on bigamy

Section 494, Penal Code, 1860 (IPC S. 494)

The offence of bigamy or marrying again during lifetime of husband or wife is punishable under Section 494 of the Penal Code (S. 494) and under Section 17 of the Hindu Marriage Act, 1955.

The Sections reads as:

Penal Code, 1860

Section 494. Marrying again during lifetime of husband or wife.— 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 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.

Hindu Marriage Act, 1955

Section 17. Punishment of bigamy.— Any marriage between two Hindus (including Buddhist, Jaina or Sikh) 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 (45 of 1860) shall apply accordingly.

Classification of Offence

The offence of Bigamy is non-cognizable (except in State of Andhra Pradesh). Also, the offence is bailable (except in the State of Andhra Pradesh).

Cases

Ingredients of offence of Bigamy

For an offence of bigamy to have been committed the following ingredients are required (i) the accused must have contracted first marriage (ii) he/she must have married again (iii) the first marriage must be subsisting (that is no divorce has taken place) (iv) the first spouse must be living, Pashaura Singh v. State of Punjab, (2010) 11 SCC 749

Who can file complaint?

Only a person aggrieved by his or her spouse contracting the second marriage can file the complaint. In the case of the husband, only the husband, except where he is serving in the Armed Forces and cannot get leave to file the complaint.

In the case of the wife, she herself or her father, mother, brother, sister, son or daughter or her father's or mother's brother or sister, or with the leave of the Court any other person related to her by blood, marriage or adoption.

- Section 198 Criminal Procedure Code

Proof of Bigamy

To prove the offence of Bigamy, the prosecution must prove that the second marriage was valid, S. Nagalingam v. Sivagami, (2001) 7 SCC 487.

Compoundable Offence

The offence is compoundable with the consent of the wife and permission of the court, Parameswari v. Vennila, (2000) 10 SCC 348.

Departmental Enquiry

Even if a person is acquitted in a criminal case for bigamy a departmental enquiry can be conducted against him/her, State of Karnataka v. T. Venkataramanappa, (1996) 6 SCC 455.

Limitation

There is no limitation period for taking cognizance of the offence of bigamy. [That is, it does not matter how long ago the second marriage was contracted, the criminal process can be started]. M. Saravana Porselvi v. A.R. Chandrashekar, (2008) 11 SCC 520.

Ex-parte (One sided) decree of divorce

When a person having got an ex-parte (one sided) divorce from a court marries a second time and the first wife manages to get the ex-parte divorce overturned, the person cannot be prosecuted for bigamy since at the time of the second marriage, he was divorced, Krishna Gopal Divedi v. Prabha Divedi, (2002) 10 SCC 216.

Who can be punished?

The Kerala High Court has held that Section 494 IPC does not discriminate between Hindu/Muslim/Christian and can be proceeded against any citizen who commits the offence of bigamy irrespective of his/her personal law, provided that ingredients of Section 494 are made out. Venugopal K. v. Union of India, 2015 SCC OnLine Ker 798.

Success Wrong and Recurring Wrongs - Cause of Action

Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765 : 2008 SCC OnLine SC 1235 at page 649

4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A "continuing wrong" refers to a single wrongful act which causes a continuing injury. "Recurring/successive wrongs" are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [AIR 1959 SC 798] explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963): (AIR p. 807, para 31)

"31. … It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."

Probate Not Necessary - Mandatory

This issue relating to the applicability of the requirements of a will in respect of movable properties has been considered in the following cases and the courts have come to the conclusion that the same provisions relating to will regarding immovable properties are applicable in the case of movable properties also.

(1) In Bhaiya Ji v. Jageshwar Dayal Bajpai, AIR 1978 All 268, the issue was relating to a sum of Rs. 11,000 which the plaintiff claimed on the basis of a will and the question considered by the court was whether a probate or succession certificate was required to be obtained by the plaintiff before obtaining a decree in their favour. Relying on the provisions

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of sections 213 and 57 of the Indian Succession Act, the court held that in the instant case no probate of the will was required.

(2) In Ruprao v. Ramrao, AIR 1952 Nag 88, again the issue was regarding need for a probate of a will bequeathing arrears of maintenance due to the deceased. In this case also the provisions of sections 57 and 213 of the Act were examined and the court held that there was no need for a probate of the will.

(3) In Ramchand Ganeshdas v. Sardara Singh, AIR 1962 Punj 382, the court held-that no probate was necessary in order to set up a claim regarding property either movable or immovable on the basis of a will executed in Punjab.

In Ravinder Nath Agarwal v. Yogender Nath Agarwal, (2021) 15 SCC 282, the Supreme Court has held the following

37. Therefore, what follows is that : (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) unless the will is made or some of the properties covered by the will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a will to seek probate or letters of administration. In fact, the decision in Balbir Singh Wasu [Balbir Singh Wasu v. Lakhbir Singh, (2005) 12 SCC 503] did not take note of the bar under Section 264(2) when it opined in general terms in para 5 of the judgment that : (SCC pp. 504-05)

"5. … We do not read Section 213 as prohibiting the executor from applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213."

(emphasis supplied)

36. A cumulative reading of Sections 57, 213 and 264 would show : (i) that a person claiming to be an executor or legatee under a will cannot rely upon the will, in any proceeding before a court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the will annexed, if such a will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration vests only in courts located within the towns of Calcutta, Madras or Bombay and the courts in any local area notified by the State Government in the Official Gazette.

38. By virtue of Section 213(2)(i) read with clauses (a) and (b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a will, is applicable only to wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.

Further it is explained by Supreme Court of India Clarence Pais v. Union of India, (2001) 4 SCC 325 that:

6… A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct

Precedential value of the case depends on context and facts

Precedents 

2006 1 SCC 368

2002 3 SCC 533

2003 1 SCC 289

Judgments not be read as Euclids theorem  

2003 11 SCC 584

2015 10 SCC 161

2016 3 SCC 762 

Every Offence is distinct and separate FIR is permissible

Narinderjit Singh Sahni v. Union of India, (2002) 2 SCC 210 : 2001 SCC OnLine SC 1233 at page 239

60. As regards the issue of a single offence, we are afraid that the fact situation of the matters under consideration would not permit to lend any credence to such a submission. Each individual deposit agreement shall have to be treated as a separate and individual transaction brought about by the allurement of the financial companies, since the parties are different, the amount of deposit is different as also the period for which the deposit was effected. It has all the characteristics of independent transactions and we do not see any compelling reason to hold it otherwise. The plea as raised also cannot have our concurrence.

Right to Legal Recourse

This Court in Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan [(1997) 11 SCC 121] reiterated the oft-noted phraseology that judicial review is a basic structure of the Constitution and every citizen has a fundamental right to redress the perceived legal injury through judicial process. This Court went on to record:

"… the Constitutional Court, therefore, has a constitutional duty as a sentinel on the qui vive to enforce the right of a citizen when he approaches the court for perceived legal injury, provided he establishes that he has a right to remedy.…"

orders cannot be explained or supplemented by affidavit

 In Commsr of Police v. Gordhandas Bhanji , AIR 1952 SC 16, the Hon'ble Supreme Court has held

9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of the Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

 

 In OPTO Circuits (India) Ltd. v. Axis Bank, (2021) 6 SCC 707 , the Hon'ble Supreme Court has reiterated the said law:

12. The action sought to be sustained should be with reference to the ontents of the impugned order/communication and the same cannot be justified by improving the same through the contention raised in the objection statement or affidavit filed before the Court. This has been succinctly laid down by this Court in Mohinder Singh Gill v. Chief Election Commr. [Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405] as follows : (SCC p. 417, para 8)

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police v. Gordhandas Bhanji, 1951 SCC 1088] : (SCC p. 1095, para 9)

'9. … public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.'

Orders are not like old wine becoming better as they grow older."

  Further, it has been held that "…When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records. [Paragraph 24, Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627]