This blog mainly deals with the meaning of bigamy or polygamy and its provisions, punishments and, loopholes in various Personal Laws and the Indian Penal Code. Later, it contains a detailed analysis of the case of Smt. Sarla Mudgal, President, Kalyani & Ors. Vs. Union of India & Ors.[1]
INTRODUCTION
A legally acknowledged partnership of two people as partners in a personal connection, or a legally permitted contract between two persons, is referred to as marriage. Monogamy is thus a historical rule that is accepted by legal systems all across the world. Violations of this fundamental precept, known as bigamy or polygamy, are illegal. The author of this post looks at India’s bigamy law and its ramifications.
Hindu Marriage Act, 1955[2]
“Under Section 5(i) of the Hindu Marriage Act, 1955, two Hindus can get together which means marry only when “neither party has a spouse living at the time of the marriage.”[3] All marriages solemnized after the enactment of this act, that is, in violation of Section 5(i), are declared void under Section 11. In accordance with Sections 494 and 495 of the IPC, Section 17 provides for the punishment of bigamy. Ajay Chandrakar v. Ushabai[4] had the facts as to the first wife’s petition regarding the second marriage to declare it as null and void was denied, and based on the fact that the husband started the second marriage while the first marriage was still intact, the court found that the second wife, the party to the next marriage, would be given Section 11 relief.”
Muslim Personal Law (Shariat) Application Act, 1937[5]
A husband can only have four wives, according to Muslim marriage law. In India, Muslim polygamy is still practiced. In the presence of the validity of his prior marriage, a Muslim male is authorized to marry again, according to Muslim Personal Law. The Quran’s Chapter 4 establishes the legitimacy of polygamy. Muslim polygamy is practiced in most countries without the agreement of the wife.
Indian Penal Code, 1860
Bigamy means more than one marriage is illegal under Section 494[6] of the Indian Penal Code, which is based on the lines of English law. This section makes it illegal for both men and women, regardless of faith, with the exception of male Muslims. Male Muslims are granted polygamy under Muhammadan Law, and they can have up to four wives. As a result, this provision applies to a Muslim man who marries a fifth woman while supporting four previous marriages. Furthermore, all four marriages must be conducted according to Islamic law. If a marriage is performed under the Special Marriage Act of 1954, a subsequent wedding is declared null and void, and the groom is charged with bigamy. In addition, the exacerbated form of bigamy is covered by section 495[7] of the IPC. If a person marries a second time while hiding the truth of the first marriage from the person who made the next marriage, the fines can include up to 10 years in prison and fines in each category.
CASE ANALYSIS
FACTS
“Four petitions under Article 32 of the Constitution of India were submitted to the Supreme Court and heard together. First, in a written petition 1079/89 with two petitioners. Petitioner 1 was Sarla Mudgal, chairman of a legal entity called Kalyani, a non-profit organization specializing in the welfare of needy families and needy women. Applicant 2 has been married to Jitender Mathur since 1978, and she was Meena Matur, who had three illegitimate children. Petitioner 2 found that both had converted to Islam after her husband married another woman, also known as Fathima. She claims that her husband’s conversion to Islam was only to marry Sunita, thereby avoiding section 494 of the IPC. Defendants claim that he can have four wives after he converts to Islam, regardless of the fact that his first wife is still Hindu. Another petition was filed by Sunita Narula aka Fathima, registered as Writ Petition 347/1990, claiming that she and the defendant had converted to Islam to marry and had an illegitimate child. However, in 1988, under the influence of Mina Matur, the defendant returned to Hinduism and promised to support his first wife and three children. She wasn’t supported because she remains a Muslim She was from her husband and was not protected by any of the personnel laws.
Third, a petition registered as Writ Petition 424/1992 was submitted to the Apex Court. According to Hindu rituals, petitioner Zitarani married Pradeep Kumar in 1988. The petitioner discovered in December 1991 that her spouse had converted to Islam and married another woman, Deepa. She states that the conversion to Islam was only to enable her second marriage. The petitioner discovered in December 1991 that her spouse had converted to Islam and married another woman, Deepa. She states that the conversion to Islam was only to enable her second marriage. Finally, Sushmita Ghosh, the petitioner of Civil Writ Petition 509/1992, is G.C. I got married. Gauche according to the 1984 Hindu ritual. In 1992 her husband i.e the respondent asked her to agree to her mutually agreed divorce because he no longer wanted to live with her. The petitioner was shocked and when she asked him further, he admitted that he had done it. He will convert to Islam and marry Vinita Gupta. In her petition, she prayed that her husband could not get married for the second time.”
ISSUES
- Whether a Hindu husband married under Hindu Law, by embracing Islam can solemnize a second marriage?
- Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage as the first wife continues to be a Hindu?
- Whether the apostate husband would be guilty of the offense under Section 494 of the IPC?”
JUDGMENT
“Both parties are given certain rights and status in marrying under the Hindu Marriage Act of 1955, and if either party permits the dissolution of the marriage through the enactment and enactment of a new personal law, the rest. The rights of a Hindu spouse are as follows: I was in danger. Only the circumstances described in Section 13 of the Act may lead to the cancellation of a marriage signed under the Act. Neither can be remarried until this is complete. As a result, the second marriage of an apostate to his Hindu wife who was legally married to him would be illegal.
Then, the court stated that the apostate’s spouse would be prosecuted under Article 494 of the Indian Penal Code. The Hindu Marriage Act of 1955 and the Indian Penal Code use the terms “void” and “voidable” differently. Conversion to Islam and remarriage do not end the previous Hindu marriage, but they do result in divorce under the law. As detailed in the previous section, the elements of Section 494 suggest that the second marriage is invalid and that the apostate husband is liable under the IPC. Ultimately, the court ruled that the Indian legal system required the passage of the Uniform Civil Code (UCC), thereby preventing Indians from infringing on each other’s personal rights. The court also ordered the Government of India to issue an affidavit through the Secretary of Justice and the Ministry of Justice explaining the attempt to obtain a UCC for the Indian people.”
DISSENTING OPINION
There was no decision to disagree with the reason for the decision. That is, the second marriage after conversion to Islam is invalid and will be punished under the IPC, but the previous marriage contracted under the Hindu Marriage Act of 1955 will not be invalid. Judge RM Sahai disagreed with the dictum of the Supreme Court’s decision to encourage the implementation of UCC in the Indian legal system to avoid disputes. It was suggested that the government should establish a committee to develop a “Conversion of Faith Act” to prevent it from being abused by religion.
CONCLUSION
Bigamy does exist in societies where it is legal. The Hindu, Parsi, and Christian personal laws, for example, provide punishments for bigamy, but the Muslim Personal Law has no such prohibition. There are still a few gaps that need to be filled. The rights and responsibilities of people in a live-in relationship are not mentioned in the laws for bigamy. Married males in live-in relationships benefit as a result of this, and the person’s wife has nothing to prove against him. Despite this, the practice of bigamy has declined significantly in recent years, and the future looks promising.
Author(s) Name: Parnika Agarwal (Symbiosis Law School, Noida)
References:
[1] AIR 1995 SC 1531
[2] Hindu Marriage Act (1955).
[3] Hindu Marriage Act § 5 (1955).
[4] Indian Penal Code (1860).
[5] Muslim Personal Law (Shariat) Application Act (1937).
[6] Indian Penal Code § 494 (1860).
[7] Indian Penal Code § 495 (1860).
