This Article has been authored by Aagam Jain, a second-year law student at National Law School of India University, Bangalore.

Introduction

In India, different personal laws regulate marriages for different communities. These personal laws deal with various attributes of a family. Bigamy is regulated for different communities by their respective personal laws. Bigamous Marriages for Hindus are regulated by the Hindu Marriage Act (‘HMA’) of 1955. The Hindu Marriage act seeks to do away with bigamy by putting a blanket ban on it and criminalising its practice. However, one can’t ignore the fact that polygamous arrangements among Hindus still persists in a variety of ways.

It has been observed that women bear the brunt of this practice while men easily escape liability because of the shortcomings of the law. Complete equality of sexes is hardly possible in a legal system which permits polygamy and a social system which tolerates it. The first part of the article briefly outlines the history and position of Bigamy in Hindu law. In the second part, the gaps in the Hindu Marriage Laws have been discussed that allow the offenders to escape liability. The last part of the article discusses the abrogation of woman’s rights arising out of Bigamy and suggests policy changes to remedy the situation.

Bigamy Under Hindu Law

Bigamy among Hindus was not forbidden before the Hindu Marriage Act, 1955 (“HMA”). Hindu men were always allowed to indulge in polygamy while women do not appear to have had this right.[1]Hindu Marriage Act attempted to abolish this patriarchal practice. However, the ground reality remains the same and Hindu men still indulge in bigamy.[2]There is a need to introduce nuanced provisions to address this issue.

Bigamy is prohibited under Section 5 read with Section 11 of the Hindu Marriage Act. These sections provide that any marriage solemnised between two parties is void if either party has a spouse living at the time of marriage. However, the marriage can only be declared void if a party presents a petition. This position is detrimental to women because women do not generally take the recourse of law because of the fear of social stigma that might be attached to her.

Bigamy is criminalised under Section 17, HMA read with Section 494 and 495 of Indian Penal Code, 1860 (“IPC”). Even though bigamy is criminalised in India, the offenders often get acquitted because of the vague burden of proof of bigamy. Since the anti-bigamy provisions in the IPC are non-cognizable, most offenders remain unpunished. The offenders also to use devices, supposed to be ‘legal’, to escape the provisions of IPC. For instance, non-marital cohabitation, holding defective and incomplete ceremonies, fake change of religion are some examples by which the husbands tend to escape liability.[3]To strictly enforce the rule of law, it is imperative that the statutes reflect the social realities of the society.

The women are at the receiving end of society’s disapproval of bigamy and the court should be careful while pronouncing such judgments. The judges need to be conscious of the impact of their decisions on the disadvantaged party.[4]Various recommendations have been made by the Law Commission regarding this but no action has been taken to incorporate those recommendations into statutes. It is important to incorporate these recommendations into law to protect the disadvantaged group.

Proof of a Bigamous Marriage:

Essential Ceremonies for Valid Marriage:

Conducting the essential ceremonies is an important part of solemnising a marriage. In the Hindu religion, there are numerous communities that have a different procedure of solemnising a marriage. As provided in Section 7, HMA, the legislation permits a Hindu marriage to be solemnised in accordance with the customs of the either party involved.

The insistence of courts on observing the widely acceptable ceremonies leads to judicial overreach. The landmark judgement on this issue is Bhaurao Shankar Lokhande v. State of Maharashtra.[5] In this case, the couple did not recognise the ceremony of invocation before the sacred fire and Saptapadi, rather, they conducted the Gandharva form of marriage. The Supreme Court held that the marriage was invalid because the essential ceremonies were not conducted. This position of court is directly in violation of Section 7(i), HMA which clearly states that the marriages solemnised with customary rites would be valid. The vaguely worded provision provide power to the judges to interpret it according to their biases.

To address this issue, it is imperative to revise Section 7 of the Hindu Marriage Act. Sub section (ii) of this section discern a particular ceremony from the customs provided in sub section (i) of the provision. The recognition given to the ceremonies of sacred fire and Saptapadi have been misconstrued by the judges to include them as an essential condition of most Hindu marriages. It makes it difficult for the parties to prove otherwise and establish a particular practice as a valid custom. Thus, changing Section 7(ii) with a section recognising the practices of all Hindu communities might provide the necessary aid to this problem. Recognising only the widespread and prevalent ceremonies is detrimental to the customs and traditions of the minority communities that the Hindu personal law seeks to protect.

It is important to note that the heavy reliance placed by the courts in cases on bigamy lead to the neglect of socio-economic conditions of the women. The loopholes in the law of bigamy need to be addressed to curb the acquittal of the possible bigamists. It is important to place reliance on the legislative intention of lawmakers to effectively adjudicate on such issues. These issues will be dealt with in the later section.

Intention as a proof of a valid marriage:

The ingredients for proof of bigamy were laid down in the case of Pashaura Singh v. State of Punjab. The four tests were:

· The Accused must have been married before.

· The accused must have been married again.

· The first marriage must be subsisting.

· The first spouse must be living.

It is clear from the elements listed above that intention is not a necessary for the offence of bigamy to be committed. This position of law is disadvantageous to the second wife because the reliance on ‘conducting the ceremonies’ makes the second marriage invalid even if the man intended to marry again. The courts do allocate primacy to the technicalities of marriage rather than the intention of the contracting parties.

In Kanwal Ram v. Himachal Pradesh Administration, even when the husband admitted to marrying again during the subsistence of a previous marriage, the court insisted on the proof of conduction of valid ceremonies. The husband’s intention was disregarded and he was acquitted.While the offence of bigamy was introduced to protect the rights of women and curb matrimonial injuries that this practise entails, the judiciary has deviated from this objective to exonerate the accused.

To rectify the situations that could arise because of the textual interpretation of personal law provisions, a change in legislation is needed. Including ‘intention to marry again’ as a sufficient clause in Section 17, HMA could address the issue regarding proof of second marriage. It is important to include intention as a ground for bigamy because the second marriages are generally performed clandestinely. The ceremonies are attended only by the people close to the bride and groom. These marriages are not performed with all the ceremonies because of the fear of social ridicule. Hence, it becomes imperative in such cases that the intention is gauged to determine the legality of the marriage.

The effect of the shortcomings of the law has been discussed in the next section.

Effect of Bigamy on Rights of Women

Practice of bigamy has had uneven effect on men and women because of the patriarchal construct of the society. polygyny is still prevalent in many communities. Moreover, where polygyny is considered a privilege and right of a man, polyandry in the patrilineal setting far from being a privilege, is an obligation for a woman to allow sexual access to the rightful share.

The Hindu Marriage Act limits the remedies available to women in cases of bigamy. In Priya Bala Ghosh v. Suresh Chandra Ghoshthe Supreme Court ruled that the responsibility of proving the second wedding is on the claimant, i.e. the first wife. The husband was acquitted in the instant case and the wife did not get any compensation. As mentioned earlier, the second marriages generally take place clandestinely and expecting the wife for proof of such marriage is absurd. The Supreme Court ground down the rituals of a pluralistic society in a notion of uniformity that lead to exploitation of women.

The Hindu Marriage Act does not adequately represent the rights of the second wife in cases of bigamy. The courts have ignored the rights of the second wife in cases of bigamy because of the inability of proving the second marriage as valid. If the second marriage is not considered to be valid according to the courts, the second wife is not entitled to any support unless the husband and wife had been cohabiting for a long time.

The stance of the courts has changed over the course of litigation on this topic. In Kulwant Kaur v. Prem Nath, the second wife was granted interim relief when the courts were determining the legality of the marriage. Even though the courts have changed their stance over the issue of bigamy, women still suffer because of the gaps in the law.Where a marriage is invalidated, it is upon the discretion of the judge to grant relief to the second wife of the accused. A judge might not be amenable to the social realities in arriving at the decision. To address this issue, it is imperative to add a provision in The Hindu Adoption and Marriage Act where relief or maintenance be granted to the women who suffered from the marriage. The judicial attitude towards cases of bigamy can only be changed by a reform in the procedural as well as the substantive law.

In judgements such as Savitaben Somabhai Bhatiya v. State of Gujarat the court has taken the view that the second wife is not entitled to maintenance under Section 25, HMA. The court said that they cannot increase the scope of the provisions by introducing a woman not lawfully married in the expression ‘wife’. An oft invoked legal ploy is to term the woman the domestic maid, a mistress or a ‘keep’, and not the wife with rights, status and entitlements.

Silences and gaps in the statutes need to be filled so as curb the judicial overreach in such matters. In case of bigamy, provisions related to inheritance rights of the second wife, legitimacy of the children born out of invalid marriages should be introduced to protect the rights of the women and children being subjected to the vice of bigamy.

Conclusion

This article tries to analyse the efficacy of the laws regulating Bigamy among Hindus. Despite there being a ban on Bigamous Hindu Marriages, they are prevalent in India and the law has proved to be ineffective to address this issue. The court’s interpretation of the provisions of laws relating to bigamy has been purposelessly strict and a reform in the law is necessitated to stop the practice of bigamy. The judges have been oblivious to the perils of women and reinforcing the patriarchal construct of the society by allowing the offenders take advantage of gaps in the laws.

To protect the rights of women, the courts need to adopt a liberal interpretation regarding the ceremonies of a valid marriage. The second marriage might not satisfy all the rituals required for a valid marriage but the intention of the husband might be to contract a second marriage. The interpretation adopted by the courts coupled with the silences and gaps of the law works to the disadvantage of the aggrieved party, which is generally the wife in cases of bigamy. It is thus imperative that necessary changes be made in the law to embody the realities of the society.