Bigamy and the Punishments the Act Imposes

Conversion does not cure it

The commonest way a second marriage is attempted is by conversion, and the Supreme Court has closed it.

Sarla Mudgal v. Union of India, AIR 1995 SC 1531, decided on 10 May 1995.

Facts. Four petitions under Article 32. In the lead case Meena Mathur had married Jitender Mathur in 1978 and they had three children. In early 1988 she learned that her husband had gone through a second marriage with another woman, both of them having converted to Islam first. The husband's position was that, having embraced Islam, he could have four wives, notwithstanding that his first wife remained a Hindu. In a companion petition the second wife complained that she was now maintained by nobody and protected by neither personal law.

Held. Under Hindu personal law as it stood before the codification of 1955, a Hindu marriage continued to subsist even after one spouse converted to Islam; there was no automatic dissolution, and to allow a convert to dissolve the marriage by adopting a new personal law would destroy the existing rights of the spouse who remains Hindu. The position is no better for the apostate after the 1955 Act, because a marriage can be dissolved only by a decree of divorce on a ground in section 13, and one of those grounds is precisely that the other party has ceased to be a Hindu by conversion. It follows that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of the penal provision, and he is guilty of bigamy. The Court distinguished the Privy Council's decision in Attorney General for Ceylon. Both judges went on to urge the Government to move towards a uniform civil code, and to consider legislation providing that a person who changes religion may not marry again without first divorcing.

Why it matters here. The reasoning is worth reproducing because it is short and it is complete. Conversion gives the other spouse a ground of divorce; it does not dissolve anything by itself. Until a decree is passed the convert is still married. A second marriage while still married is void and bigamous. That is the whole answer, and it is also one of the two or three judgments always cited on the Uniform Civil Code, taken again in the Uniform Civil Code chapter of Module IV.

The penal provisions as they now stand

The Bharatiya Nyaya Sanhita 2023 came into force on 1 July 2024, except for one sub-section not relevant here, and replaced the Indian Penal Code 1860.

Section 82(1), which replaces section 494 of the Penal Code: 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.

The Exception to section 82(1) preserves the two familiar escapes. The sub-section does not extend to a person whose marriage with the earlier spouse has been declared void by a Court of competent jurisdiction; nor to a person who contracts a marriage during the life of a former spouse where that spouse has been continually absent for seven years and has not been heard of as being alive within that time, provided the person contracting the subsequent marriage informs the other party of the real state of facts so far as it is within his or her knowledge before the marriage takes place.

That proviso is worth pausing on beside section 13(1)(vii). Seven years of absence gives a ground of divorce under the Hindu Marriage Act, and gives a defence to bigamy under the Sanhita only if the facts were disclosed to the new spouse.

Section 82(2), which replaces section 495: whoever commits the offence under sub-section (1) having concealed from the person with whom the subsequent marriage is contracted the fact of the former marriage shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine.

Section 83, which replaces section 496: whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married knowing that he is not thereby lawfully married, is punishable with imprisonment which may extend to seven years and a fine. This catches the person who stages a marriage that is no marriage, which is a different wrong from bigamy.

Section 81, replacing section 493, punishes a man who by deceit causes a woman who is not lawfully married to him to believe that she is, and to cohabit with him in that belief.

Section 18: the other conditions

Section 18 punishes a person who procures a marriage of himself or herself to be solemnized under the Act in contravention of the conditions in clauses (iii), (iv) and (v) of section 5.

Clause (iii), the age condition. Rigorous imprisonment which may extend to two years, or fine which may extend to one lakh rupees, or both.

Clause (iv) or (v), prohibited relationship or sapinda. Simple imprisonment which may extend to one month, or fine which may extend to one thousand rupees, or both.

Two observations that earn marks.

The punishments are wildly out of proportion to each other, and in the opposite direction to the civil consequences. A sapinda marriage is void and carries a month and a thousand rupees. An underage marriage is valid under this Act and carries two years and a lakh. The explanation is historical: the age penalty was raised when the law on child marriage was strengthened, and the older penalty for the prohibited degrees was left where it stood.

The offence is committed by the person who procures his or her own marriage. Section 18 punishes the parties, not the priest or the parents. Those are reached, for a child marriage, by sections 10 and 11 of the Prohibition of Child Marriage Act 2006.

Clause (i), a spouse living, is not in section 18 at all, because it is dealt with by section 17 and the Sanhita.

Section 30, and the sections around it

Section 30 is repealed. It was the repealing section of the Act itself and was repealed by the Repealing and Amending Act. The number is dead and is noted here so a reader who reaches the end of the Act knows nothing is missing.

Section 29 saves several things and one of them belongs in this chapter. Section 29(1) provides that a marriage solemnized between Hindus before the commencement of the Act, otherwise valid, shall not be deemed invalid or ever to have been invalid by reason only that the parties belonged to the same gotra or pravara, or to different religions, castes or sub-divisions of the same caste.

That is the statutory end of gotra exogamy and of caste as a bar to a Hindu marriage, and it should be read with [Religious Ritual and the Rules of Marriage]. Section 29(2) preserves any right recognised by custom or conferred by a special enactment to obtain the dissolution of a Hindu marriage, which is how customary divorce survives in the communities that had it.

A worked example

Vijay married Sudha under Hindu rites in 2015. In 2022 he converted to Islam and went through a nikah with Farida. Sudha remains a Hindu. She prosecutes him and also wants relief in the matrimonial court. At the trial the only evidence of the second marriage is that Vijay and Farida live together and call each other husband and wife.

Is the second marriage valid? No. On Sarla Mudgal v. Union of India, conversion to Islam does not dissolve a Hindu marriage. Vijay is still married to Sudha, so section 17 makes the second marriage void, and the penal provisions apply.

Will the prosecution succeed on this evidence? Probably not. On Bhaurao Shankar Lokhande v. State of Maharashtra the prosecution must prove that the second marriage was solemnized with the proper ceremonies; cohabitation and reputation are not enough.

Under which provision is he charged? Section 82(1) of the Bharatiya Nyaya Sanhita 2023, seven years and fine; and if he concealed the first marriage from Farida, section 82(2), ten years and fine.

What relief has Sudha in the matrimonial court? Divorce under section 13(1)(ii), that he has ceased to be a Hindu by conversion; and if she prefers, judicial separation on the same ground under section 10.

Suppose instead Vijay had married a woman within the prohibited degrees. That is section 5(iv), the marriage is void under section 11, and section 18(b) punishes him with simple imprisonment up to one month, or a fine up to one thousand rupees, or both.

And if his bride had been seventeen? Section 18(a): rigorous imprisonment up to two years, or a fine up to one lakh rupees, or both, and the marriage is not void under section 11.

What it does NOT mean

Section 17 does not create the offence. It makes the second marriage void and applies the penal law to it.

A second marriage is not proved by living together. The ceremonies of the second marriage must be proved, which is what Bhaurao Lokhande decides and why most prosecutions fail.

Conversion does not dissolve the first marriage. On Sarla Mudgal it gives the other spouse a ground of divorce; the convert remains married, which is why the second marriage is bigamous.

Section 18 does not affect validity. It punishes breach of the age, prohibited-degree and sapinda conditions; the effect on validity is in sections 11 and 12.

A marriage under the age condition is not void. Section 11 does not include section 5(iii).

The penal provisions are no longer in the Penal Code. They are sections 82(1) and 82(2) of the Bharatiya Nyaya Sanhita 2023.

Quick revision

• s.17: any marriage between two Hindus solemnized after the commencement of the Act is void if at its date either party had a husband or wife living, and the penal law applies accordingly.
• Proof: a prosecution must prove the ceremonies of the second marriage; Bhaurao Shankar Lokhande v. State of Maharashtra is the authority, and it is why most such prosecutions fail.
• Sarla Mudgal v. Union of India: conversion to Islam does not dissolve a Hindu marriage; it gives the other spouse a ground of divorce under s.13(1)(ii), so the convert's second marriage is void and bigamous.
• The penal law now: s.82(1) of the Bharatiya Nyaya Sanhita 2023, seven years and fine; s.82(2), where the first marriage is concealed from the person married, ten years and fine. The exceptions are a decree of nullity and seven years' unexplained absence coupled with disclosure to the person married.
• s.18: punishment for contravening the conditions of s.5: clause (a) for the age condition, two years' rigorous imprisonment or a fine up to one lakh rupees or both; clause (b) for the sapinda and prohibited-degree conditions, one month or a fine up to one thousand rupees or both.
• s.30: the repeal section, which carries the savings.

Test yourself

1. What is the effect of a second marriage during the subsistence of the first? By section 17 it is void, and the provisions of the penal law apply. The offence is now punishable under section 82 of the Bharatiya Nyaya Sanhita 2023.

2. Why do bigamy prosecutions often fail? Because the prosecution must prove that the second marriage was solemnized with the proper ceremonies, and mere cohabitation or a public declaration is not enough. Bhaurao Shankar Lokhande v. State of Maharashtra is the leading authority.

3. Does conversion to Islam dissolve a Hindu marriage? No. On Sarla Mudgal v. Union of India the first marriage continues; the conversion gives the other spouse a ground of divorce under section 13(1)(ii), and a second marriage contracted by the convert while the first subsists is void and bigamous.

4. What does section 18 punish? A breach of the conditions in section 5. Contravention of the age condition in section 5(iii) is punishable with rigorous imprisonment up to two years, or a fine up to one lakh rupees, or both; contravention of the sapinda condition in section 5(v) or of the prohibited-degrees condition in section 5(iv) is punishable with simple imprisonment up to one month, or a fine up to one thousand rupees, or both.