriage.	3.      Adultery is the offence by a man against another man relating to his wife.

 

5. Conclusion-

Bigamy is an offence which criminalizes the act of performing second marriage while being married to someone else. Adultery, on the other hand merely punishes a man for having sexual intercourse with someone else’s wife without his consent. The law relating to adultery has faced several criticisms in recent times because of which the Hon’ble SC has struck down this law in 2018 stating it to be unconstitutional.