Author: Vinisha Jethwani, fourth year law student at Indian Institute of Legal Studies
In a contemporary society marriage is considered as an individual’s private affair, but it is a social institution having complex dimensions. Marriage are two different beliefs when compared to both Hindu and Muslim law.
Hindu law considers marriage as a sacrament which is “dhramavidhi” in Hindi. Hindu marriage is “a religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social and spiritual need of dharma, procreation and sexual pleasure.” It is a bond between man and a woman not only for sexual pleasure or procreation of children, it’s a bond of social bonding (families, friends etc…), love (spiritual love), duties, responsibilities and an enduring bond of a husband and wife till life and death. It is a religious and a holy union of a man and a women with religious rites and ceremony.
Whereas, in Muslim law marriage is a social contract for procreation and legitimation of children between a man and a woman.
I. What is bigamy?
In simple words bigamy means a second marriage of a man, without the first marriage getting dissolved. In Hindu law it is considered illegal and punishable offence and the same under IPC.
II. Why is bigamy illegal?
Bigamy is illegal mostly in the aspect of Hindu law and not in Muslim law. Bigamy goes against the natural law that is Hindu law the nature of Hindu Law itself says that Hindu marriage is a sacrament where as in Muslim law is a contract to legitimating and procreation. According to Shia and Sunni law Muslim men are allowed to get married four times without getting divorced but for the fifth marriage Muslim men need to dissolve one of the four marriage and so on. But the Supreme Court goes against it and so does the Indian Penal Code section 494.
Landmark judgements of bigamy:
• Sarla Mudgal v Union of India, AIR 1995 SC 1531
• Nagalingam v. Sivagami, (2001) 7 SCC 487
• Bhaurao Shankar Lokhande’s case
Detailed explanation of bigamy under Hindu law, Muslim law, and IPC Section 494.
The basic purpose of the research is awareness and a better understanding to those people who need help and support. This research has a detailed analysis of all the pros and cons of bigamy and marriage with comparison of Hindu law, Muslim law and the IPC section 494.
Muslim Law or Islamic Law is the law which is originated from the divine and not man-made laws, which are governed by the law-makers. Islam signifies submission to the will of God and means peace, purity, salvation, and obedience. Muslims believe that there is only one God, Allah. Muslim Law has its own primary and secondary sources. The primary sources of Muslim Law are the Quran, Sunnat, Ijma, and Qiyas. The secondary sources are judicial decisions, legislation, and customs.[i]
Hindu Marriage Act was enacted in 1955 by the Parliament of India. Three other acts were passed under the Hindu Code Bills during this time which are the Hindu Succession Act, the Hindu Minority and Guardianship Act, the Hindu Adoptions and Maintenance Act. Hindu Marriage Act was amended and codified for the belief of the Hindus and their rites. Hindu Marriage is a sacrament bond between a man and a woman who are bound in a physical, social and spiritual need of dharma, procreation and sexual pleasure.[ii]
Though bigamy is illegal and a punishable offense. But has anyone given a thought about how bigamy came into existence or the origin of bigamy? What were the laws that were followed when bigamy came into existence, was it a part of only Muslim law or Hindu law or both. What was the need for bigamy or the impact of bigamy in India? Why was it practiced?
We all know the simple definition of bigamy “more than one wife of a man/second marriage of a man without the first marriage getting dissolved” but do you know what is the impact of bigamy or how it affects the marriage or how it becomes a part of a beings life.
There are many questions and many will be answered, but first of all, we need to have a clear concept regarding the origin of bigamy.
Bigamy has been apart from the Vedic times. The Hindus followed “manusmriti” which is an ancient legal text among the many Dharmaśāstras of Hinduism. So according to “manusmriti” the main source of the Hindu Marriage Act 1955 it was believed that any woman/ married woman, a wife, who is barren, diseased, or vicious that she could be superseded, a second marriage was valid for the man. No matter what, the first wife will be considered and recognized as the wife of the man and the other wives. In simple terms, the other wives are considered to be superior concubines. Similarly, the firstborn son of the first wife is considered as the heir of the man. The sole owner of the rights and property of the father. Then the other children/sons will come under consideration.
History of bigamy
During the Vedic times, not only bigamy was legal but also polygamy. Things started to change after the amendment of the Hindu Marriage Act 1955 where bigamy was considered Illegal and it became a punishable offense according to IPC section 494.
Bigamy under Muslim Personal Law.
As known or seen it is believed that Muslim men have the right to get married four times without their previous marriage getting dissolved but for the fifth marriage a Muslim man has to dissolve one of his marriages to get married the fifth time. If a Muslim man cannot keep the peace between his co-wives or maintain them before he contracts a bigamous marriage his marriage will be considered void and not justifiable. There is this rule in Muslim Law that the women who are married to a man agree to him on a bigamous marriage only if he can full fill the condition of their marriage contract, the marriage contract should not be hampered.
Bigamy has been a part of Hindu and Muslim law but due to change in times bigamy has become illegal. Bigamy has some social and judicial trends.
Socially bigamy has been mostly abolished in the Muslim country with its judicial point of view. The religious leaders are not ready to accept change in the form of legislative aspect.
From the judicial point of view is that the courts of India look down upon a bigamous marriage and provides all kinds of relief to the first wives. The Supreme Court of India has held provision under section 125 of the Code of Criminal Procedure 1973 which allows separate maintenance to the wives on the ground of cruelty and bigamous marriage. In the case of Khatoon v. Yamin AIR 1982 SC 583[iii] in this particular case, it so happened that the appellant had gone to the village to attend a marriage and there she received a letter from a husband to return home or he would give her a divorce, it was a threat letter to the appellant to return home. The facts were misjudged and the court of the district magistrate and the high court refused to give maintenance to the appellant under section 125 of Cr. PC. Later when the Sessions judge got an awareness of the facts it was fully in favor of the appellant and she had a valid reason not to live with her husband, the high court had erred its decision and restored the order of maintenance given by the Sessions judge. And the appellant was entitled to rupee 500 per cost.
In another case, the Supreme Court has criticized the practice of bigamy and said that there is no difference between a second wife and a concubine. This is descriptively explained in the case of Begum Sabhanu v. Abdul Ghafoor. AIR 1987 SC 1103.
Laws that prohibit/against bigamy
Section 494 of the Indian Penal Code says that any man or woman marrying for the second time during the life of their partner then the second marriage will be considered void and a punishable offense up to seven years of imprisonment and fine or both. Without the first marriage getting dissolved with valid reasons.[iv]
Bigamy is not only a part of the Hindu or Muslim law. Bigamy is practiced by conversion of the religion also, which in Muslim law this kind of marriage void and if married it will automatically get dissolved. Mostly this is done by Muslim women, but this rule is not applicable in India. Bigamy by conversion by Muslim women in India is commonly practiced. But according to Islamic Law, it is considered a fraud and can have no recognition in bigamy.
The courts have been trying to control bigamy by conversion and there are some cases to be referred to as how bigamy by conversion is not valid and going against the norms. In the case of Vilayat Raj v. Sunila AIR 1983[v], Delhi 351 Justice Leela Seth of Delhi High Court decided that this act of conversion will be applied to the person who was a Hindu at the time of the marriage despite his conversion to Islam and he could seek divorce under the act.
In another case of P Nagesashayya (1988), Mat LR 123 Justice Bhaskar Rao of Andhra Pradesh High Court[vi] criticized the bigamy in conversion and considered it to be an unhealthy practice and it was observed that the motive behind conversion could not be questioned so the decision came up was that the old case’s judgment was to be reversed in the cases mostly of conversion for bigamy. There were similar observations done in other cases too B Chandra Manikyamma v B. Sudarsana Rao alias Saleem Mohammed, 1988 CriLJ 1849.
There is this leading case in which conversion for bigamy was considered Illegal and the marriage would be considered void and a punishable offense. Smt. Sarla Mudgal v Union of India (1995) 3 SCC 635[vii] in this case the Supreme Court decided that bigamous marriage is considered as void and a punishable offense.
And similarly, for Hindu law, if anything such is done it will also be considered as a punishable offense and will go against the natural law, equity, justice, and good conscience.
Landmark judgments of Bigamy
The constitution of India has given all the right to practice and believe all kinds of religion and also the conversion of religions. But to some extent, this religious conversion has been misused to satisfy their needs which are against natural justice and also good conscience. Though the conversion has been criticized and is given some legislative norms to follow. But some countries follow their personal law and follow bigamy but are against polygamy. Bigamy has now become a punishable offense under section 494 of IPC[viii].
Few landmark cases give us a clear idea of why bigamy by conversion is wrong and how it should be scrutinized. And not only bigamy by conversion but bigamy itself, in both Hindu and Muslim law.
Sarla Mudgal & Ors. v. Union of India: Facts of the case
Four petitions were filed under article 32 of the constitution. Firstly there was a writ petition which consisted of two petitioners. Sarla Mugdal, the president of the registered society called Kalyani a non-profit organization that was for the welfare of needy families and distressed women. The second petitioner was Meena Mathur who was married to Jitendra Mathur and they had three children in their marriage. So, the petitioner 2 (Meena Mathur) found out that her husband was involved in a second marriage with Sunita Narula also known as Fatima. Their marriage took place after both Jitendar and Sunita converted themselves to Islam. The second petitioner also said that her husband had converted to Islam only to get married to Sunita avoiding Section 494 IPC, but the respondent said that after conversion he can get married to four women irrespective of his first wife and she being a Hindu.
Another writ petition was filed by Sunita Narula also known as Fatima. She said that after conversion she got married and had a child out of the same marriage. However, in 1988 the respondent said that he would convert himself to Hinduism and take care/maintain of Meena Mathur which the respondent did in the influence of Meena Mathur itself and left her without dissolving the marriage and without any maintenance given to her also without the protection of the personal laws and her continuing to be Muslim.
Thirdly, there was a writ petition filed, by the petitioner Geeta Rani who was married to Pradeep Kumar in 1988 under Hindu rites. Later the petitioner Geeta Rani discovered that her husband had converted himself to Islam to marry another woman named Deepa. The petitioner also mentioned that the conversion had the sole purpose of getting married for the second time.
Lastly, a civil writ petition was filed by Susmita Gosh who was married to G.C. Gosh according to Hindu Rites in 1984. Later in 1992 the respondent her husband asked for a mutual divorce because he did not want to live with her. Furthermore, inquires it was known that he was converted to Islam and wanted to marry Vinita Gupta, the petitioner in her writ petition prayed that her husband/respondent should be restrained from entering into a second marriage.
Judgments to this case.
The court said that marriage takes palace under the Hindu Marriage Act 1955 and the marriage gives both the parties a different status and if one of the parties dissolve the marriage by adopting different laws/personal law then it would destroy the rights of the marriage. Any marriage which takes place under the Hindu Marriage Act then it should be dissolved by the same act and not the other personal laws. And if the Hindu Marriage act is not followed for the dissolving of the marriage then neither of the party can marry again.
- And if anything such is done against the Hindu Marriage Act then the marriage would be considered as violative of justice, equity, and good conscience.
- The court, further said that the apostate husband will be considered guilty under section 494 of IPC. Furthermore, the word void had a different meaning in Hindu Marriage Act and the IPC. In Hindu Marriage Act the word void means that the act done by conversion will lead to a ground of divorce and it will not be considered as a void marriage, whereas in IPC void means that the second marriage will be considered as void.
- Lastly, the court said that it is a necessity to follow the UCC uniform civil code in the Indian Legal System, That Indians need to stop trespassing the other personal laws. The court also directed the secretary of the ministry of law to file an affidavit for the steps taken by the government for securing the UCC for the citizens of India.
In simple words, the judgment says that without dissolving the first marriage the second marriage will be considered void. The term void here is based on The Hindu Marriage Act 1955 which means it will be considered as a ground for divorce. Whereas, the term void will be considered as no legal effect under Indian Penal Code section 494.