(1) The offence known as ‘bigamy’ is conferred when a man having a spouse or wife living, (2) marries in any case in which marriage is void, (3) by reason of it taking place during the life of such husband or wife. Such person is punishable with imprisonment of either description upto seven years and fine. (Section 494)
Bigamy in General
The Chapter on Offences relating to Marriage under the Indian Penal Code
of 1860 contains two provisions relating to bigamy – the first of these
applicable to married persons marrying again without concealing from the
second spouse the fact of the first marriage, and the second to those who do
so by keeping the second spouse in the dark about the first marriage. Section
494 of the Code reads as:-
“Whoever having a husband or wife living, marries regardless in which such marriage is void by reason of its occurring amid the life of such spouse or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and should likewise be at risk 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, 12
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.”
Proof of Bigamy:
The following facts constitute the ingredients of the offence of bigamy punishable under Section 494, I.P.C., which must be proved to establish the said offence. It must be proved:
(1) That the accused was married to some person; proof of actual marriage is always necessary;
(2) That the person to whom the accused was married was alive on the date of the second marriage;
(3) That proof of the celebration of the second marriage must be in the same manner as that of the first; and
(4) That the second marriage was void because it took place during the lifetime of the first spouse, that is the husband or the wife, as the case may be, to whom the accused was first married.
For prosecution for bigamy one must show first of all that at the time of the second marriage, there was first valid subsisting marriage; where proof of either marriage is unsatisfactory, there ought to be no conviction.
It cannot be argued that because the wording of Section 494 is in the singular; it only refers to the marriage by a husband or a wife whose wife or husband is living at the time of the second marriage.
Therefore, where both the parties to the second marriage had their previous spouses living at the time of the second marriage, both of them could file complaints separately and the same second marriage between both of them will have to be treated as resulting in two separate offences of bigamy; one offence in respect of each of them.
If the former marriage is concealed from the person with whom the subsequent marriage is gone through, the offence is aggravated and imprisonment may extend upto ten years in addition to fine (Section 495).