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At first sight, there appears to have been a violent clash of tradition and modernity over bigamy
and it would appear that modernity has decisively won it. In India Post-colonial Hindu law
abolished bigamy by statute in 1955 and appears to follow modern principles and legal models.
However, triumphant modernist declarations of legal and moral victory in this field cannot
ignore the fact that in social reality bigamous arrangements of various kinds remain operative
among Hindus and are legally condoned in a variety of ways. Here bigamy is reflective of pre-
modern barbarism and monogamy symbolizes civilisation, enlightenment, modernity and
progress. Hindu tradition represents cultural evidence of permission for Hindu men to engage in
numerically unlimited polygamy, while Hindu women appear to have no such right. It was
deemed essential, in the view of modernists, that Hindu bigamy should be completely outlawed.
It was certainly easier to prohibit polygamy for men than to allow polyandry for women, and
human rights arguments were used to justify the formal abolition of Hindu polygamy. This paper
seek to understand the underlying principle of bigamy and it being one of the ground of getting
divorce under various different Acts; and also to dig upon a little the flaws present in the various
acts which gives room to bigamy sans right to the second wife and its consequences. However,
modernity also stands for free choice and individual discretion. Since both men and women all
over the world are known to engage in various forms of sexual relations outside the formal
framework of marriage, despite numerous taboos and prohibition. Is it really desirable that the
state should aim to exercise full control over this field?

The colonial law of India, certainly as far as the general law and Christian and Parsi personal law
are concerned, responded to Christian and modernist challenges by asking the government for
the legal abolition and criminalization of polygamy for their communities.
A similar process can
be observed under the Hindu law reforms during 1955-56. The only pocket of resistance in
Indian law today concerns continued official condonation for Muslim polygamy, as an alleged
traditional religious right of Muslim men to have up to four wives at the same time continues to
be respected by the post-colonial Indian legislature. Bigamy is not a ground of divorce under
Muslim Law
. Towards the end of the colonial period, however, indigenous reform movements,
influenced by Christian views on polygamy among Hindus. While various local Acts were
promulgated during the 1940s, bigamy was finally banned for Hindus by the HMA of 1955 and
was a criminal offence under the existing relevant provisions of the IPC of 1860. The outcome of
cautious judicial intervention, which appears to have been purposefully hidden from view owing
to the politicization of the debates over polygamy.
The Hindu law on polygamy has thus moved

According to Parsi Marriage and Divorce Act,1865 and Indian Christian Marriage Act,1872
Werner F. Menski, Hindu Law Beyond Tradition and Modernity, Second Impression 2009, Oxford India Paperbacks
Sarla Mudgal v. union of India AIR 1995 SC 1531
beyond condoning tradition as well as blind adherence to modernist axioms of formal abolition.
It now lies in a condition of postmodernity, drawing from, and yet ultimately discarding, both
positions to maintain justice in a heavily contested field.
Hindu Law on Bigamy: Also under British reign
Traditional Hindu law permitted polygamy to men in certain situations and on certain grounds.
In this Hindu Law is similar to Islamic law in approach as well as to Chinese law and African
laws all of which tolerate polygamy to certain extent. Muslim invaders were to a large extent
blamed for bringing in bigamy in India. The basic framework of British legal policy as laid
down in 1772 by the Warren Hastings Regulation, effectively guaranteed Hindus and Muslims
non-interference by the British in matters of family laws. Polygamy was treated as a matter of
marriage law and fell within the ambit of religion and local social regulation under the personal
law. Hindu polygamy was protected under the system of legal administration, while attention
was given to other perceived social problems, such as the abolition of sati, or permitting widow
remarriage, despite traditional Hindu reservations, through the Hindu Widows Remarriage Act,
In Jeebodhan v. Sindhoo
and Sitanath v. Haimbutty
, the husband had married a second time,
but this was not treated by the court as cruelty against the first wife. In Dular Koer v. Dwarka
, a
Hindu husband had introduced a low-caste mistress as a concubine into a matrimonial house, to
live as a member of the family. The wife was then driven out of the house, which the Calcutta
High Court treated as cruelty. Thus in those times cruelty played a role and not bigamy in the
society. Similar was in the case of Joseph v. Joseph
and Itwari v. Asghari.

The Hindu Married Womans Right to Separate Residence and Maintenance Act of 1946, which
became a law on 23 April 1946.
Under this Act one of the grounds for a Hindu wife to ask for a
separate residence and maintenance from her husband was if the husband had married again, or
kept a concubine in the house. This was considered to be bigamous. Bombay Prevention of
Hindu Bigamous Marriages Act, 1946 and the Madras Hindu (Bigamy Prevention and Divorce)
Act, 1949 provided improvements in marital life of Hindu women. The Bombay Hindu
Divorce Act of 1947 permitted a Hindu wife to petition for divorce on the ground of husband
committing bigamy.

Jeebodhan v. Sindhoo (1872) 17 WR 522
5 Sitanath v. Haimbutty (1875) 24 WR 377
6 Dular Koer v. Dwarka (1907) 34 Cal 971
7 Joseph v. Joseph AIR 1934 Pat 475
8 Itwari v. Asghari AIR 1960 All 684
Now part of HAMA, 1956
Statutory Regulation of Hindu Polygamy
Bigamy is a post nuptial matrimonial offence. It provides grounds for divorce of an existing
marriage, annulment of a subsequent marriage and charging the spouse for committing a criminal
offence under a legal system which recognizes monogamy only. For the purposes of criminal
offence, bigamy has been defined in section 494 of the Indian Penal Code
The Indian Divorce Act, 1869, does not give any definition of bigamy. Instead of that definition
the act provides us with two definitions, viz., bigamy with adultery and marriage with another
woman but there is nothing like a third definition on marriage with another woman with

The Hindu Marriage Act, 1955, under Section 13 provides:
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce
on the ground
(i) in the case of any marriage solemnized before the commencement of this Act, that the
husband had married again before such commencement or that any other wife of the husband
married before such commencement was alive at the time of the solemnization of the marriage of
the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition.
It is provided by this section that if a man had married more wives than one before the Hindu
Marriage Act came into force, then every wife was given a right to seek divorce from the
husband on the ground of is pre- Act remarriage: the first wife on the plea that her husband
married again during her lifetime and the second wife on the plea that her husband married her
when he already possessed a wife.
In cases for polygamy this ground may be a double edged
sword for the intermediate wives.
There is a condition to the filing of a petition for divorce on this ground- the other wife must be
alive at the time of the petition. Here what is meant is not the physical existence but her social
existence as a wife of the respondent. The zero hour for the grant of petition under the act is the
time of instituting the petition and not that of passing the decree. Therefore, if the other wife dies
after the petition, the decree may be granted. Again both the wives simultaneously or one after
the other can petition for divorce, or even if the husband has filed a petition for divorce against
one wife, the other wife may apply for divorce against him.
And even if the wife dies or has

Paras Diwan, Family Law, Seventh Edition 2005, Allahabad Law Agency
Leela v. Rao Anand Singh, A.I.R 1963 Raj 178
P.C. Pant, Law of Marriage, Divorce and other matrimonial disputes, third edition 2003, Orient Publishing
obtained divorce or is divorced, the other wife is also entitled to divorce provided the petition
was filed before the eventuality.
This may sometimes cause difficulty to the husband, he may
have to lose both wives. Still the court is bound to enforce this provision because the language is
quite plain.

What makes the rule defective is not the difficulty it may cause but the anomaly it has. On the
one hand a petition for divorce is barred if no other wife is alive due to death or divorce, and on
the other hand, if once a petition is made, the death or divorce of the other wife does not bar the
decreeing of divorce. The loss of the other wife even after the petition should be a bar to the
decreeing of divorce.
The petition on this ground cannot be rejected on the plea that the petitioner knew of the first
marriage or that she has presumably condoned the husband by living with him along with the
other wife.
The relief of divorce cannot be refused on the plea that the second marriage was
with the consent of the first wife or there has been an agreement before the act with the petitioner
wife (whether she is the first or the second one) not to object to the other marriage.
As a general rule
Section 17 of The Hindu Marriage Act provides for Punishment of bigamy. It reads as any
marriage between two Hindus 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 (45 of 1860) Code shall apply accordingly.

Meaning of solemnize
Prima facie the expression whoever marries must mean whoever married validly or
whoever marries and whose marriage is a valid one. If the marriage is not a valid one,
according to the law applicable to the parties, no question of it being void by reason of its taking
place during the life of the husband or the wife of the person marrying arises. The marriage
between two Hindus is void in view of section 17nif two conditions are satisfied:
(i) The marriage is solemnized after the commencement of the act.
(ii) At the date of such marriage, either party had a living spouse.
According to the Shorter Oxford Dictionary, the word solemnize means, in connection with a
marriage, to celebrate the marriage with proper ceremonies and due form. The Supreme Court
in Bhaurao Shankar Lokhande v State of Maharastra
held that If the marriage is not a valid

Mandul Naganna v. Lachmi Bai, A.I.R 1963 AP 82
Venkatamma v. Patel Venkataswamy, A.I.R 1963 Mys 118
Deepo v. Keher Singh, A.I.R. 1962 Punj 183
A.I.R 1965 S.C. 1564
one, according to the law applicable to the parties, no question of its being void by reason of its
taking place during the life of the husband or wife of the person marrying arises.
In the case of Shrinivasa Aiyar v. Saraswathi Ammal
, the husband had claimed that it was
necessary for Hindus to have a son so that spiritual debts could be redeemed. Thus he should be
allowed to have one more wife. Court rejected his petition.
Also in Ram Prasad v. State of UP
, it also unsuccessfully challenged the provisions of HMA
restricting bigamy as unconstitutional, and as an infringement of the fundamental rights of
Hindus to freedom of religion.
In a later decision in Kanwal Ram v. Himachal Pradesh Administration
the Supreme Court held
that in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies
constituting it must be proved.
The Supreme Court in Baburaos case
extracted a passage from Mulla
which is to the
following effect:
there are two ceremonies essential to the validity of a marriage, whether the marriage be in the
brahma form or the asura form, namely-
1) Invocation before the sacred fire, and
2) Saptapadi that is, taking of seven steps by the bridegroom and the bride jointly before the
sacred fire.
Where these two essentials are absent in a case, the marriage in dispute is not a marriage in the
proper form and hence it has to be held that the marriage has not been solemnized. In Empress
v. Kallu
and Morris v. Miller
, it has been held that admission of marriage by the accused is
not evidence of it for the purpose of proving marriage in a bigamy or adultery case.

Any wife of the polygamous married husband may sue provided at the time of the filing
of the petition, at least, one or more wife is alive
. It is obvious that ground will be
available if both the marriages are valid
. Under this clause, both the wives may sue for
divorce, since requirement is that at the time of the presentation of the petition, the other

AIR 1952 Bom 84
AIR 1957 All 411
(1996) 1 S.C.J. 210
(1966) 1 M.L.J. (S.C.) 92
Mulla, Hindu Law, 21
edition 2010 Lexis Nexis
(1882) I.L.R. 5 All 233
4 Burr. 2057 : E.R. 73
Kanwal Ram v. Himachal Pradesh Administration, (1996) 1 S.C.J. 210
Venkatamma v. Venkataswami, AIR 1963 Mys 118
Mandal v. Lachmi, AIR 1963 AP 82
wife should be alive
. Since the ground relates to the policy of monogamy, the husband
will not be allowed to plead any conduct or disability of the wife-petitioner so as to bar
Thus, any compromise which first wife might have entered with the husband at
the second marriage or any of her conduct or disability
, or any plea of estoppel
be pleaded in defence of her petition for divorce. It appears that no bar under Section 23,
HMA, can be pleaded against her petition
. However, it has been held that petition may
be defeated on the ground of improper delay
Section 17 of The Hindu Marriage Act makes it absolutely clear that the provision has to be read
in harmony and conjunction with the provisions of section 494 of the Indian Penal Code and that
if the marriage is void its voidness would not only lead to the civil consequences arising from
such marriage but instead the provisions of section 494 and 495 will apply accordingly. In other
words though the marriage may be void under section 17 by reason of the fact that it was
contracted while the first marriage was subsisting, the case squarely falls within the four corners
of section 494 of the Indian Penal Code and by contracting the second marriage the accused
incurs the penalty imposed by the said statute.

The Supreme Court in Gopal Lal v. State of Rajasthan
remarked that the voidness of the
marriage under Section 17 of The Hindu Marriage Act is in fact one of the essential ingredients
of Section 494 because the second marriage will become void only because of the provisions of
Section 17 of The Hindu Marriage Act.
I would appear, however, that a Hindu wife could seek divorce on the ground of the husbands
adultery under Section 13(1)(i) of the HMA and thus has such a remedy, at least under the
Marriage Laws (Amendment) Act of 1976. HMA has no retrospective effect, so where both
marriages of a Hindu husband were solemnised prior to 18 May 1955, either wife might petition
for divorce, but the husband would not be liable to the penalties stipulated under Section 17 of
the HMA.
Despite tough rhetoric in Gopal Lal v. State of Rajasthan
, the courts have no focused on heavy
criminalization of Hindu polygamy, with a maximum penalty of seven years rigorous
imprisonment. In Gopal Las, it was held, dismissing the husbands appeal but treating him in
effect leniently. In State of Bombay v. Narasu Appa Mali
, a bigamous Hindu husband had

Leela v. Anant Singh
Nirma v. Nikkaswami, AIR 1963 Del 260
Lali Thamma v. Kanna, AIR 1965 Mys 178
Jawant v. Lal Singh. 1969 PLR 178
Nirma v. Nkkaswami, AIR 1968 Delhi 260
Laxmi v. Alagiriswami, AIR 1975 Mad 211
Gopal Lal v. State of Rajasthan, A.I.R. 1979 S.C. 713
AIR 1979 SC 713
AIR 1952 Bom 84
appealed against his prosecution under the Bombay Prevention of Hindu Bigamous Marriages
Act of 1946. Hindu husbands faced with a prosecution for bigamy would now simple try to argue
that the marriage rituals they had performed did not result in a legally valid Hindu marriage.
In Rabindranath Dutta v. The State
, a first wife complained that her husband had married a
second woman and should be punished. The husband claimed that he had never validly married
the first wife, but had been sentenced to rigorous imprisonment for three months by the lower
court, hence his appeal. Section 494 of the IPC was held.

Mere conversion does not dissolve the marriage automatically
Since under the Hindu Marriage Act, a bigamous marriage has been prohibited and has been
considered as an offence under section 17 of the Act, any marriage solemnized by the husband
during the subsistence of that marriage in spite of his conversion to another religion, would be an
offence triable under section 17 of the Hindu Marriage Act read with section 494 of IPC. Change
of religion does not dissolve the marriage performed under the Hindu Marriage Act between two
Hindus automatically and they continue to be husband and wife.
Apostasy does not bring to
an end the civil obligations or the matrimonial bond
, but apostasy is a ground for divorce under
section 13 of the Hindu Marriage Act. Mere conversion does not end the marital ties unless a
decree for divorce on that ground is obtained from the court.

Special Marriage Act 1954, In case of foreign marriage under section 19(1) of this act any
person whose marriage is solemnized or deemed to have been solemnized under this Act and
who, during the subsistence of his marriage, contracts any other marriage in India shall be
subject to the penalties provided in Sections 494 and 495 of IPC and such marriage shall be void.
Jammu and Kashmir State Ranbir Penal Code, 1989 says that any marriage between two
Hindus 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 shall apply

Muslim Law as per Kuran
Muslim marriage is a polygamous marriage limited to four wives. A Muslim male has capacity
to keep four wives simultaneously. But if a Sunni male takes five or more wives, his marriage
with the fifth wife or subsequent wives is not void but merely irregular.

AIR 1969 Cal 55
Lily Thomas v. Union of India, (2006) 6 S.C.C. 224
ILR (1948) 2 Cal. 119
Lily Thomas v. Union of India, (2006) 6 S.C.C. 224
The Parsi Marriage and Divorce Act, 1936
Section 5 says that every Parsi who during the lifetime of his or her wife or husband, whether a
Parsi or not, contracts a marriage without having been lawfully divorced from such wife or
husband, or without his or her marriage with such wife or husband having been declared null and
void or dissolved, shall be subjected to penalties provided in Section 494 and 495 of the Indian
Penal code for the offence committed.
Under Christian Law, the Divorce Act 1869
Contains provision regarding the dissolution of marriage and according to the section 10 of the
Act husband is entitled to the dissolution of marriage on the ground of adultery only but however
the wife can sue for divorce under the ground of adultery only if it is accompanied with some
other ground of matrimonial dispute. One of the grounds being Bigamy with adultery.

Under section 19(4) of the Act, that the former husband or wife of either party was living at the
time of the marriage, and the marriage with such former husband or wife then in force. Then
court will grant decree.

Why Bigamy should prevail in India: Consequences of Monogamy under Hindu Marriage
The Hindu Marriage Act introduced the Christian concept of monogamy into the Hindu
marriage. The provision of monogamy was introduced ostensibly to elevate the status of Hindu
women and it was a demand raised by women in the nationalist movement. During parliamentary
debates, it was claimed that Hinduism is not a religion but a conglomeration of culture. But while
the Act transformed the Hindu marriage from a status to a dissoluble contract, the form of
solemnizing the contract remained Brahminical and scriptural, with the sacred fire and the seven
steps round the sacred fire as its core components. Further, within a pluralistic society, the Act
also had to validate diverse customary practices.
However, a valid custom as accepted under
the Act, had to meet the standards stipulated under the English Law-ancient and existing
continuously since time immemorial. This mingling of Brahminical rituals and customary
practices, with English principles thrown in for good measure, has resulted in absurd and
ridiculous rulings regarding the validity of Hindu marriages and women have been the worst
suffers of these legal absurdities.

K. Padmaja, The law of divorce, 1
edition 2007, ICFAI University Press
Section 7(1) & (2) of Hindu Marriage Act,1955
In the process of urbanization, most customary practices have been modified and urban
communities, living in close proximity, have adopted a synthesis of marriage rituals. The forms
range from exchange of garlands to applying vermilion on the brides forehead, from declaring
themselves married by signing on a stamp paper in a lawyers chamber to performing some
rituals before a deity in a particular temple. This ambiguity regarding the valid form of marriage
is not found under any law governing minority communities. Under other laws, formalities of
solemnizing marriage are strictly prescribed and the officiating priest has to either provide the
necessary documents by way of a marriage certificate or is required to register the marriage with
the registrar of births, deaths, and marriages. Since Muslin, Christian, and Parsi religions are ore
institutionalized, the rules and procedures for contracting marriage are definite and unambiguous
and are strictly controlled by the religious hierarchies. But Hindu marriages (as well as the Hindu
Law), which were based more on community practices, are relatively less institutionalized and
its legality is more ambiguous. Due to the breakdown of traditional communities within these
marriages were performed, the situation has further deteriorated.
This ambiguity has provided a Hindu male ample scope to contract bigamous marriages. Since
the law recognizes only monogamous marriages, women in polygamous relationships are placed
in a vulnerable situation. In the absence of any clear proof, the man has the choice of admitting
either his first or subsequent relationship as a valid marriage and escaping from financial
responsibility towards the other woman. When the man refuses to validate the marriage, the
woman loses not only her right to maintenance but also faces humiliation and social stigma as a
mistress. The flip side of this predicament in maintenance proceedings is the dilemma faced by
women in criminal proceedings in cases of bigamy. Here, years of litigation failed to end in
conviction for the errant male due to the courts adopting a rigid view that saptapadi, vivaha
homa, kanyadan, etc., are essential for solemnizing a Hindu marriage. If the first wife is not able
to prove these ceremonies in respect of her husbands second marriage, the husband could come
out of the conviction. This, despite the fact that he had cohabited with the second wife, the
community has accepted the man and the woman as the husband and the wife, or even if he had
fathered children through the second wife.
So the progressive sounding of monogamy not only turned out to be a mockery, but in fact is
even more detrimental to women than the uncodified Hindu law which recognized rights of
wives in polygamous marriages. For instance, in a case for maintenance where the husband
pleaded that since the woman was his second wife, he was not entitled to pay her maintenance,
the court took recourse to the uncodified Hindu law and held that since the couple is governed by
the ancient Hindu Law which permits bigamy and hence she is entitled to get maintenance.

The first constitutional challenge to the provisions of the Hindu Marriage Act, 1946 come from
the Hindu male challenging the provision of monogamy before the Bombay High Court in State

Anupama Pradhan v. Sultan Pradhan, 1991 Cr LJ 3216 Orissa
of Bombay v. Narasu Appa Mali.
A Hindu husband pleaded that the stipulation of monogamy
violates his personal freedom and hinders the practice of his religion. He argued that it is
discriminatory against Hindu Men, since Muslim men are permitted to contract polygamous
marriage. The court rejected his contention by saying that under Hindu Law bigamy is a ground
for divorce. Similar judgement and contention came in the case of Srinivasa Aiyar v. Saraswati
and C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil.


Air 1952 Bom 84
Air 1952 Mad 193
(1996) 8 SCC 525