Bigamy is a scenario in which one individual, legally married, enters into a second marriage agreement with another individual without dissolving the first marriage. A person needs to cease first marriage before marrying again, either by death, annulment, or divorce. If a second marriage takes place before the first marriage ends, the state can charge the person with bigamy.
Since long time, married males whose personal law does not permit bigamous marriage have been making use of the unhealthy and unethical ways of converting to Islam for the sake of contracting a second bigamous marriage under a perception that such conversion allows them to marry once again without getting their first marriage ceased.
ELEMENTS OF BIGAMY
The following factors are essential to prove bigamy:
- The Accused must be married
- He must have contracted Second Marriage
- The first marriage should exist
- The first husband/wife must be alive
- Both marriages must have accomplished necessary ceremonies and must be valid.
BIAGMY IN INDIA
In India, bigamy is an offence in opposition to marriage and it is also considered as criminal offence under Indian Penal laws. The bigamy laws are relevant to Hindus, Jains, Buddhists, Sikhs, Parsis, Christians. Bigamy is one of the grounds to get divorce under Hindu Marriage Act 1955. The second wife is entitled for maintenance, but not for property rights. In August 2009, the Law Commission of India declared that bigamy should be made a cognizable offence. Bigamy is declared unlawful under Section 494 of the Indian Penal Code. The law explains that, any person in the lifespan of their existing husband or wife marries someone else, such marriage by reason of its taking place during the lifetime of such husband or wife, should be contemplated ceased and should be penalized for such offence. If any person marries more than once during the life of first husband or wife should be penalized with imprisonment which may extend to seven years, and shall also be liable to fine.
BIGAMY & HINDU LAW OF SUCCESSION
As per Hindu Law, only the first wife is a legal heir of the husband while the second wife is not authorized to any share in the inherited property and, if the husband has died without leaving a will, even in his self-obtained property. Once the second marriage is announced null and invalid, the wife cannot even profess maintenance as a matter of right. The high court of Bombay at Goa has held that the first wife is authorized to half the allocation while the share of the second wife in the property of the husband is 1/8th. While ruling that a second wife marrying with honest intention has a share in the estate of her husband. The court ruled that in such cases the first wife gets half the allocation, the second wife is authorized to 1/8th of the allocation and the remaining 3/8th is to be divided among the children from both marriages.
LEGAL RIGHTS FOR THE SECOND WIFE
1. PROPERTY RIGHTS OF THE SECOND WIFE
The second wife does not maintain any rights that usually the first wife has with her. The second wife does not have right to her spouse’s property besides such marriage is valid under special cases provide in Section 494 of Indian Penal Code.
2. PROPERTY RIGHTS OF THE CHILDREN BORN FROM SECOND MARRIAGE
Section 16 of the Hindu Marriage Act states that any child, who would have been authorized if the marriage would have been valid, shall be legitimate. Therefore any child born out of invalid marriage is legitimate and thus share equal rights in the property of their father/mother. This law is also applicable to children born out of live-in relationship.
TRENDS IN SENTENCING
The courts in India are forced to discharge the accused in case of bigamous marriages as there is a ambiguity in the law that in case of bigamous marriage the victim has to prove that the accused was already married and he married again during the lifetime of his/her first spouse without getting the first marriage ceased. It is very difficult to prove such cases as the victim generally takes the plea that all the essential ceremonies are not executed e.g. in case a person (Hindu) already married and has his spouse living, intentionally keeps a mistake in the marriage ceremonies like not performing the seventh step (in the saptapadi), he can easily come out from the ambiguity of being made accused on the charge of bigamy, but nowadays the courts are changing their views.
In one of the cases, Bombay High Court held that in case of bigamous marriages the accused can be punished if there is other promising evidence which establishes the charge.
PUNISHMENT FOR ABETMENT OF BIGAMOUS MARRIAGE
Any person supporting Bigamous marriages shall be punishable under Section 494 of Indian Penal Code read with Section 109 of Indian Penal Code. A priest, who takes charge of a bigamous marriage, would be an abettor, but, the mere attendance of persons at such a marriage would not necessarily account for abetment. Similarly, giving accommodation in the house for bigamous marriage, would not per se amount to abetment.
The exercise of marrying outside marriages is a gender-neutral practice. Nonetheless, due to the fact that bigamy is the offense in question, it is far essential to enforce a uniform civil code as encouraged by the Malimath Committee, in order to curb the offense of bigamy.
However, it is accurate to say that Bigamy is a totally extreme offence and the mindset of various courts is not lenient. In maximum of the cases the Supreme Court and High courts awarded intense punishments to the accused. It is really hard to believe that why such a provision has been allowed to remain the offence non- cognizable since it virtually impacts our social system, where it is hard for a woman or her relatives to file a complaint against the husband. Therefore, it is vital for the woman to take recourse to law to seek remedies and to put in force their rights.