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BIGAMOUS MARIAGE IS A VOID MARRIAGE

BIGAMOUS MARRIAGE IS VOID


Non-doctrinal Research

Submitted to

Tamil Nadu National Law School, Trichy

In partial fulfillment of the requirement for the award of

Degree of

B.com. LL.B (Hons)

By

H.Mohamed Abdul Raaziq

(REG.NO. BC0150015)

UNDER THE GUIDENCE AND SUPERVISION OF


Ms. Pranusha Kulkarni

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

DECLARATION

I do hereby declare that the project entitled BIGAMOUS MARRIAGE IS VOID


submitted to Tamil Nadu National Law School in partial fulfillment of the requirement of
the award of the degree of B.com.,LLB is a record of original work done by me under the
supervision and guidance of Prof. Pranusha Kulkarni faculty for Family Law department
of Tamil Nadu National Law School, Trichy and that has not formed the basis for the
award of any degree or diploma or fellowship or any other title to any candidate of any
university.

Place: Trichy

Date: 29.05.17

H.Mohamed Abdul Raaziq

REG.NO. BC0150015

2nd year B. com., LLB (Hons)

Tamil Nadu National Law School

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

ACKNOWNLEDGMENT

At the outset, I take this opportunity to thank my Professor Pranusha


Kulkarni from the bottom of my heart who has been of immense help during
moments of anxiety and torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Mr.Arun Roy


and the administrative staff of Tamil Nadu National Law School who held the
project in high esteem by providing reliable information in the form of library
infrastructure and database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their


precious time is unforgettable and highly solicited. Their valuable advice and
timely supervision paved the way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to
confront all hurdles during the making of this project. Words arent sufficient to
acknowledge the tremendous contributions of various people involved in this
project, as I know Words are Poor Comforters. I once again wholeheartedly and
earnestly thank all the people who were involved directly or indirectly during this
project making which helped me to come out with flying colours.

H. Mohamed Abdul Raaziq

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

TITLE
1. List of Abbreviations:
i. SC Supreme Court
ii. HC High Court
iii. HMA Hindu Marriage Act
iv. IPC Indian Penal Code
v. Cr.P.C Criminal Procedure Code
vi. S. - Section
vii. Mad. Madras High Court
viii. Cal. Calcutta High Court
ix. Ker. Kerala High Court

2. List of cases:
i. Krishnan v. Ammalu, 1972 Ker 91.
ii. Narotam Singh v State of Punjab, AIR 1978 SC 1542.
iii. S. Radhika Sameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad,
1997 CriLJ 1655 (AP).
iv. Tapendro Mullick vs. Purnendra Mullick,(1999) DMC 523.
v. Lalji Haridas v. States of Maharashtra, AIR 1964 SC 1154.
vi. Bhaurao vs State of Maharashtra, AIR 1965 SC 1564.
vii. Padullapath Mutyala v Subbalakshmi , AIR 1962 AP 311.
viii. Trailokya Mohan v State, AIR 1968 Ass 22.
ix. Itwari v Asghari , AIR 1960 All 684.
x. Raz Mohammad v Saeeda Amina Begum , AIR 1976 Kant 200.
xi. Shahina parveen v Mohd Shakeel, AIR 1987 Del 210.
xii. Megh Prasad v. Bhagwanti Bai, AIR 2010 Chhattisgarh 25 (para 9).
xiii. Sushma Choure v. Hetendra Kumar Borkar, AIR 2010 Chhattisgarh 30
(DB) (paras 12 and 14).
xiv. M.M.Malhotra vs.Union of India, AIR 2006 SC 80.
xv. Jayalakshmi v. Gayatri, AIR 1998 Kant 169
xvi. Savitri Devi v. Manorama Bai, AIR 1998 MP 114.
xvii. Sheelwati vs Ram Nandani, AIR 1981 All 42.
xviii. Ram Pyari vs Dharam Das, AIR 1984 All 147.
xix. Ajay Chandarkar vs.Ushabai, 2000 AIHC 1292 (MP).
xx. LakshmiAmmal vs Ramasawamy , AIR 1960 Mad. 6.
xxi. Rajeshwar Reddi vs Lakshmi Bai, 1964 (2) An.WR 142.
xxii. A.Subash Babu vs State Of A.P.& Anr, AIR 2011 SC 3031.
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BIGAMOUS MARIAGE IS A VOID MARRIAGE

xxiii. Sarla Mudgal v Union of India, AIR 1995 SC 1531.


xxiv. Lily Thomas v Union of India,(2000) 6 SCC 224.
xxv. Vilayat Raj v Sunila, AIR 1983 Delhi 351.
xxvi. In re P Nagesashayya , (1988) Mat LR 123.
xxvii. B. Chandra Manikyamma v B. Sudarsana Rao alias Saleem Mohammed,
1988 CriLJ 1849.
xxviii. Sm. Susama Singh vs Sri Sailendra Nath Singh, AIR 1961 Cal 373.
xxix. Suresh Babu vs V.P. Leela, AIR 2007 (NOC) 285 (Ker).
xxx. Satyanarayana v. Sseetheramama, AIR 1997 AP 720.
xxxi. Annamalai Mudaliar v Perunayee Ammal, AIR 1965 Mad 139.
xxxii. Laxmibai v. Ayodhya Prasad, AIR 1991 MP 47.
xxxiii. Rajesh Bai v. Shantabai, AIR 1982 Bom 231.
xxxiv.Revanasiddappa vs Mallikarjun, (2011) 11 SCC 1.
xxxv. Rameshchandra Daga vs Rameshwari Daga, AIR 2005 SC 422.
xxxvi. Surajmani Stella Kujur (Dr.) v Durga Charan Hansdah, AIR 2001 SC
938.
3. List of enactment:
i. Specific Marriage Act, 1954
ii. Foreign Marriage Act 1969
iii. Christian Marriage Act, 1872
iv. Parsi Marriage and Divorce Act 1936
v. Hindu Marriage Act, 1955
vi. Indian Penal Code, 1860
vii. Criminal Procedure Code,1973
viii. Civil Procedure Code,1908
ix.

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

Table of Content

Chapter I

i. Introduction..8
ii. Marriage...8

Chapter II

i. Bigamy.9
a) What is Bigamy? 9
b) Origin .10
c) Why it is not valid? 10

Chapter III

i. Bigamy is an Offence .11


ii. Nature of offence 12
iii. Bigamy under other civil laws.13
a) Specific Marriage Act, 1954...13
b) Foreign Marriage Act 1969.13
iv. Bigamy under Community and Specific Legislation....14
a) Christian Marriage Act, 1872..14
b) Parsi Marriage and Divorce Act 1936.15
c) Hindu Marriage Act, 1955 ......16
d) Bigamy under Muslim Law.18

Chapter IV

i. Rights of First Wife...18


ii. Rights of Second Wife...20
iii. Third Party Cannot File a Petition for Relief.20

Chapter V

i. Effect of change of religion.21


a) Specific Marriage Act and Foreign Marriage Act..21
b) Christian Marriage Act 1872...21
c) Parsi Marriage Act and Divorce Act 1936..21
d) Hindu Marriage Act, 1955...21
e) Muslim Law.22
ii. Judicial Decision relating to Bigamy by Conversion of Religion.22

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

Chapter VI

i. Bigamy as a grounds for Divorce..25


ii. Bigamy as a grounds for Maintenance...26
iii. Succession and Inheritance of property..27

Chapter VII

i. Bigamy is not applicable to Tribal People..28

Chapter VIII

i. Conclusion .28
ii. Bibliography...29

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

Chapter I:

i. Introduction:
A Family is a unit in the society, to determine the development in the society the development of
the family is also taken into consideration. The arrangement of the family should be in a proper
way so the future generation can follow the same foot step. If the family structure collapse the
everything will come to an end in order to make it proper society as a whole has made certain
law in order to control the distraction from the society and maintain a disciplined society.
Marriage is the first element of the family that marriage should be governed properly by the
personal law there should not be any loop hole to escape from law. Bigamy (polygamy and
andry) exist both in ancient and modern period it is also one of the offence which could not be
controlled though there are many law such as Hindu Marriage Act (1955), Special Marriage
Act(1954), Foreign Marriage Act(1969), Indian Christian Marriage Act(1872), Parsi Marriage
and Divorce Act(1936) considers Bigamous marriage as void. In India Bigamy is an offence
under all personal law but except under Muslim law it is not an offence so on having a religious
discrimination people in order to enjoy the facilities available under Muslim personal law people
get converted now it is the new trend it should be also considered to be void.

ii. Marriage:
Till today we cant come to a conclusion whether marriage is a contract or sacrament. According
Hindu Law it is considered as a sacramental part of their culture or a contract, but according to
the Muslim Law marriage is a contract. Lets see what is marriage first, according to Black Law
Dictionary it is the civil status of one man and one woman united in law for life, for the
discharge to each other and the community of the duties legally incumbent on those whose
association is founded on the distinction of sex1. From the Jurist Paras Diwan talk we come to
know the real nature of the Hindu Marriage. In Hindu Marriage Act (1955) probably S.5 deals
with the conditions of marriage.

(a) Clause (i) of this section deals with monogamy.


(b) Clause (ii) of the section deals with mental capacity.
(c) Clause (iii) lays us down that at the time of marriage the bridegroom and bride should be
atleast 21 & 18 respectively.
(d) Clause (iv) of this section deals with Degrees of prohibited relationship.
(e) Clause (v) of this section deals with Sapinda relationship.

1 Black's Law Dictionary, 2nd edition.

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

The age of marriage hence apparently looks like a contract as consent by competent parties is a
condition precedent to marriage. The Contract of minor, unsound is void as we all know as per
S.11 (Indian Contract Act, 1872) it is similar to S.5 of Hindu Marriage Act, 1955. So marriage
can also be considered as a contract. But the fact of the matter is that the marriage of a
unsound/minor is just voidable and not void (in normal situations) a perfectly valid marriage
unless chosen to be avoided.

But in Hindu marriage Act considerably consent is not given much importance so in that case can
we considered the marriage as a sacramental one. t has been seen that the sacramental marriage
among Hindus has 3 characteristics :

(i) it is a permanent & indissoluble union,


(ii) it is an eternal union, and
(iii) it is a holy union.

It is evident that the first element has been destroyed by the act since divorce is recognized.
Second element was destroyed in 1856 by recognition of Widow Remarriage. Probably to some
extent third element is still retained. In most of the Hindu Marriages a sacred or religious
ceremony is still necessary. But the ceremonial aspect of the sacramental marriage is of least
importance.

From the above it may be concluded that the Hindu Marriage has not remained a sacramental
marriage and at the same time has not become a contract, though it has semblance of both . It has
semblance of a contract as consent is of some importance; it has semblance of a sacrament as in
most marriages a sacramental ceremony is necessary2.

Chapter II
i. Bigamy:

a) What is Bigamy?
Bigamy is condition of having two wives or two husband at the same time. It is a marriage, in
which one of the parties is already legally married to another person. Bigamy becomes an
offence when a person marries another person while the first spouse is alive. It is considered to
be null and void under section 11 of Hindu Marriage Act and under section 5 of Hindu Marriage
Act clause (i) say that neither party has a spouse living at the time of the marriage, if it is found

2 Is Hindu Marriage a Sacrament or a Contract or a semblance of both? article published


on March 29, 2012In The Law of India Common Mans Guide.

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

that a person has a spouse living at the time of marriage then that marriage is not a valid
marriage. Section 17 of the Act read with Ss. 494 and 495 of IPC makes such a marriage an
offence.

Bigamy is a non-cognizable offence, bailable and compoundable with the permission of the
court. It is punishable with imprisonment up to 7 years or fine or both. For the offence of
committing bigamy by concealing the fact of the first marriage is punishable with 10 years
imprisonment or fine or both.

Exception to the offence of Bigamy is i) when the first spouse is dead on the date of second
marriage ii) if the first marriage is considered to be null and void by the valid court. iii) when the
first spouse is unheared for more than 7 years.

b) Origin:
Bigamia => bigamy (bigamous + y). It has its origin from late medival latin origin.

Bigamy includes both polygamy and polyandry. Polygamy permits a male to have more than one
wife simultaneously. Polyandry permits a female to have more than one husband simultaneously.
Polyandry was not recognized by Hindu law, though by custom it prevailed in some regions in
North and South. In Lahaul valley in Himachal Pradesh and among Thiyyas of South Malabar,
polyandry was recognized3.

c) Why it is not valid?


In India bigamy is not allowed by Hindu Law but Muslim Law allows doing so. In India from
Vedic period, though monogamy has been the rule, polygamy as an exception, existed side by
side. The rules relating to anuloma marriages allowed a man more than one wife. But the wife
who was first wedded was alone the wife in the fullest sense. Apastamba says that: if a man
has a wife who is willing and able to perform the religious duties and who bears sons, he shall
not take a second wife4.

Manu allowed a second marriage to a man only after the death of his wife. But under certain
circumstances, he allowed a second wife. It was only when a wife was barren, diseased, or
vicious, that could be superseded and a second marriage was valid; as also when she consented5.
On the supersession of a wife, the husband had to make provision for her. However, a peculiar
sanctity seems to have been attributed to the first marriage, as being that which was contracted

3 Krishnan v. Ammalu, 1972 Ker 91 cf: DR. Paras Diwan- Modern Hindu Law, 18th
edn. 2007, p.105, Allahabad Law Agency, Faridabad (Haryana).

4 Apastamba.,ii, 5,11,12-13; Maynes Hindu Law & Usage, 14th edn.,1998, p.155,
Bharat Law House, New Delhi.

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

from a sense of duty, and not merely for personal gratification. The first married wife had
precedence over the others and her first- born son over his half-brothers6.

However, in some cases, the custom prevents any second marriage without the consent of the
first wife and without making provision for her20. Section 2 (4) of the Married Womens Right
to Separate Residence and Maintenance Act, 1946 allowed the first wife to separate residence
and maintenance, if her husband marries again.

The first clause of section 5 of Hindu Marriage Act provides that neither party has a spouse
living at the time of marriage. This clause strongly recommends monogamy and strictly
prohibits bigamy (polygamy and polyandry). Before 1955, Hindu can have any number of
spouses but it is restricted to female only males were allowed. Under Section 11 of the Hindu
Marriage Act, 1955, bigamous marriages are void. Section 17 of the Act makes it a penal
offence for both Hindu males and females under Sections 494 and 495 I.P.C.

Chapter III:

i. Bigamy is an Offence:
The Chapter on Offences relating to Marriage under the Indian Penal Code of 1860 contains two
provisions relating to bigamy the first of these applicable to married persons marrying again
without concealing from the second spouse the fact of the first marriage, and the second to those
who do so by keeping the second spouse in the dark about the first marriage. Section 494 of the
Indian Penal Code reads as:-

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.

Exception. -- This section does not extend to any person whose marriage with such husband or
wife has been declared void by a court of competent jurisdiction, nor to any person who

5 Manu ix, 77-82; Yajn, i, 73; Maynes-Hindu Law & Usagev, 14th edn. 1998, p.155,
Bharat Law House, New Delhi.

6 Manu iii, para 12, 14; ix, Paras 117, 133-135; cf: Maynes- Hindu Law & Usage,
14th edn. 1998, p.156, Bharat Law House, New Delhi.

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contracts a marriage during the life of a former husband or wife, if such husband or wife, at the
time of the subsequent marriage, shall have been continually absent from such person for the
space of seven years, and shall not have been heard of by such person as being alive within that
time, provided the person contracting such subsequent marriage shall, before such marriage takes
place, inform the person with whom such marriage is contracted of the real state of facts so far as
the same are within his or her knowledge.

Coming to the cases of bigamy where a person indulges in it by deceiving the second spouse,
Section 495 of the Indian Penal Code says:-

Whoever commits the offence defined in the last preceding section having concealed from the
person with whom the subsequent marriage is contracted, the fact of the former marriage, shall
be punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.

It will be seen that application of these provisions of the Indian Penal Code would be attracted
only if the second marriage is void, for the reason of being bigamous, under the law otherwise
applicable to the parties to a particular case; but not so otherwise.

As such the anti-bigamy provisions of the Indian Penal Code apply to all those whose marriages
are governed by any of the following legislative enactments all of which regard a second
bigamous marriage, by a man or woman, as void :

(i) Special Marriage Act 1954


(ii) Foreign Marriage Act 1969
(iii) Christian Marriage Act 1872
(iv) Parsi Marriage and Divorce Act 1936
(v) Hindu Marriage Act 1955.

As regards the Muslims, the IPC provisions relating to bigamy apply to women since Muslim
law treats a second bigamous marriage by a married woman as void but not to men as under a
general reading of the traditional Muslim law men are supposed to be free to contract plural
marriages. The veracity of this belief, of course, needs a careful scrutiny.

ii. Nature of Offence:


The offence under Section 494 of the Indian Penal Code is non-cognizable, bailable and
compoundable by the aggrieved spouse with the permission of the court. That the offence is
compoundable by mutual consent of the parties was affirmed in Narotam Singh v State of
Punjab7.

7 AIR 1978 SC 1542.

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

In the State of Andhra Pradesh, however, by a local amendment of 1992 the offence under
Section 494 was made cognizable, non-bailable and non-compoundable.

The offence under Section 495 of the Penal Code is non-cognizable, bailable and unlike that
under Section 494 -- non compoundable. Notably, in Andhra Pradesh this offence too has been
made cognizable and non- bailable.

iii. Bigamy under other civil laws:

a) Specific Marriage Act, 1954:


Monogamy is the rule under the Special Marriage Act 1954. Among the conditions for
solemnization of a civil marriage spelt out in the Act the foremost is that neither party has a
spouse living Section 4 (a).

In respect of bigamy there are two different penal provisions under the Act. If a person already
married, under whatever law, fraudulently contracts a civil marriage the provision of Section 43
of the Act reproduced below will apply:

Save as otherwise provided in Chapter III, every person who, being at the time married,
procures a marriage of himself or herself to be solemnized under this Act shall be deemed to
have committed an offence under section 494 or section 495 of the Indian Penal Code, as the
case may be, and the marriage so solemnized shall be void.

The other provision contained in Section 44, reproduced below, is meant for a person married
under the Special Marriage Act who contracts a second marriage under any other law:

Every person whose marriage is solemnized under this Act and who, during the lifetime of his
or her wife or husband, contracts any other marriage shall be subject to the penalties provided
in Section 494 and Section 495 of the Indian Penal Code, for the offence of marrying again
during the lifetime of a husband or wife, and the marriage so contracted shall be void.

In S. Radhika Sameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad8 case the Court
held that the anti-bigamy provisions of the Special Marriage Act apply to every marriage
contracted under its provisions irrespective of the religion of the parties. A court has specifically
held that if a Muslim contracts a civil marriage under the Special Marriage Act instead of his
personal law the anti-bigamy provisions of the Act will apply to him.

8 1997 CriLJ 1655 (AP).

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

iv. Bigamy under Community and Specific Legislation:

a) Christian Marriage Act, 1872:


As is well known, the Christian religion prohibits bigamy. In India Christian marriages are
governed by an old Act of the British period the Christian Marriage Act 1872. It applies to all
sorts of marriages among the Christians of India and requires them to be solemnized under its
provisions not only when both parties are Christian but also when one of them is a Christian and
the other a non-Christian (see Section 4 of the Act).

The first step to marriage is to give notice to the church by both the parties to the marriage the
person giving a notice may be either a bachelor/spinster or widower/widow. Their marriage can
be solemnized only by the issues of declaration certificate by the church. Marriages can, under
this Act, be either solemnized by a Minister of Religion of a Church, or by or in the presence of
a Marriage Registrar.

The marriage of a native Christian can be certified without the preliminary notice mentioned
above subject to the condition, inter alia, under Section 60 that neither of the persons intending
to be married shall have a wife or husband still living.

The Act under Section 66 provides that a person making a false oath or declaration or signing a
false notice, intentionally and for the purpose of procuring a marriage, shall be guilty of the
offence punishable under Section 193 of the Indian Penal Code. The Calcutta High Court in
Tapendro Mullick vs. Purnendra Mullick9 case the false declaration will be punished. The
person within the prohibited degrees and are direct blood relations. On 26th April, 1991, the
accused persons applied to the Registrar of Marriages and filed a false declaration that they do
not come within the prohibited degree. The marriage was duly registered by the Registrar of
Marriages on the basis of the false declaration given by the accused persons. Hence, the accused
persons have committed offences punishable under Sections 199, 193/34, Indian Penal Code,
read with Section 45 of the Special Marriage Act.

The Apex Court in case of Lalji Haridas v. States of Maharashtra10 held that it is, therefore,
clear that if a false declaration has been made regarding the status of the bride and bridegroom,
would be punished under Section 193 and 199 of IPC.

9 (1999) DMC 523.

10 AIR 1964 SC 1154.

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

There is no specific reference in this Act to the anti-bigamy provisions contained in Sections
494-495 of the Indian Penal Code. Since bigamy is strictly prohibited by the Christian religious
law and the Act also impliedly prohibits it, applicability of the said IPC provisions to married
Christians may be seen as a foregone conclusion. Yet, there is a case for making the Act specific
on this point.

b) Parsi Marriage and Divorce Act 1936:


Unlike the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 specifically
prohibits bigamy and says that Sections 494-495 of the Indian Penal Code will be attracted by
every case of bigamy in any marriage governed by that Act. Sections 4 and 5 of the Act read as
follows:

Section 4

(1) No Parsi (weather such Parsi has changed his or her religion or domicile or not) shall
contract any marriage under this Act or any other law in the life time of his or her wife or
husband, whether a Parsi or not, except after his or her lawful divorce from such wife or
husband or after his or her marriage with such wife or husband has lawfully been declared null
and void or dissolved; and, if the marriage was contracted with such wife or husband under the
Parsi Marriage and Divorce Act, 1865, or under this Act, except after a divorce, declaration or
dissolution as aforesaid under either of the said Acts.

(2) Every marriage contracted contrary to the provisions of sub- section (1) shall be void.

Section 5

Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not,
contracts a marriage without having been lawfully divorced from such wife or husband, or
without his or her marriage with such wife or husband having legally been declared null and
void or dissolved, shall be subject to the penalties provided in sections 494 and 495 of the Indian
Penal Code (45 of 1860) for the offence of marrying again during the lifetime of a husband or
wife.

c) Hindu Marriage Act, 1955:


In ancient time Hindus were not restricted to polygamy they were allowed, no one questioned
them and imposed restriction on polygamist- husband. The Muslim rulers of India had left the
Hindu law on polygamy whatever it was untouched and did not impose on any non-Muslim
the rules of Islamic law tolerating limited polygamy in a well-defined discipline of equal justice
to co-wives. The British rulers, who did reform many other aspects of Hindu law, also did not
abolish the rules on polygamy under the traditional Hindu law and custom. Only the

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

Brahmosamajis had managed to legally adopt monogamy under a special law enacted for them in
the erstwhile Bengal province in 1872.

After independence finally, in 1955 Parliament enacted the Hindu Marriage Act putting a blanket
ban on bigamy for the Hindus. Buddhists, Jains and Sikhs, declaring bigamous marriages on
their part in future to be void and penal (see Sections 5, 11 & 17).

One of the conditions for a valid marriage under the Section 5 (i) Hindu Marriage Act is that
neither party has a spouse living at the time of the marriage. Violation of this condition shall
make the marriage null and void and liable to be so declared by a decree of nullity on a petition
filed by either party against the other party (Section 11).

Section 17 of the Hindu Marriage Act once again declares every bigamous marriage among
persons governed by the Act to be void and makes it punishable under the anti-bigamy
provisions of the Indian Penal Code 1860. It reads as follows:

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 shall apply accordingly.

According to Section 7 (2) of Hindu Marriage Act it state that - Where such rites and
ceremonies include the saptpadi (that is, 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.

When there is a prosecution for Bigamy the question whether the alleged second marriage
conformed to be recognized from assumes importance. In Bhaurao vs State of Maharashtra11 ,
there was a prosecution for Bigamy. With reference to the alleged second marriage there was no
proof that the essential shastric ceremonies of invocation before the sacred fire and Saptapadi
were performed. It was held that the conviction for Bigamy in such circumstances was not
justified. The Supreme Court observed: the marriage to which Section 494 of Indian Penal Code
(Bigamy) applies on the account of the provisions of the Act (Sec. 17 of HMA, 1955) should
have been celebrated with proper ceremonies and in due form. Merely going through certain
ceremonies with the intension that the parties be taken to be married will not make the
ceremonies prescribed by law or approved by any established custom. The conviction for
Bigamy was quashed.

Though Section 7 (2) says that if a marriage is solemnized through the Saptpadi ceremony the
marriage will be complete and binding on taking the sevenths step, some High Courts took the
view that this is not a special rule of evidence requiring in a case of bigamy proof of the seventh
11 AIR 1965 SC 1564.

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BIGAMOUS MARIAGE IS A VOID MARRIAGE

step having been duly taken. Padullapath Mutyala v Subbalakshmi12, Trailokya Mohan v
State13

In 1988 a learned judge of the Andhra Pradesh High Court, Radha Krishna Rao, had issued an
important note of caution:

"During the subsistence of the first marriage the second marriage will generally be done in
secrecy. It is too idle to expect direct testimony. In some cases the purohit also who performed
the marriage will be treated as abettor. The courts are giving acquittals on the ground that the
required ceremonies for the second marriage have not been proved beyond reasonable doubt.
Suitable legislation has to be made with regard to the mode of proof of the second marriage. If
the marriage was done publicly and openly to the knowledge of one and all, the court can expect
direct evidence. When second marriage is being performed in secrecy, knowing fully well that it
is an offence, if the courts insist on strict proof, it amounts to encouraging perjury. The motto of
the court is not to encourage perjury, but to find out the real truth and convict the accused if there
is a second marriage. Unfortunately, none of the social organizations which' claim about the
protection of the rights of women, have taken any steps to see that suitable legislation be made
with regard to the mode of proof for performance of the second marriage."14

d) Bigamy under Muslim Law:


It is generally believed that under Muslim law a husband has an unfettered right to marry again
even where his earlier marriage is subsisting. On a closer examination of the relevant provisions
of the Qur'an and the other sources of Islamic law, this does not seem to be the truth. The rule of
Muslim law conditionally permitting bigamy in fact visualized two or more women happily
living with a common husband taking a second wife after forsaking or deserting the first was
not Islams concept of bigamy.

The Holy Qur'an put restrictions on it, allowing it within limits, and even within those limits
subjecting it to a strict discipline. The Qur'an permitted polygamy subject to a strict condition
that the man must be capable of ensuring equal treatment of two wives in every respect.
Asserting that this may not be possible even with the best of intentions, the Holy Book at the
same time advised men to keep to monogamy as this would keep you away from injustice
(Quran, IV: 3 & 129). To this Qur'anic reform the Prophet added a highly deterrent warning: "A

12 AIR 1962 AP 311.

13 AIR 1968 Ass 22.

14 [1988 CriLJ 1848].

17
BIGAMOUS MARIAGE IS A VOID MARRIAGE

bigamist unable to treat his wives equally will be torn apart on the Day of Judgment." This was
the reform that the Islamic religious law could, and did, introduce in the 7th century AD.

If bigamy means forsaking of the first wife without divorcing her and bringing in a new wife, the
Qur'an certainly does not permit it. In Muslim law bigamy envisages two women happily
married to the same man actually living with him and getting from him equally all that a wife can
expect from her husband. Where this is not possible, the Qur'an enjoins the husband to remain a
monogamist.

The Muslim law -- as now traditionally understood, interpreted and applied in India -- is however
believed to permit four marriages during the subsistence of one another. In India bigamy is not
very common among the Muslims and cases of men having more than one wife at a time are few
and far between. The Muslim society of India in general in fact looks at polygamy with great
disfavour and a bigamist is generally looked down upon in and outside his family. Despite this,
unfortunately, the religious leaders are not prepared for any legislative reform in this respect and
the religious sensitivities have never allowed the State to introduce any reform in this regard.

The court in India took a general overlook and considered Bigamy as a cruelty against the first
wife. In the case like Itwari v Asghari15, Raz Mohammad v Saeeda Amina Begum16, Shahina
parveen v Mohd Shakeel17 several High Courts have held that bigamy amounts to cruelty which
can be pleaded as an answer to the mans suit for restitution of conjugal rights against the first
wife.

Chapter IV:

i. Rights of First Wife:


Either it is Hindu or Muslim doing the act of Bigamy its only the women who are affected in
most of the cases. When the first marriage take place by fulfilling all the accept of the marriage
ceremonies it cannot be dissolved according to Hindu sacraments but now-a-days we get rid of
the marriage life by getting divorce. If the first marriage is a valid marriage, and on the other-
hand if the person want to marry another person he/ she should get legally separated from the

15 AIR 1960 All 684.

16 AIR 1976 Kant 200.

17 AIR 1987 Del 210.

18
BIGAMOUS MARIAGE IS A VOID MARRIAGE

first marriage i.e getting dissolved by the degree of divorce. Only after getting complete divorce
he / she can have a second Marriage. Merely applying for divorce does not relieve him from the
first marriage if he / she marry without getting a complete divorce then it will come under the
offence of Bigamy. Even if the second marriage is done with the consent of the first wife then
also it is said to be a punishable offence and considered as bigamy.

The first wife of a bigamous marriage has no right to file a petition for nullity under the Hindu
Marriage Act, 1955 since Section 12 clearly lays down that a petition for a declaration that the
marriage is null and void can be filed only by either party to the marriage. But the first wife can
file a suit in a civil court for a declaration under Section 9, C.P.C. read with Section 34, Specific
Relief Act, 1963 that the second marriage of her husband is null and void. She can also file a
petition for divorce under Section13 (1) (i) of Hindu Marriage Act, 1955 on the ground of
Adultery. Even her father can give a compliant on behalf of her against her cheated husband even
before the second marriage or after that also.

In Megh Prasad v. Bhagwanti Bai18, respondent married appellant with the consent of his first
wife. At the time of alleged marriage of respondent with appellant, both parties i.e. appellant and
respondent were having spouses and their marriages were not dissolved by a decree of divorce or
by any recognized custom. Such marriage is in violation of Section 5 (i) of the Hindu Marriage
Act, 1955. Respondent is not legally wedded wife or lawful wife of appellant. The words Hindu
wife used in Section 18 of the Hindu Adoptions and Maintenance Act, 1956 only include lawful
wife or legally wedded wife and does not include any wife of second marriage during
subsistence of her first marriage.

Smt. Sushma Choure v. Hetendra Kumar Borkar19, the court held that the second marriage
during subsistence of first marriage is void.

In M.M.Malhotra vs.Union of India20, the Court held that Husband married a women during the
subsistence of her first marriage. Such marriage is being null and void, his subsequent marriage
to another women would not be case of plural marriage. It is further held that the clause (i) of S.5
lays down for a lawful marriage, necessary condition that neither party should have a spouse
living at the tie of marriage. A marriage in contravention of this condition, therefore is null and
void.

18 AIR 2010 Chhattisgarh 25 (para 9).

19 AIR 2010 Chhattisgarh 30 (DB) (paras 12 and 14).

20 AIR 2006 SC 80.

19
BIGAMOUS MARIAGE IS A VOID MARRIAGE

Proving bigamy, however, is not easy. The complainant wife has to prove that both the marriages,
her own as well as the second bigamous one have been performed properly according to the
appropriate ceremonies. Most prosecutions for bigamy fail because the complainant does not
have the proof of the bigamous marriage. The accused husband can usually successfully claim
against all efforts to prove the contrary that essential parts of the ceremony were never carried
out and escape punishment. Recently Supreme Court held that in bigamy cases while lodging a
criminal complaint it is not necessary for the aggrieved party to prove that marriage ceremonies
were performed as it is for the trial court to decide the veracity of the allegations.21

The apex court gave the verdict while upholding the appeal of a woman K Neelavani, case
challenging a Madras High Court order quashing the charge sheet filed against her husband S K
Siva Kumar under IPC Sections 406 (breach of trust) and 494 (bigamy-second marriage).

ii. Rights of the Second Wife:


In bigamous marriage, the second wife has no status of wife22. But in case she files a petition
for nullity, she can claim both interim and permanent maintenance. If a husband/wife is about to
take a second wife/husband, the first wife/husband can ask for an injunction from the court. A
suit for perpetual injunction by one spouse against the other can be filed under Section 9, C.P.C
read with Section 38, Specific Relief Act, 1963. Only second wife has rights to ask for nullity of
the marriage under section 11, Hindu Marriage Act, 1955 but not the first wife can ask for nullity
of the second marriage because she is not the party to the marriage.

iii. Third Party Cannot File a Petition for Relief:


In Sheelwati vs Ram Nandani23 the Allahabad High Court held that under S.11 a decree of
nullity declaring that a marriage is void can be passed only at the instance of the either party to
the marriage. A third party cannot have a relief under S.11.

21 Proof not necessary for FIR in bigamy cases: Supreme Court - All India Press
Trust of India, BY NDTV Updated: April 02, 2010 20:13 IST.

22 Jayalakshmi v. Gayatri, AIR 1998 Kant 169; Savitri Devi v. Manorama Bai, AIR
1998 MP 114.

23 AIR 1981 All 42.

20
BIGAMOUS MARIAGE IS A VOID MARRIAGE

The Allahabad High Court in Ram Pyari vs Dharam Das24 has overruled the case of Sheelwati
vs Ram Nandani, it has now held that if a marriage is void it can be challenged in a suit by any
parties whos rights is affected. This can be done even after the death of one or both the spouses.
This is because the marriage is void ad utterly ineffectual.

In Ajay Chandarkar vs.Ushabai25, The Court held that remedy under S.11 is only available only
to a person who is a party to such marriage and the first wife not being a party cannot file a
petition under this section but she may prefer a suit for declaration under S.34 of the Specific
Relief Act, 1963.

The Nullity of marriage can be declared only under S.11 it can be only filed by either party to the
marriage in LakshmiAmmal vs Ramasawamy case26 it was held that third party canot file such
petition. But , a separate suit lies at the instance of the third party to declare void and null a
marriage between her husband and the defendant27.

Chapter V:
Effect of change of religion :

a) Specific Marriage Act and Foreign Marriage Act:


Post-marriage conversion by either party to a civil marriages has no legal consequences the
convert remains subject to the provisions of the Special Marriage Act 1954 or the Foreign
Marriage Act 1969, as the case may, and neither the converting spouse can contract another
marriage nor the other spouse can seek divorce on the ground of change of religion.

24 AIR 1984 All 147.

25 2000 AIHC 1292 (MP)

26 AIR 1960 Mad. 6.

27 Rajeshwar Reddi vs Lakshmi Bai, 1964 (2) An.WR 142; LakshmiAmmal vs Ramasawamy
case, AIR 1960 Mad. 6; Ram Pyari vs Dharam Das, AIR 1984 All 147.

21
BIGAMOUS MARIAGE IS A VOID MARRIAGE

If either party in such a situation marries again after changing religion, but without obtaining
divorce or a decree of nullity, his or her conduct will still attract anti-bigamy provisions of the
Indian Penal Code.

b) Christian Marriage Act 1872:


A post-marriage change of religion by either spouse may have no effect on prohibition of bigamy
under the Christian law since both the Christian Marriage Act 1872 and its divorce supplement,
the Indian Divorce Act 1869, apply also to cases where only one spouse is a Christian.

c) Parsi Marriage Act and Divorce Act 1936:


The reference to bigamy after change of religion and its prohibition constitute a unique feature of
the Parsi Marriage and Divorce Act 1936 which has no parallel under any other family-law
enactment for the time being in force.

d) Hindu Marriage Act, 1955:


Post-marriage change of religion by either party is under the Hindu Marriage Act a ground for
divorce in the hands of the other non-converting spouse [Section 13 (1) (ii)]. Without obtaining
this relief the non-converting spouse cannot marry again.

As regards the converting spouse, the Act says nothing as to whether its anti-bigamy provision,
or any other provision for that matter, would cease to apply to him or her. In the absence of a
clear statutory provision on this point, it has always been a contentious issue if a married man
governed by this Act can upon his conversion to Islam contract a second bigamous marriage
which, it is generally believed, is permissible under Muslim law.

Unexceptional abolition of bigamy for the Hindus, Buddhists, Jains and Sikhs has created a
serious problem for those married men among these communities who for some reason or the
other, justifiable or unjustified, want to marry again. The new law wants them to first have the
existing marriage legally dissolved. This is not easy. The Hindu Marriage Act makes room for
dissolution of marriages, but the cumbersome judicial process in the ordinary civil courts given
the jurisdiction under the Act has turned divorce-proceedings into vexatious and long-drawn out
struggles.

There are genuine cases of broken marriages, as also those in which people dishonestly want to
kick out their first wives and take new partners the former cases, of course, outnumber the
latter. Those married men who want to marry again have no religious inhibition, since they
believe that their religion allows them to have their wish; and they do not mind violating the
newly imposed legal ban on bigamy without any religious sanction for it. To avoid the penalties
threatened by the new law to be inflicted on bigamists they, however, need a 'device'. And,

22
BIGAMOUS MARIAGE IS A VOID MARRIAGE

different 'devices' are suggested by those who are always ready to help lawbreakers a fake
conversion to Islam being foremost among these devices.

The law of monogamy under the Hindu Marriage Act is, indeed, full of serious shortcomings and
loopholes. Combined with the Act's provisions relating to marriage-rites, it provides in-built
devices for an easy avoidance of all the consequences of its violation.

e) Muslim Law:
Under the traditional Muslim law if a married Muslim woman converts to another religion her
marriage would be automatically dissolved. This rule is, however, not applicable in India. The
Dissolution of Muslim Marriages Act 1939 provides that apostasy of a Muslim wife shall not
dissolve her marriage (Section 4). So, although the 1939 Act does not specifically say so, if a
married Muslim woman renounces Islam and, believing that her first marriage has been ipso
facto dissolved marries again, her second marriage will attract application of Section 494-495 of
the Indian Penal Code.

There is an exception to this rule under the Dissolution of Muslim Marriages Act 1939 if a
married convert Muslim woman by renouncing Islam reverts to her original religion the
provision of Section 4 will not apply. In other words, in this case her re-conversion will
automatically dissolve her marriage with her Muslim husband. In such a case, therefore, anti-
bigamy provisions of the Indian Penal Code will not apply. The exceptional provision clearly
seems to be discriminatory.

i. Judicial Decision relating to Bigamy by Conversion of Religion:


There has always been a simmering discontent in the judiciary regarding the tendency of
converting to Islam for the sake of contracting a second bigamous marriage and the courts have
tried to control it.

It was observed that the decision in Sarla Mudgal v. Union of India28, holding that the second
marriage of the Hindu husband after conversion to Islam without having his first marriage
dissolved under the law, would be invalid, the second marriage would be void in terms of the
provisions of the Section 494, IPC and the apostate- husband would be guilty of the offence
under S.194 of IPC does not lays down any new law. It cannot be said that the second marriage
by convert male Muslim has been made offence only by judicial pronouncement. The court has
only interpreted the existing law which was in force. It is settled principle that the interpretation
of a provision of law relates back to the date of the law itself and cannot be prospective from the

28 AIR 1995 SC 1531.

23
BIGAMOUS MARIAGE IS A VOID MARRIAGE

date of the judgment because concededly the court does not legislate but only give an
interpretation to an existing law.

The Court observed that "Since it is not the object of Islam nor is the intention of the enlightened
Muslim community that the Hindu husbands should be encouraged to become Muslim merely
for the purpose of evading their own personal law by marrying again, the courts can be
persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted
to Islam the right to marry again without having his existing marriage dissolved in accordance
with law".

As regards the logic by which a married non-Muslims second bigamous marriage contracted
after conversion to Islam could be treated as void under the Hindu Marriage Act,

It is no doubt correct that the marriage solemnized by a Hindu husband after embracing Islam
may not strictly be a void marriage under the Act because he is no longer a Hindu, but the fact
remains that the said marriage would be in violation of the Act which strictly professes
monogamy. The expression void for the purpose of the Act has been defined under Section 11
of the Act. It has a limited meaning within the scope of the definition under the section. On the
other hand the same expression has a different purpose under Section 494 IPC and has to be
given meaningful interpretation. The expression void under Section 494 IPC has been used in
the wider sense.

A marriage which is in violation of any provisions of law would be void in terms of the
expression used under Section 494 IPC. A Hindu marriage solemnized under the Act can only be
dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is
dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam
and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second
marriage by a convert would therefore be in violation of the Act and as such void in terms of
Section 494 IPC.

Any act which is in violation of mandatory provisions of law is per se void. The real reason for
the voidness of the second marriage is the subsisting of the first marriage which is not dissolved
even by the conversion of the husband. It would be giving a go-by to the substance of the matter
and acting against the spirit of the statute if the second marriage of the convert is held to be
legal.

The Sarla Mudgal ruling was looked with disfavour in certain circles on the ground that it
infringed a persons fundamental right to freedom of conscience and profession of religion
guaranteed by Article 25 of the Constitution. The matter was brought before the Supreme Court
which dismissed the idea. In Lily Thomas v Union of India29 a Hindu wife files a complaint for
the offence under S.494 of IPC on the ground that during the subsistence of the marriage, her

29 (2000) 6 SCC 227.

24
BIGAMOUS MARIAGE IS A VOID MARRIAGE

husband had married a second wife under some other religion after converting to that religion,
the offence of Bigamy pleaded by her would have to be investigated and tired in accordance with
the provisions of the Hindu Marriage Act.it is in this Act that it has to be seen whether the
husband, who has married a second wife, has committed an offence of Bigamy or not. Since
under Hindu Marriage Act, bigamous Marriage is prohibited and has been constituted as an
offence under S.17 of the Act, any marriage solemnized by the husband during subsistence of
that marriage, in spite of his conversion to another religion, would be an offence triable under
S.17 of the Hindu Marriage Act reads withS.494, IPC.

Since taking of cognizance of the offence under S. 494 is limited to the compliant made by the
person specified in S.198 of Cr.P.C, it is obvious that the compliant would have decided in terms
of personal law applicable to the complainant and the respondent (accused) as mere conversion
does not dissolve the marriage automatically and they continue to be husband and wife.
Change of religion does not dissolve the marriage performed under Hindu Marriage Act between
two Hindus.

Apostasy does not bring to an end the civil obligation or the matrimonial bond, but apostasy is a
ground for divorce under S.13 as also the ground for judicial separation under S.10 of Hindu
Marriage Act. Religion is a matter of faith stemming from the depth of the heart and the mind.
Religion faith or devotion are not easily interchangeable. If a person feign to adopt another
religion just for some wordly gain or benefit, it would be religious bigotry. Looked at from the
angle, a person who mocking adopted another religion where plurality of marriage is permitted
so as to renounce the previous marriage and desert the wife, he cannot be permitted to take
advantage of his exploitation, as religion is not commodity to be exploited. The institution, under
Hindu Law, Marriage is a sacrament. Both have to be preserved.

Chapter VI:

i. Bigamy as a Ground for Divorce:

This ground is available to both the husband and wife for getting divorce. According to S.13(1)
of Hindu Marriage Act bigamy(adultery) is considered as a valid ground for divorce provides

25
BIGAMOUS MARIAGE IS A VOID MARRIAGE

that has, after the solemnization of the marriage, had a voluntary sexual intercourse with any
person other than his or her spouse. The first wife / husband can file suit under S.17 of Hindu
Marriage Act for the punishment of Bigamy in addition to that the person can also file a suit for
grant of divorce under S.13 of the Act on the ground that the other spouse is having extra marital
affairs. The provisions for divorce under Section 13, HMA also provide for the remedy available
to the second wife. Section 13 (2) (i) of HMA says that in cases of marriages before
commencement of this Act, a second wife can seek divorce on the ground that her husband's first
wife was alive at the time of the solemnization of the second marriage. In Sm. Susama Singh vs
Sri Sailendra Nath Singh30 court held adultery (bigamy) and desertion as a ground for divorce.

Conversion is also a valid ground for divorce under S.13(ii) of HMA a person converting his
religion after marriage is not accepted by the Hindu Marriage Act . Now a days people are
converting their religion for the sake of second marriage and not dissolving the first marriage. In
Suresh Babu vs V.P. Leela31, a husband converted to Islam and the wife filed petition for divorce
on this ground. Apostasy is also considered as a valid ground for dissolution of marriage by
Delhi High Court in a recent case reports that Ones religious faith is above any law, the High
Court has ruled while granting divorce to a girl who converted to Islam for marriage and then
reconverted to her original religion.

If the condition provided under S. 5 of HMA is not satisfied then if the marriage becomes
voidable it can be annulled. Annulment refers only to making a voidable marriage null; if the
marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is
required to establish this. According to S.5(i) If either spouse was still legally married to another
person at the time of the marriage then the marriage is void and no formal annulment is
necessary.

ii. Bigamy as a Ground for Maintenance:

Under Hindu Women's Rights to Separate Residence and Maintenance Act, 1946, a Hindu
married woman was entitled to maintenance if her husband contracted another marriage provided
30 AIR 1961 Cal 373.

31 AIR 2007 (NOC) 285 (Ker).

26
BIGAMOUS MARIAGE IS A VOID MARRIAGE

this happened before the commencement of that Act. However, Section 18, HAMA provides that
a Hindu wife can claim maintenance from her husband on the basis of the aforementioned
grounds amongst several others irrespective of the time when he contracted the other marriage
(before or after 1956). Accordingly, a wife can claim maintenance from her husband even after
she abandoned him when she comes to know that her husband has another wife living. The
phrase 'any other wife living has been interpreted variously by the different High Courts. In
Satyanarayana v. Sseetheramama32 , the A.P. High Court held that 'wife living' meant existing
or alive and not necessarily living with the husband. However, a subsequent decision of the
Madras High Court on the other hand in Annamalai Mudaliar v Perunayee Ammal33 , said that
'wife living' necessarily meant living with the husband. The Bombay High Court dissented from
the decision of the Madras High Court, in Mani Bai v. Mukundrao , holding that under Section
18 of HAMA, the second wife can also claim a separate residence and maintenance under this
Act.

Even though the law for the interim maintenance under Section 24, HMA does not categorically
provide for maintenance for second wife, the Section has been given a very wide interpretation
by the courts to bring the cases of second wives within its ambit. The second can also claim
interim maintenance under the interpretation given to Section 24, HMA. In Laxmibai v. Ayodhya
Prasad34 , it was held that 'wife' and 'husband' used in Section 24, HMA are not to be given strict
literal meaning as to convey only legally married wife and husband. The expression wife and
husband is in the context of the section and scheme of the Act should mean a person claiming to
be a wife or a husband.

Similarly, under section 25, HMA the provisions for permanent alimony has also been
interpreted widely by the courts to protect the rights of the second wives. After the declaration of
the nullity of the marriage, the second wife could claim maintenance under section 25, HMA. It
was held in Rajesh Bai v. Shantabai35 , that a woman whose marriage is void because of the
existence of another wife is entitled to maintenance under this Section. The second wife can
claim interim maintenance under Section 20 of the Hindu Adoption and Maintenance Act, 1956

32 AIR 1997 AP 720.

33 AIR 1965 Mad 139.

34 AIR 1991 MP 47.

35 AIR 1982 Bom 231.

27
BIGAMOUS MARIAGE IS A VOID MARRIAGE

(HAMA). In Kulwant Kaur alias Preeti v. Prem Nath , it was also said 'no sane lady would
surrender herself unless she treats her male companian as her husband- whether the marriage is
proved or not that is the point to be determined by the trial Court itself- but keeping in view the
fact that the petitioner cohabited with the respondent, interim maintenance under Section 20,
HAMA is allowed to her'.

Succession and Inheritance of property:

As per Hindu code, only the first wife is a legal heir of the husband while the second
wife is not entitled to any share in the ancestral estate and, if the husband has died without
leaving a will, even in his self-acquired property. Once the second marriage is declared null and
void, the wife concerned cannot even claim maintenance as a matter of right. The high court of
Bombay at Goa has held that the first wife is entitled to half the share while the share of the
second wife in the property of the husband is 1/8th. While ruling that a second wife marrying in
good faith has a share in the estate of her husband. The court ruled that in such cases the first
wife gets half the share, the second wife is entitled to 1/8th of the share and the remaining 3/8th
is to be shared among the children from both marriages.

The Supreme Court has ruled that children born out of wedlock have the right to inherit their
fathers ancestral property.In Revanasiddappa vs Mallikarjun36 case , Justices G.S. Singhvi and
A.K. Ganguly ruled that children from a second wife had rights to their fathers ancestral
property.

Chapter VII:

36 (2011) 11 SCC 1.

28
BIGAMOUS MARIAGE IS A VOID MARRIAGE

i. Bigamy is not applicable to Tribal People:


The anti-bigamy provisions of the Indian Penal Code would not apply also to tribal men and
women if their customary law and practice does not treat their plural marriages as void. It has
been judicially affirmed that Section 494 of the Indian Penal Code will not apply to members of
Scheduled Tribes unless the tribal law applicable to a case treats a bigamous marriage as void.
Surajmani Stella Kujur (Dr.) v Durga Charan Hansdah37tribes will be ruled only on tribal law
if it is not clear then only other law can be applicable, at first tribal law should be satisfied.

Chapter VIII:
i. Conclusion:
On doing this project I come to a conclusion or it can be said in other way my opinion on this
subject matter is that law relating to Bigamous marriage is not up to the standard there are many
flaw on its parts though it is considered the bigamous marriage is a void marriage people still
continue it in the society reason behind it is that the law is not so strong it has many loophole
through which people get escaped. As there is a way of marrying more than four wives at the
same time in Muslim personal law non- Muslim married men take this as an advantage and
converting themselves into Muslim for sake of marrying second time without dissolving the first
marriage. The Law Commission Report 227 has remarked this immoral activities of converting
the religion for the sake of second marriage to make it as an offence under S. 17A of Hindu
Marriage Act and to make offence of Bigamy under Indian Penal Code as an cognizable. This
law should come in force and control the rate of Bigamy in India both among Muslim and
Hindus.

BIBLIOGRAPHY

1. Website referred:

i. www.indiankanoon.com
ii. www.lawindia.com
iii. www.legalaid.com
iv. www.lawandsociety.in
37 AIR 2001 SC 938.

29
BIGAMOUS MARIAGE IS A VOID MARRIAGE

v. www.google.com

2. Articles referred:

i. Law Commission Report -227 The text of this Report is available on the
Internet at: http://www.lawcommissionofindia.nic.in

ii. Bigamy in India published by Law and Society on Tuesday, July 12, 2011.
http://legalgensis.blogspot.in/2011/07/bigamy-laws-in-india-frequently-
asked.html

iii. Grounds for Divorce published by Legal Service India.


http://www.legalserviceindia.com/helpline/grounds_for_divorce.htm

iv. Rights Of Second Wife with reference to bigamous marriage in India


http://www.legalservicesindia.com/articles/rfs.htm

3. Books referred:

i. Prof.G.C.V. Subba Rao Family Law In India, 10th edition, 2014, S.Gogina &
Company, Hyderbad.
ii. Prof. Kusum, Family Law Lectures Family Law I, 3rd edition, 2013, Lexis
Nexis, Gurgaon.
iii. Maynes Hindu Law & Usage, 14th edn.,1998, p.155, Bharat Law House, New
Delhi.

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