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CHAPTER-VI
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MATRIMONIAL OFFENCES
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259
MATRIMONIAL OFFENCES

(A) Historical background of Matrimonial Relations - During the Vedic era

marriage was a sacrament . In this period women enjoyed freedom of choice
in selecting their partners for marriage. It was an indissoluble bond between
a husband and wife and was based on perfect equality between a man and a
woman. During the whole of Vedic period the wife was held a great respect,
without her the house was not a home. She was a companion and friend of

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her husband and not a dasi.360 Marriages were monogamous and the conjugal
bond lasted even after death.

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A gradual decline in the status of woman was seen in post vedic era.
Man became the Lord and the master of his wife. He was to be obeyed by
her even if he was devoid of all virtues.361 The husband should be
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worshipped by a faithful wife even if he is an immoral debauch and lacks all
virtues, Ramayana is full of incidents of wifes devotion to the husband
whether he treats her well or not. Manusmriti ruled out independence of
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women at any stage. In post Vedic era polygamy was not treated as against
the social norms. Polygamy was quite in vogue. Men were permitted to
remarry after taking the wifes permission but there are instances of man re-
marrying on filmsy grounds without such permission. As per observation of
t he court in Veeraswamy V. Appaswam362y, the court observed Medievel
era proved detrimental for women with the invading armies roaming
around women were put behind the veil, child marriages and sati were
resorted to save the honour and chastity of girls. Even than the invaders
indulged in multiple marriages and filled their harems with any women that
they caught a fancy for. The maximum fall in the status of women was seen

360
Manusmriti V. 147
361
Lbid 154
362
(1863) 1. Mad, 375; Bindu V. Kaushalya (1982) 13 All. 126
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 during British period. There are several court decisions during British India
which held that the Hindus could marry again even without the consent of
the wife363
The social reform movements in the 19th Century and the legal activities
witnessed efforts to improve the condition of women, which resulted in the
condemnation of polygamy: Marriage became a Voluntarily union of one man and
one woman, Bombay and Madras legislatures passed the law regarding
monogamy, which was upheld by the courts as measures of social reform. Hindu

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marriage Act, 1955 made polygamy a crime. Section 494 Indian penal code

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prescribed the punishment for second marriage during the subsistence of the first
marriage. Laws making monogamy compulsory amongst the Jews, parsees were
also passed, but still there are numerous cases where the husbands desert their
wives and remarry and thus the females are being victimized.
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The experience so that most of such victims are poor and illiterate girl who
were married by their parents in their childhood. The boys after getting education
and good jobs refuse to honour the sacred relationship and leave the women in the
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lurch. They hide the fact of first marriage to get a wide variety of girls to choose
from. The first wife suffers all sorts to traumas and indignities for no fault of hers.
It is very difficult for her to get back her rights as wife. Husbands sometimes go
through some fraudulent ceremony to convince the female that she has become a
legal wife and she agrees to cohabit with him. It is mostly the young and immature
girls who fall prey to such frauds and suffer because more often than not, such girls
are deserted by these husbands and they are not accepted back by the society. They
have lost their virginity and society has no place for such women whom they
identify as women of loose character. In suresh Nathumal Rathi V. State of
Maharashtra364 Supreme Court observed.

363
1992, Cr. Lj. 2106
364
1992, Cr. Lj. 2106
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 Institution of Marriage is the very foundation of civilization. In our
common experience minor frictions which get distorted into disruptions are really
the wear and tear of the wedded life. Stability of Marriage being in the interest of
individuals. family and society, the spouses be allowed to forget their differences
and lead their marital lives. This decision marginalizes concern for lesser degree
of matrimonial cruelty. Preservation of marriage presumes rigid gender roles. It is
rooted in Indian values and overlooks the women in the changing society.
(B) Matrimonial offences- Women being of defensive and non aggressive nature,

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of muscularly weaker physique, and due to her vulnerable physical condition and

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Indian social culture deserve to have protection of Law. The Indian Penal code
provides many matrimonial protections. Some of them are applicable to both
spouses but seems more to protect the women in particular. The provisions for the
offences relating to the marriage are described under sections 493 to 498 of IPC.
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(a) Cohabitation by fraud and Inducement- Section 493 IPC provides for the
definition of Cohabition by fraud and Inducement as follows Every man who by
deceit causes any woman who is not lawfully married to him to belief that she is
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lawfully married to him and to cohabit or have sexual intercourse with him in that
belief commits the offence of mock marriage It is punishable with imprisonment
up to 10 years and fine
The essence of this offence lies in the practice of deception. To prove
deception it must be conclusively established that the petitioner either dishonestly
or fraudulently concealed certain facts from a girl, or made false statements
knowing them to be false.
This section punishes a man either married or unmarried who induces a
woman to become, as she thinks herself his wife, but in reality his concubine. This
offence may be committed by a person falsely causing a woman to believe that he
is of the same race or creed as her and thus inducing her to contract a marriage,
knowing that such marriage is illegal in the eyes of law but which she believes as
262
a valid marriage. The Calcutta High Court in kartic Kundu365 case held that offence
under this section may also be punished as rape under section 375.
In Suman V. State of M.P. the court opined that366
In case of deceitful marriage it is immaterial whether the woman so deceived
is a major or not. A minor can be induced to believe, or deceived just as much as
an adult can be induced to believe or deceived. As a matter of fact a minor can be
deceived more easily than adult.
Where both the man and woman fully knew that they were not husband and

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wife and no ceremony of marriage took place between them, there is no question of
them believing otherwise.

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But, where the allegation was that though they were not husband and wife,
they had sexual union during late hours in the night for a pretty long time and there
was only a promise to marry in future, and the further allegation was that one day
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they went for registering the marriages but the man ran away from and even
thereafter she submitted herself to him regularly for liaison, the facts could not at
all attract section 493 IPC. was held in Moideen Kutty Haji V. Kunhi Koya367
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This section punishes the offence committed, when a man, either married or
unmarried, induces a woman to become as he thinks, his wife, but he really his
concubine. The form of the marriage ceremony depends on the race or religion to
which the person entering into the marriage belongs. When races are mixed, as in
India, and religion may be changed or dissembled, this offence may be committed
by a person falsely causing a woman to believe that he is of the same race or creed
as herself and thus inducing her to contract a marriage, in reality unlawful, but
which according to law under which she lives, is valid. Suppose a person, half
English, half Asiatic by blood, calls himself a Muslim or Hindu and by his
deception causes a Muslim or a Hindu woman to go through the ceremony of

365
1967 Cr. LJ. 141 (Cal) and Raghunasth Pandey V. State of Orissa 1957, Cr. LJ. 1989
366
(1987) 3 crimes, 112 (MP)
367
AIR 1987 Ker. 184
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marriage in a form which she deems valid and to cohabit with him, he has
committed this offence.368
Since the offence under this section is purely of personal nature, the
prosecution could be initiated only by the aggrieved party on a complaint made to
the Magistrate of First class.369 However on the death of the complainant her
mother can be substituted as a party and the case would proceed as per law.370 The
offence is punishable upto 10 years of imprisonment with fine and is non bailable,
non cognizable,371 non compoundable.372 In Bhukla Bai V. Ganga Ram373, Supreme

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Court made remark that Hindu marriage Act does not provide any penalty for such

marriage i.e. void marriages.

(b) Bigamy
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mock marriages. The Supreme Court made this remark with respect to second

According to section 494 of Indian Penal Code.

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Whoever, having a husband or wife living, marriages 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.
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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 to 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,

368
Margan and Machphersons penal code p. 432
369
Criminal procedure code, 1973, Sec 198
370
Lashwin Nanubhai, AIR 1907 Sc 983
371
Criminal procedure code, 1973 Schedule
372
Ibid sec 320
373
. Bhkulabai V. Gangu Raqm 1988 / SCC 53
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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.
Section 494 has been modlled on the English law of bigamy contained under
section 12 A of the Offence Against the Person Act, 1861. It makes bigamy an
offence. The scope of this section is wide. It is applicable to both husband and
wife.
The section makes bigamy an offence is case of all person living in India
irrespective of religion of either sex, namely, Hindus374 Christian,375 Parsis, except

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Muslim males. In the case of Muslims however a distinction is drawn between a

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male and a female, as Muslim personal law permits polygamy for males (upto 4
wives) but insists on monogamy for females. Thus a Muslim male marrying a fifth
wife during the continuous of for earlier marriage; and a Muslim wife marrying
during the subsistence of an earlier marriage, are punishable under section 494;
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IPC.376
However, if a Muslim man marriage under special marriage Act, 1954 he
would be guilty of bigamy under section 494, IPC, if he enters into another
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marriage under Muslim law, In Radhika sameena V. SHO habeeb Nagar Police
Station.377 the Andhara Pradesh High Court held that when the respondents
marriage with the petitioner had taken place not under Muslim law, but under
special marriage Act, the provisions of the special Act would be applicable and not
of the Muslim Law, Accordingly, the court held that the petitioner was entitled to
compensation and declared the second marriage as void.
The phrase whoever having a husband or wife living, marries means
whoever marries validly or whoever marries and whose marriage is a valid one.
To attract the provisions of section 494 IPC, both the first and the second marriage

374
Section 17, Hindu Marriage Act 25 o 1955 makes bigamy an offence for Hindus, State of Bombay V. Narsu Appa
AIR 1952 Bom. 84
375
Christian marriage Act XV of 1872
376
Parsi Marriage ACTIII of 1936
377 th
Hari Singh Gour, Penal Law of India 11 edn Vol IV p. 4605
265
must be a valid marriage in law. In case either of the marriage is not valid
according to the law applicable to the parties, it will not be a marriage in the eyes
of the law that will attract section 494 IPC.
In Bhaurao Shanker Lokhonde V. State of Maharastra. The Supreme Court
held that the mere fact a man and a woman living together as a husband and wife
does not at any rate normally give them the status of husband and wife even though
they might hold themselves out before the society as husband and wife and society
treats them accordingly Likewise, the mere keeping of a concubine or mistress is

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not a marriage and is sufficient to invoke this section378. Divorce dissolves a valid

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marriage and the parties obtaining such dissolution can re marry. Similarly after
the deaths of one of the spouses the other is free to marry.
Section 494 IPC and section 17of Hindu Marriage Act
Section 17of the Hindu marriage Act, 1955 makes bigamy among Hindus
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punishable under section 494 and 495, I.P.C.
In Bhaurao Shanker Lokhands379 , the appellant, who was married to the
complainant Indubai in 1956, married Kamlabai in Feb. 1962 during the lifetime of
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Indubai and was convicted for bigamy under section 494 IPC read with section 17
of the Hindu Marriage Act, 1955 According to section 17 of the Act.
Any marriage between two Hindus solemnized after the commencement of
the Act is void if at the date of such marriage either party had husband or wife
living and the provisions of section 494 and 495 of the IPC shall apply
accordingly.
Hindus include Sikhs Jains, and Buddhists vide Article 25, Explanation II to
the Constitution of India.
Thus bigamy between two Hindus will be void if

378
Bhaurao Shanker Lokhonde V. State of Maharastra AIR 1965 SC 1564
379
AIR 1965 SC 1564 Bonb 984; Held, Polygamy is not an essential part of Hindu religion and so it can not e
regulated by law.
266
 (i)The marriage is solemnized after the commencement of the Hindu
Marriage Act, and
(ii) At the date of such marriage either party had a spouse living
Setting aside conviction, the Supreme Court held that in the absence of the proof of
the performance of the essential ceremonies at the time of marriage between the
appellant and kamlabai, the marriage did not come within section 17 of the Act and
as such it did not come within the mischief of section 494, IPC even though the
first wife was living when he married kamalabai in Feb, 1962.

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The court observed that to constitute an offence of bigamy, marriage must be

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celebrate with proper ceremonies and in due form merely going through certain
ceremonies with the intention that the parties be taken to be married will not effect
a marriage between them. Such ceremonies being not prescribed by law or
approved by customs, the marriage is not a valid marriage and so it is no marriage
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in the eyes of the law for the purpose of bringing the case of bigamy within section
494 PIC 380
The Supreme Court affirmed his earlier view in Gopal Lal V. State of
Rajasthan381 and held that when a spouse contracts a second marriage while the
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first marriage is still subsisting, the spouse becomes guilty of bigamy under section
494 I.P.C. only if it is proved that the second marriage was a valid one in the sense
that the necessary ceremonies required by law or by custom have been actually
performed. The void nature of marriage under section 17 of the Hindu Marriage
Act, 1955 is in fact one of the essential elements of section 494, IPC because the
second marriage will become void only because of the provisions of section 17of
the Hindu Marriage Act, 1955.

380 th
According to Mullas Hindu Law 12 edn, by Sunder Lal T. Desai, N.M. Tripathi (1966) p. 472 the following are
two essentials for a valid Hindu Marriage Viz,
(i) Invocation before the sacred fire and
(ii) Saptaadi, that is taking of seven steps by the bridgegroom and bride jointly before sacred fire
381
AIR 1979 SC 713
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 What section 17 of the Hindu Marriage Act, 1955 contemplates is that the
second marriage must be performed according to the ceremonies required by law.
If marriage is void, its void character would only lead to civil consequences arising
from such marriage. Section 17of the Hindu Marriage Act has to be read in
harmony and conjunction with section 494, IPC, thereafter, merely because the
second marriage is void under section 17 of the Hindu Marriage Act, It can not be
said that section 494 IPC will be attracted.
In Godawari V. State of Maharashtra382 it was held that where there was

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absolutely no evidence to prove that either of the two essential ceremonies, i.e.

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Dutta Homa and Saptapadi, had been performed at the time of second marriage
and the existence of the custom in the community to put the yarn thread instead of
Mangala Sutra was neither mentioned in the complaint nor proved in the
evidence, the conviction under section 494, IPC could not be sustained.
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(i) Mensrea in Bigamy- The fundamental principle of penal liability is that an act
alone does not amount to a crime. It must be accompanied by guilty mind, as laid
down by the Latin Maxim actus non facit reum nisi mens sit rea therefore if a
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person is to be punished under criminal law it is generally agreed that he must have
done some criminal act, and he must have done such a with a guilty mind
(Mensrea) Though section 494 IPC makes no reference to intention or knowledge
as a constituent element of the offence of bigamy the courts in India following
famous English case R.V. Tolson383 where it was held that the moral presumption
that a penal statute requires some mensrea must be given effect. Thus guilty
knowledge is a necessary element of the offence under section 494 IPC.384
In Sankaran Sukumaran V Krishnan saraswathy. The Karela High Court
observed that the recitals in the divorce deed clearly showed that the parties

382
(185) Cr. LJ 1472 (Bono)
383
(1889) 232 Q.B.D. 168
384 th
Hari Singh Gaur, Penal law of India 11 edn volume IV, 2000) pp. 4609-4620, RV Dalman, (1949) 1. All Er 813
R.V. Gould (1968) I All ER 849, R.V. Morgan, (1976) AE 182, 192
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honestly believed that they were no longer husband and wife. In the circumstances,
it had to be held that the accused when he contracted a second marriage acted on
the bonafide belief that his first marriages was put to an end, and thereby he was
doing no wrong act.385
The position under English law on bigamy is similar to Indian law. In R.V.
Tolson,386 the accused Mrs Tolson; was prosecuted for bigamy under section 57 of
the Offences Against Person Act, 1861 for contracting a second marriage during
the life time of her husband. The House of Lords by majority of nine to five

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quashed the conviction and held that a reasonable belief in good faith in the death

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of the first spouse negatives mensrea, and is a good defence to a charge of bigamy,
although he or she has not been continuously absent from the defendant for seven
years- Thus an accused will not be guilty of bigamy, if he believed on reasonable
grounds that-
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i) His wife was dead : or
ii) His first marriage was void or
iii) His first marriage has been dissolved or annulled.387
In R.V. Wheat and R.V. Stocks388 a man of little education instructed his
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solicitors to obtain a divorce from his first wife, and received a telegram from them
stating that he would shortly receive the necessary papers for signature He
thereupon married stocks and, at his trial for bigamy, the jury found that he
believed on reasonable grounds, and in good faith, that he had been divorced from
his wife. The accused was nevertheless convicted and his conviction affirmed on
appeal the court Held that, a reasonable belief that the first marriage had been
dissolved is no defence to the charge of bigamy in the facts and circumstances of
the case.

385
1984 Cr. LJ 317 ker
386
(1889) 23 QBD, 168
387 nd
Harriss Criminal law 22 edn (reprinting 2000) p 261
388
(1921) 2 K.B, 119
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 So far as the problem of reconciling Wheat with Tolson is concerned, it has
been said that the accuseds mistake in former case was one of law, whereas that of
Mrs. Tolson was one of the fact, but this is not how the court distinguished the two
cases.
The court held that as Wheat knew the lady (first wife) was alive at the time
of his second marriage, he intended to marry during the lifetime of his former wife,
and was unable to show that he came within the proviso as to divorce. Mrs Tolson
on the other hand, did not intend to marry during the lifetime of her first husband.

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Thus it can be said that the Doctrine of Mensrea applies to bigamy to the

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extent that the prosecution will fail if the accused can show that he had not the
constructive knowledge of the fact that he was a married person when he went
through the second marriage, except that even a reasonable belief in divorce will
not afford a defence owing to the provision of section 57of the offences Against
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the Person Act 1861.
The pertinent question arises whether a married person makes a conversion
of religion and marries to another woman, is treated as bigamy under the law.
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Conversion of Religion and bigamy

In most of the cases, change of religion by one of the parties does not
involve a dissolution of the marriage. There are however cases in which the change
of religion by one party automatically results in termination of first marriage. In
such cases the first marriage will be automatically taken out of the purview of
section 494 IPC. The previous marriage would not deemed to be subsisting any
longer. This depends upon the religion to which the parties to the marriage belong.
The marriage would not be dissolved if both the parties become converts to the
same religion under section 13 of Hindu Marriage Act, the husband or the wife is
entitled to get the marriage dissolved, if the other party ceases to be a Hindu by
conversion to another religion, but conversion per se does not operate as
dissolution of marriage.
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 In view of disparity in personal laws of different communities, particularly,
Islam that allows polygamy, change of religion or conversion has been used as an
easy way out to defeat the provisions of law. In this process the courts have
adopted sometimes diagrammatically opposite views. Sometimes the court have
approved of change of religion, even if it is simply to satisfy the lust, while on the
other occasions have disapproved of such nefarious acts. Study of the some of the
cases on this points are discussed below. The position is regard to the effect of
conversion of religion on bigamy is almost the same as in India.

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In a case from Srilanka the privy council was confronted with a vexed

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question of law as to whether a person who contracts a second marriage, during the
life time of his or her former spouse after renunciation of his or her religion (viz,
Christianity)and embracing another religion (e.g. Islam) is liable for bigamy under
section 362 B of the Ceylonese panel code.389 Which says; Whoever having a
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husband or wife living, marries in any case in which such marriage in 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.390
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The matter before the Privy Council in an appeal by Attorney General of

Ceylon, from a judgment of the Supreme Court of Island of Ceylon dated 11th July
1963, whereby the respondents appeal against the conviction by the District Court
of Colombo of the offence of bigamy was allowed and the conviction was quashed.
The respondent married Edna Margaret de witt according to Christians rites
at St. Marys Church, Badulla on 18th Sept. 1933. Both were Christian at the time
of marriage and they lived together as husband and wife until 1857. There were
eight children of the marriage. In May 1957 the wife left the respondent and
obtained a maintenance order against him in the magistrate court of Colombo.

389
A.G. of Ceylon v Reid (1965) 28 Mad LJ 484
390
Section 362 B of the ceylonsese Penal Code is similar to section 494 of the IPC
271
 On the 13th June 1959 the respondent and a divorce lady of the name of
Fatima Passy were, converted to the Muslim faith. A month later on 16 th July, 1959
they were duly married in the District court of Colombo by the Registrar of
Muslim marriages, under the provisions of Muslim marriage and Divorce Act,
1951 notwithstanding that the earlier marriage was subsisting.
Dismissing, the appeal their lordship of privy council said;
Whatever may be the situation in a purely Christian country they cannot
agree that in a country such as Ceylon, a Christian monogamous marriage prohibits

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for all time during the subsistence of that marriage a change of faith and of

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personal law on the part of a husband resident and domiciled there. In their
Lordships view in such countries there must be an inherent right in the inhabitants
domiciled there to change their religion and personal law and so to contract a valid
polygamous marriage is recognized by laws of the country notwithstanding an
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earlier marriage, if such inherent right is to be abrogated it must be done by statute
Admittedly there is none.
It is submitted that the Reids case decided by the Privy council 47 years ago
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which held conversion of a Christian husband to embrace Islam just to contract a

second marriage as valid and affirmed that such a person is not liable for bigamy
under section 362 B of the Ceylonese penal code does not hold good. The
judgment needs to be reviewed in the light of the changed out look towards the
women and the concept of equality and Human Rights enshrined, in Article of the
United Nation Declaration on the Elimination of Discrimination Against the
Women This becomes more important when the conversion from one religion to
another takes place just to defeat the provisions of law causing immunerable
hardships and suffering to women and children.
Singapore was a part of Malaysis till 1965, it was perhaps to avoid the
possibility of application of Reids case in Singapore, that the womens character
(Amendment)Act, 1967was enacted to nullify the effect of any of the said
272
judgment. Section 4 of the Act in clause (1) to (3) prohibit second marriage under
any law, religion, custom or usage, during the life time of the former spouse and
sections declares any marriage in contravention of the section 4 as void.391
Womens charter (Amendment)Act, 1967, Section 4 (1) Every person who
on the date of coming into operation of this Act lawfully married under any law,
religion, custom or usage to one or more spouses shall be incapable, during the
continuance of such marriage or marriage of contracting a valid marriages under
any law, religion, custom or usage with any person.

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2. Every person who on the date of the coming into operation of this Act is

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lawfully married under any law, religion or usage to one or more spouses and who
subsequently ceases to be married to such spouse or all such spouses shall if he
thereafter marries again be incapable during the continuance of that marriage of
contracting a valid marriage with any other person under any law, religion, custom
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or usage.
In Malaysia in 1976 the Law Reforms (Marriage and divorce ) Act 1976
(came into operation on March, 1 1982) was passed to provide for monogamous
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marriage as well as to consolidate the law relating to divorce among non Muslims.
The Act however is not applicable to Muslim. 392
In Hongkong the Marriage Reform Ordinance, 1970, which is similar to
Singapore law provides for monogamy in marriages and makes other references
relating to family obligations-
Position in India
When one or the other spouse i.e. husband of wife renounces his or her
religion and embraces other religion (e.g. Islam which permits polygamy) in order
to marry again during the life time of the former spouse, section 494 IPC attracted.

391
Sec 5 (1) Every marriage contracted in the contravaentionof the provision of section 4 of this Act shall be void
392
Law Reformis (Marriage and Divorce) Act, 1976 sec. 3 (3) of the Act excludes the Muslims from its operation.
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 The Supreme Court in Sarla mudgal V. Union of India393 case has ruled that
change of religion does not permit a person to defeat the provisions of law under
section 494 IPC and give license to commit bigamy.
The four petitions394 came before the Supreme Court under Article 32 of the
constitution. The court disposed them together since they relate to common
question of contacting a second marriage by a Hindu husband after embracing
Islam.
The question for consideration before the court was:

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1. Whether a Hindu husband, married under Hindu Law, by embracing Islam
can solemnized marriage?

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2. Whether such a marriage without having the first marriage dissolved under
the law would be a valid marriage qua the first wife who continues to be a
Hindu ? and
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3. Whether the apostate (convert) husband would be guilty of committing the
offence of bigamy under section 494 IPC.
After examining a number of the cases the court said A marriage celebrated
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under a particular personal law can not be dissolved by the application of another
personal law of which one of the spouses converts and the other refuses to do so.
Where a marriage takes place under Hindu law the parties acquire a status and
certain rights by the marriage itself under the law governing the Hindu marriage
and if one of the parties is allowed to dissolve the marriage by adopting and
enforcing the new personal law, it would tantamount to destroying the existing
rights of the other spouse who continues to be Hindu. We, therefore hold that
under Hindu personal law as it existed prior to its codification in 1955 a Hindu
marriage continued to subsist even after one of the spouses converted to Islam.
There was no automatic dissolution of marriage

393
Sarla Mudgal V. Union of India AIR 1995 Sc (153)
394
Amar Nath V.H.S. Amar Nath ( 1946) 49 PLR 147 Rakeya Bibi V. Anil Kumar (1948) 2 cal 119 Bibi V. Jayanti
Mahadeo (1981) Nats LJ 614 R. Khanum V.K. Grani (1946) 48 Boni LR 864
274
 The court further held that second marriage of an apostate (Convert)
husband would be in violation of the rules of natural justice and as such it would
be a void marriage punishable under section 494 IPC. (for bigamy)
In this case the court strongly advocated for enactment of a Uniform Civil
Code for all citizens in conformity with constitutional mandate under Article 44395
of the Constitution of India and directed the Government to enact Conversion of
Religious Act to check abuse of religion by any person. The law may provide that
every citizen who changes his or her religion can not marry another unless he or

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she divorce his or her first spouse. This provision should have a uniform

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application to every person irrespective of religion to which he or she belongs to in
consonance with the provisions of Article 14 of the constitution that guarantees
Equality before Law
It is a welcome judgment and will go a long way in defeating the nefarious
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activities of those who abuse religion to defeat the law However as regards
enactment of a Uniform Civil Code is concerned, it appears to be a distant reality.
This is evident from the fact that the Union Government has informed the apex
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court of its inability for enactment of such a legislation in view of the strong
opposition from the minority communities functionaries in general and Muslim
religious leaders in particular. The question is as to why the Union Government is
so weak that even after 65 years of independence and the supreme courts specific
direction the government has not endeavoured to make Uniform Civil Code. Even
small countries like Singapore and Honkong have enacted uniform law where
persons belonging to different religious faith are living.
In Lily Thomas V. Union of India396, the approach was made to the Court to
review the decision given in Sarla Mudgal case on the ground that the judgment in

395
Article 44 provides that state shall endeavour to enact for the citizens a uniform civil code throughout the
territory
396
Lily Thomas V. Union of India AIR 2000 SC 1650
275
the impugned case is contrary to fundamental right to life and liberty and freedom
of religion as enshrined in articles 20, 21, 25 and 26 of the Constitution.
The court rightly refused to depart from its earlier view and held the review
petition is without any substance and is liable to be dismissed. Affirming its earlier
judgment of 1995 the court said change of religions does not dissolve the marriage
performed under Hindu Marriage Act, 1955. A second marriage during the lifetime
of the spouse, would be void under section 11397 and 17398 of the Hindu Marriage
Act, 1955 besides being an offence under section 494 I.P.C.

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The contention of the petitioner that the judgment in Sarla Mudgal amounts

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to violation of the freedom of conscience and free profession, practice and
propagation of religion as guaranteed under articles 25 and 26399 of the
Constitution is farfetched and is artificially carved out by such persons who alleged
to have violated the law by attempting to cloak themselves under the protective
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fundamental right guaranteed under Article 25 of the constitution. The court held.
The second marriage solemnized by a Hindu during the subsistence of first
marriage in an offence punishable under the Penal Law. Freedom guaranteed under
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article 25 of the constitution is such freedom which does not encroach upon a
similar freedom of the other persons under the constitutional scheme every person
has a fundamental right not merely to entertain the religious belief of his choice
but also to exhibit his belief and ideas is such a manner which does not infringe the
religious right and personal freedom of the others.
On the question that making a convert liable for bigamy under section 494
of the IPC would be against Islam which permits polygamy, the Apex court

397
Hindu Marriage Act, 1955 sec 11. Void marriage Any marriage solemnized after the commencement of this Act
shall be null and void . If it contravenes any one of the conditions specied in clause (i) (iv) and (v) of sec 5 (neither
party has a spouse living at the time of marriage)
398
Sec 17 punishment for bigamy: Any marriage between two Hindus in void and the provisions of sec 494 and 495
of IPC shall apply
399
Article 26 and guarantee freedom of conscience and free profession practice and propagation of religion and
freedom to manage religious affair.
276
observed that such a plea demonstrates the ignorance of the petitioners about tenets
of Islam and its teaching. The court said:
The word Islam means peace and submission. In its religious connotation it
is understood as submission to the will of God Muslim law as traditionally
interpreted and applied in India, permits more than one marriage during the
subsistence of one and another through capacity to do justice between co wives in
law is condition precedent. Even under the Muslim law purity of marriage is not
unconditionally conferred upon the husband. It would therefore be, doing injustice

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to Islamic law to urge that the convert in entitled to practice bigamy

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notwithstanding the continuance of his marriage under the law to which he
belonged before conversion. The violators of law who have contracted the second
marriage can not be permitted to urge that such marriage should not be made
subject matter of prosecution under the general penal law prevalent in the country.
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The progressive outlook and wider approach of Islamic law can not be permitted to
be squeezed and narrowed by unscrupulous litigants who apparently are found to
be guilty of the offence under the law to which they belonged before their alleged
conversion The Islam which is pious, progressive and respected religion can not
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be given a narrow concept as has been tried to be done by the alleged violators of
law. The court further held that
If the first marriage was solemnized under the Hindu marriage Act, 1955 the
husband or the wife, by mere conversion to another religion, can not bring to an
end the marital ties already established on account of a valid marriage having being
performed between them. So long as that marriage subsists, another marriage can
not be performed, not even under any other personal law, and on such marriage
being performed, the person would be liable to be prosecuted for the offence under
section 494 IPC.400

400
Ibid para 58
277
 The above two judgment are landmark and have set at rest the ambiguity in
respect of the rights, duties and obligations of those who embrace another religion
just to defeat the provisions of law.
It is noteworthy that a three Judge Bench of Supreme Court presided over by
the chief Justice, V.N. Khare in Johan Vallamattom V. Union of India in a
momentous judgment delivered on July 22, 2003 declared section 118 of the Indian
Succession Act, 1925 which applies to Christians alone and to any other
community and imposes restrictions on the community from bequeathing their

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property for religious and charitable purposes by well before 12 months, of ones

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death is discriminatory and violative of Article 14 of the Constitution.
While reiterating its earlier observations in Sarla Mudgal and Lilly Thomas
the court expressed its distress over the governments failure in enacting a Uniform
Civil Code to and discrimination among various religious communities in the areas
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of marriage, succession and property and observed that such a code would help in
removing contradictions based on religious ideologies and such matters of secular
character cannot be brought with in the guarantee enshrined under article 25 and 26
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of the Constitution of India.

(C)Fraudulent (Unlawful) marriage-
According of section 496 of Indian Penal Code
Whoever dishonestly or with a fraudulent intention, goes through the
ceremony of being married, knowing that he is not thereby lawfully married shall
be punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.
Sometimes men entrap unsuspecting women by going through the ceremony
of being married dishonestly or with fraudulent intentions, knowing fully well that
he is not thereby lawfully married. Such cases are covered by section 496 IPC. It
applies to all cases in which a ceremony is gone through but such ceremony in no
case constitute a marriage and in which one of the parties is deceived by the other
278
into the belief that it does not constitute a marriage, or in which effect is sought to
be given by the proceeding to some collateral fraudulent purpose.
The essence of the offence is that the marriage ceremony should be
fraudulently gone through and that there should be no lawful marriage the parties
to the marriage or at least one of the parties must have the knowledge that there is
no lawful marriage In other words, to constitute the offence under this section the
prosecution must prove that the accused know that there was no valid marriage and
he had gone through a show of marriage with a fraudulent or ulterior motives.401

r
But if the accused intends to perform a valid marriage and honestly goes through

of bigamy punishable under section 494 IPC.

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the necessary ceremonies during the lifetime of the other spouse, it will be an act

This section applies to those situation where a fake ceremony is gone

through pretending it to be a valid marriage, Such a marriage would not constitute
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a valid marriage-
1. In which one of the parties is deceived by the other into the belief that it
does not constitute a marriage, or
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2. In which effect is sought to be given by the proceeding to some collateral

fraudulent purpose.
It is not out of place to mention here that there is a difference between Bigamy
and Fraudulent marriage. The offence of bigamy is different from the offence
under section 496 IPC. If the accused intends that there should be a valid marriage
and honestly goes through the ceremonies during the life time of other spouse then
it may be a case under section 494 IPC but if the accused intends that there should
be only a show of marriage and dishonestly and fraudulently goes through the
marriage ceremony knowing fully well that he is not legally married then it is an
offence under section 496 IPC402

401
Kshitish chandra chaudhry V. Emperor AIR 1937 214
402
Kawlash Singh V. Priti Prihar 1982 CrLJ 1005 (Raj)
279
 Section 493 and 496 IPC are some what alike and deal with mock or fraudulent
marriages However some basic differences between the two section are-
Section 493 IPC makes cohabitation or sexual intercourse by deceitfully making
the woman believe that the accused was lawfully married to her and make her live
with him as wife and husband. On the other hand section 496 IPC deals with cases
wherein a marriage ceremony is fraudulently performed with no intent of lawful
marriage.
Section 493, IPC only affects the man, while section 496 IPC affects a

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person of either sex i.e. both a man and a woman may be guilty under section 496
IPC.

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Section 496 IPC, requires no form to symbolizes marriage- a mere verbal
deception that the woman is married is sufficient. This section does not require
deception, cohabition or sexual intercourse as a sine qua non ( a necessary
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requirement) but a dishonest or fraudulent abuse of the marriage ceremony is
sufficient on the other hand under section 493. Deception is necessary condition
followed by cohabition or sexual intercourse to hold a person liable for the
offence.403
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(D ) Adultery
According to section 497 IPC
Whoever has sexual intercourse with a person who is and whom he knows or
has reason to believe to be the wife of another man, without the consent or
connivance of that man, such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery, and shall be punished with imprisonment
of either description for a term which may extend to five years, or with fine or the
both In such case the wife shall not be punishable as an abettor.
Sexual intercourse not amounting to the offence of rape is adultery. Adultery
is a flagrant violation of a womans dignity. The legal provision and the social

403
Ratan lal and dhraj lal. The Indian Penal Code p 478
280
attitudes reinforces her subordinate status to society. She is the property of her
husband and cannot even fight independently regain to region her lost prestige.
Adultery is an invasion on the right of the husband over his wife. In other words, it
is an offence against the sanctity of the matrimonial home and an act which is
committed by a man.404 It is an anti-social and illegal act. It consists in having
carnal knowledge of a married woman405 with knowledge of that fact without the
consent or connivance of her husband.406
According to Indian Penal Code, adultery is a voluntary extra marital sexual

r
intercourse by a man with a woman whom he knows or has reason to believe, to be

la
the wife of another, without the consent or connivance of her husband.
This section regards adultery as an infringement of the right of husband
towards his wife therefore it is an offence. No court shall take cognizance of this
offence unless there is a complaint by the husband. This section makes knowledge
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that the woman is another mans wife an essential element of the crime. It is not
essential that the adulterer should know whose wife she is, provided he knew that
she was married woman. To sustain a conviction under this section the conviction
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must not only prove that the accused had sexual intercourse with his wife but also
the fact that the act was done without his consent and connivance.407 Connivance
here means willing consent to a conjugal offence to a course of conduct reasonable
likely to lead to the offence being committed.
Thus adultery is an offence committed by a man against a husband in respect
of his wife. It is not committed by a man who had sexual intercourse with an
unmarried or a prostitute woman, or with a widow or even with a married woman
whose husband consents to it or with his connivance. Connivance is a figurative
expression which means a voluntary blindness to some present act or conduct, to

404
Olga Thelma Gomes V. Mark Gome .AIR 1959 Cal. 451
405
Dulip Singh AIR 1949 All. 237
406
M. Clearance V.M> Raichel AIR 1964 Mys. 67
407
In re C.S. Subramaniam AIR 1953 Mad. 422
281
something going on or before the eyes, or something which is known to be going
on, with no protest or desire to disturb or interfere with it. The consent or the
willingness of the woman is no excuse to the crime of adultery.408
Wife not guilty for Adultery- Adultery under section 497 IPC is limited in scope
as compared to the misconduct of adultery as understood in divorce proceeding. As
discussed before, the offence is committed only by a man. Who has sexual
intercourse with the wife of another man and without the latters consent as
connivance. The wife is not punishable for being an adultress, or even as abettor of

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the offence, despite being a consenting party to the crime. She as an abettor will
get away with it.

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It will be worthwhile to mention here the position of adultery in other
countries.
The criminal law of adultery varies from country to country. It differs according
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to the religious norms, attitude of the people and many others factors.
1. Adultery in Pakistan and Islamic countries In Pakistan adultery is
viewed as a heinous offence and both the man and woman are subjected to
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punishment which may extend to the death sentence. In 1987 .409 Pakistan
Court of Session sentenced a couple to be buried up to their necks and
stoned to death in public for committing adultery. Few years back in 2002410
Zafran Bibi was sentenced to death by stoning in North west. As per report
published in New York Times; on 26th of march, 2001 Zafran Bibi went to
the police station along with her father-in-law, Zubita khan and said she had
been raped by Akmal khan while cutting tgrass outside the village. She
named Akmal Khan, a villager involved in long running dispute with her
family as her attacker. At the time her husband was in jail for murder. Bibi
408
Gul Mohammad V. Emperor AIR 1947 Nag. 121.
409
Hindustan Times (Nov. 10, 1987, p. 11 Delhi edn) Mohd sarwar, aged 35, had eloped with Sahida aged 26, a few
years ago and the couple were later found to be living together in Lahore, on a report from Sahidas husand,
Khushi Mohd. Arrested them, and were prosecuted.
410
New York Time, May 27, 2002 p. 20 Humaach Bloch. Special report
282
 was examined by a doctor and found to be pregnant, a fact that, appears to
have convinced the judge that she was guilty of adultery, presuming act to
be with consent. Perhaps such a severe sentence for adultery is awarded in
Pakistan since Islamic Penal Law (Huddod Ordinance) was introduce in
1980. In some other Islamic countries such as Saudi Arabia, Iran, Egypt etc
also like Pakistan, adultery is punished severely.
Malaysia, Singapore and Hongkong- Malaysia which is predominantly a Muslim
country, adultery is not an offence under the penal code. The reason may be the

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influence of Singapore and Hongkong, where adultery is not punishable.

la
Philippines. Philippines is catholic dominated Christian country. It is of interest to
note here that it is the married woman, and not the husband, who is liable for
adultery. Article 333 of the Revised Penal Code Act No. 3815 states.
Adultery is committed by any married woman who shall have sexual
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intercourse with a man who has carnal knowledge of her, knowing her to be
married even if the marriage is subsequently declared void.
Adultery shall be punished by prison correctional in its medium and
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maximum periods .
However in case of a married man keeps a concubine, both man and
concubine are liable to punishment.
United States: The law relating to criminal adultery prevailing in different states in
the United States reveal that three major formulation of adultery exist under state
laws in the Unites States viz:-
(1) The common law view411
(2) The cannon ( a law or body of laws of a church)
(3) The hybrid view

411
Common Law is the term used for the law of a country or state based on custom, usage, and the decisionof the
law courts, technically common law is referred to English Law.
283
According to common Law view, adultery takes place when the woman is
married and both husband and wife are held liable.
Under the canon law (Law of church) view, adultery is the voluntary sexual
intercourse of a married person with a person other than the offenders husband or
wife and only the married person is held guilty.
According to the hybrid rule, followed in twenty states in the Unites States,
if either spouse has sexual intercourse wife a third party both transgressors are
guilty of adultery.

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Finally, eight states held both transgressors guilty, if the woman is married,

at all412

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but if the woman is single only the man is guilty. Six States do not punish adultery

England and France. Adultery is not criminal offence in the Unites Kingdom. It
is punishable, though mildly in some of the European countries. In France a wife
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guilty of adultery is punishable for a period ranging from three months to two
years of imprisonment. The husband however, may put an end to her sentence by
agreeing to take her back./ The adulterer is punishable similarly.
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Germany- In Germany if a marriage is dissolved as a result of adultery the guilty

spouse as well as the guilty partner, is punishable with imprisonment for a term of
not less than six months but prosecution has to be initiate by the aggrieved spouse
by means of a petition.
Adultery in Jammu & Kashmir
Jammu and Kashmir State Ranbir Penal Code, 1932 is more progressive in
regard to adultery. Section 497 of the code makes the errant wife punishable along
with her friend.
According to this section
Whoever has sexual intercourse with a person who is and whom he knows
or has reason to believe to be the wife of another man without the consent or

412 nd
Law commission of india 42 report (1971) 323-328
284
connivance of that man, such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery and shall be punished with imprisonment
of either description for a term which may extend to five years, or with fine, or
with both In a such case the wife shall be punishable as an abettor.
Constitutionality of section 497
The constitutional validity of the section 497, IPC was impugned under
Article 14 on the ground that the law with regard to adultery operates unequally as
a between man and woman. The Supreme Court in Yusuf Abdul Aziz V. State of

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Bombay413 held that Section 497, IPC is not ultra virus of the constitution. It does

la
not offend articles 14 and 15 of the constitution on the ground that the wife with
whom adultery is committed is saved from the purview of the section and is not
punished as an abettor. Sex is a sound classification accepted in article 15 (3) of
the Constitution.
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The Supreme Court affirmed his view in Sowmithri Vishnu V. Union of
India414 while dismissing the petition challenging the provision, under section 497
IPC, which create the offence of adultery as unconstitutional, The court held that
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section 497 IPC cannot be said to be violative of article 14 of the constitution on

the ground that it makes an irrational classification between men and women in
that-
(i) Section 497IPC confers upon the husband the right to prosecute the
adulterer, but it does not confer any right upon the wife to prosecute the
woman, with whom her husband has committed adultery.
(ii) Section 497IPC does not confer any right on the wife to prosecute the
husband who has committed adultery with another woman; and
(iii) Section 497 IPC does not apply in cases where the husband has sexual
relation with an unmarried woman, with the result that husband have a free

413
1954 cr L.J. 886
414
AIR 1985 SC 1618
285
 license under the law to have an extra marital relationship with an unmarried
woman.
In defining the offence of adultery so as to restrict the class of offenders to
men only, it was held that no constitutional provision has been infringed. It is
commonly accepted that it is the man who is a seducer and not the woman . The
court further observed that the position might have undergone some change over
the year, but it is for the legislature to consider whether section 497 IPC should be
amended appropriately so as to take note of the transformation which society has

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undergone.

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The court observed that the fact that a provision for hearing the wife is not
contained is section 497 IPC can not make the section unconstitutional as violating
article 21 of the Constitution. It is true that, section 497 IPC does not contain a
specific provision for hearing the married woman, but that does not justify the
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proposition that she is not entitled to be heard at the trial, if she makes an
application to the court to this effect.
According to the Penal code adultery is an act of which only a man be guilty
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of. It is an offence which is committed by a third person against husband in respect

of his wife. Adultery in criminal procedure code415 has a much wider significance.
It is contemplated in the popular sense of the term viz, a breach of matrimonial ties
by either party but under IPC the definition of this crime in rather narrow. The
term adultery under section 10 of the Divorce Act has a wider meaning In
matrimonial cases under the Hindu Law adultery has been used in a different and
wider sense.
Recommendation of the law Commission of India- It is commonly accepted
that it is the man who is the seducer and not the woman. This position may have
undergone some change over the years but it is for the legislature to consider
whether section 497 should be amended appropriately so as to take note of the
415
Section 198 of CR. PC. 1973
286
transformation which the society has undergone .416 The law commission of India
is its 42nd report, 1971, recommended the retention of section 497 in its present
form with the modification that even the wife, who has sexual relations with a
person other than her husband should be made punishable for adultery.
Supreme court has observed that though it is true that the erring spouse have
no remedy against each other within the confines of section 497 of IPC that is to
say, they can not prosecute each other for adultery each one has a remedy against
the other under the civil law, for divorce on the ground of adultery. Adulter under

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the civil law has a wider connotation than under the penal code. If we were to

la
accept the argument of the petitioner, section 497 will be obliterated from the
statule book and adulterous relation will have a mere free play than now., For then,
it will be impossible to convict anyone of adultery at all. It is better, from the point
of view of the interests of society, that at least limited class of adulterous
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relationship is punishable by law. Stability of marriages is not an ideal to be
scorned.417
The report of the law commission shows that there can be two options on the
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desirability of retaining a provision like the one contained in section 497 on the
statute book. But the court can not strike down that section on the ground that it is
desirable to delete it.
Recommendation made by National Commission for women to amend section
497.
A woman, even if she is involved in an illicit relationship, can not be
punished for adultery and is treated as victim under law. The National commission
for woman has shot down proposals for amending section 497 so that women can
be prosecuted for adultery.

416
AIR 1985 SC 1618
417
Sownitheri Vishnav. Union of India AIR 1985 Sc 1618
287
 The existing provision in IPC is based on the mindset that the wife is a
personal possession of the husband, who is the sole aggrieved person in an incident
of adultery The commission has however, recommended suitable amendment to
section 198 (2) of the code, which as of now disqualifies the wife of an unfaithful
husband from prosecuting him from his promiscuous behavior. In another
important recommendation, the commission has said adultery should be treated as
a civil wrong and not a criminal offence. It is of the view that there may be many
instances where the woman wants to save the marriage and sees the adulterous

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relationship as an aberration. The issue of adultery should be viewed as a breach of

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trust and be treated as a civil wrong rather than as a criminal offence.
A Bill in this regard in pending before the parliament which is drafted by the
National Commission for women.
6 (E) Enticing or taking away or detaining with criminal intent a married
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woman
Section 498 IPC deals with the offence of criminal elopement. The
provisions of section 498, like those of section 497, are intended to protect the
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rights of the husband and not that of wife. The gist of the offence under section 498
is the deprivation of the husband of his custody and his proper control over his
wife with the object of having illicit intercourse with her by the act of some
blandishment or allurement whereby her consent so to stay away is obtained by the
offender.
Section 498 reads as follows-
Whoever takes or entices away any woman who is and whom he knows or
has reason to believe to be the wife of any other man, from that man or from any
person having the care of her on behalf of that man, with intent that she may have
illicit intercourse with any person, or conceals or detains with that intent any such
woman shall be punished with imprisonment of either description for a term which
may extend to two years or with fine or with both
288
 The Supreme Court held in Alamgir V State of Bihar418 that the gist of the
offence under this section is the deprivation of the husband of his custody and
proper control of his wife with the object of the accused having illicit sexual
intercourse with any person.
The court in Govind Chand Singh Roy V. Haru Chandra Singh Roy held that
the word takes cannot connotes the personal or active assistance of the accused to
the wife in getting her away from the husbands protection or from the protection
of any person who has care of her on the husbands behalf.419 If a woman can not be

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deemed to be under the protection of her husband or of any person on his behalf,

la
the accused can not be guilty under this section.420
The taking away etc must be of married to woman, held by the court in
Mahiji Fula.421 The marriage of the woman must be proved; it is not necessary to
prove the factum of marriage strictly. The marriage must be proved to have been
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performed in accordance with the requirements of law, or custom governing the
parties.
When a woman is taken with the consent of the person who has the care of
her, it does not come with in enticing or taking away under section 498.422 No
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court can take cognizance of an offence, under this section, except upon a
complaint made by the husband of the woman, or in his absence, made with
permission of the court, by some person who had care of such woman on the
husbands behalf at the time when such offence was committed.
Consent of wife is no defence to a charge under section 498
Section 498 is intended to protect, not the rights of the wife but those of her
husband and so prima facie the consent of the wife to deprive her husband of his
proper control over her would not be material. It is the infringement of the rights of

418
AIR 1959 SC 436
419
(1968) Cr. LJ. 1352
420
Kanbi Karsan Nanan V. Kanbi Kassan Nanan AIR 1951 Kutch 17.
421
(1933) 35 Bom L.R. 1046
422
Abdul Rahman V. Emperor (1935) 39 CWN 1055
289
the husband, coupled with the intention of illicit intercourse, that is the essential
element of the offence.423 Since the object of the section is to give protection to the
right of the husband it can be no defense to the charge under section 498 IPC that
the wife willingly accompanied the person and so he is not accountable for the
detention.
It is necessary here to make a distinction between section 366
(Kidnapping abducting or inducing women to compel her marriage and 498-A
IPC.

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Section 366 IPC deals with cases wherein the woman kidnapped or abducted

la
is an unwilling party and does not respond to the criminal intention of the accused.
In such a case the accused intends to compel the victim to marry any person
against her will, or to force or seduce her to illicit intercourse. In other words,
section 366 is intended to protect women against such abduction or kidnapping.
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On the other hand, section 498 IPC is intended to protect not the rights of the
wife, but those of her husband and so prime facie the consent of the wife to deprive
her husband of his proper control over her would not be material. It is the
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infringement of the rights of the husband coupled with the intention of illicit
intercourse that is the essential element of the offence under section 498 IPC.424
Law in practice: a socio-legal profile
Now a days cases of husband deserting their first wife and marrying again is
becoming uncontrollable crime, Social pressures and economic compulsions force
the victim to keep quiet. It is not an easy task for the wife to prove the
solemnization of second marriage. There are so many legal hurdles in getting
justice in the way the attitude of the court has not been very co-operative. The
greatest handicap for the wife in proving the offence of bigamy is the requirement
of strict proof of second marriage. The courts are extra careful because of the

423
Alamgir V State of Bihar AIR 1959 SC 436
424
Janendra Nath Day V. Khitisle Chandra dey (1935) 35 CWN 1280
290
serious nature of the offence of bigamy. They convict the offender only on the
basis of reliable evidence. The first thing is to be proved is that the first marriage
was subsisting when the spouse contracts the second marriage.
Men have still found means to defeat the provisions of law relating to
bigamy, deceitful and fraudulent marriages. Innocent women are duped into fake
marriage. Parents fall prey to men who tactfully conceal the fact of their first
marriage and marry their daughters to such persons. Once such a marriage is
solemnized, the life of girl becomes hell and there is no way out. The loopholes

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and the uncertainties of the laws and the long and unending legal battles

la
discourages her even to protest or try to seek justice. She has to submit to all the
indignities because of the social stigma attached to a deserted, divorced or
separated woman.
A new trend to get over the monogamy bar, between a man already married
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and a woman in order to live under the same roof are the various types of
companionship contract or the live in arrangements. They are called by various
names like living together agreement uppatnikarar, kept contract etc425 but
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whatever the name the net result in the same. It provides a solution to get rid of the
first wife without undergoing the formalities of a divorce.
Justice Venkataraniah in his book observed that According to the terms of
the contract the compassion is to provide food, clothing, shelter and other
necessities of life. Most of woman who fall prey to such devices are young and
inexperienced girls. Who consider it to be a valid certificate sanctioning and
protection their rights against the man with whom they want to live, share the bed
and produce children. Since there is no ceremony, there is no bigamy.426 In fact,
Hindu society was so accustomed to bigamy that it does not feel shocked if another
woman enters the matrimonial home and gets pride of place. Legal wife has no

425
S.N. Gupta: The Maitri Karar Or companionship agreement in personal law p. 40
426
Justice Venkataraniah. E.S. women and the law problem and concern of Indian women p. 40
291
option but to give consent thinking it to be a better option than being divorced,
deserted or being turned out of matrimonial home. There are no support from
anywhere to help to wife, to give up much required emotional and physical
security. The family of the wife is not willing to accept the additional
responsibility and does not come forward to lend a helping hand.
A close look to live-in-relationship reveals that it is a device used by men to
escape the provisions of IPC. In fact such live in relationship provide for a parallel
marriage. This contract is simply a fraud upon the woman who is unaware that it is

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not a marriage at all.

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Offences against marriage are becoming a major problem these days. The
impersonal nature of mutual relations and the geographical mobility helps families
to misrepresent the true antecedents of the perspectives husband. Usually the
relatives are known after the daughter is married then it is too late. The girls future
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becomes a major constrain and loopholes of the law become a discouraging factor.
Normally no action is taken against the culprit. Many parents are unable to get
suitable match for their daughters due to dowry demands, such girl get deceived by
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boys who assure them of a respectable life and a life long support.
The shortcomings of the laws, both procedure and substantive relating to
offences connected with marriage result in the culprits going scot free.427 Judge
also treat these issues with leniency and the clever bigamist is discharged. The
customs relating to marriage ceremonies are so varied that uniformity is not only
illusive but impossible. According to shastric law Panigrahan, vivah Homa and
sapatpadi are the most important ceremonies which make a marriage complete
and irrevocable. But the views of various High Court, differs from each other
regarding the importance of these ceremonies According to Dr. Paras Diwawn,
saptapadi is the most important ceremony while Mulla considers both, the
invocation before the sacred fire and saptapadi, equally important. The kerala High

427
Shivrammaya: B. Annual Survey of India 1981 p. 317
292
Court in Chakki v Ayyapan428 held that unless the ceremonies are recognized as
sufficiently ancient, definite and obligatory by the community they do not become
essential ceremonies of a customary marriage.429 There are series of cases where
the apex court has insisted on strict proof of a second marriage. The conservative
interpretation of the word solemnization and the courts insistence to prove the
alleged second marriage with the essential religious rites has often resulted in
injustice to the victim.
The conservative attitude of the court makes the present situation very

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depressing. Legal provision becomes ineffective by a rigid inerprettion. In Shanti

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Mani Devi V. Linegrag Mohaurao430 and Godawari V. State of Maharaastra.431
The court held that even without strict proof of the earlier marriage the provisions
of section 494 IPC can be invoked, but proof of lawful performance of the second
marriage is essential.
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With all respect to the view of court it is felt that they should take note of the
existing social realities and be more liberal in their approach towards this acute
social problem. They should mould the law according to the changed
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circumstances,. The court should not insist on the proper solemnization of the
marriage with all ceremonies. These requirements are the main stumbling block in
any charge of the bigamy or deceitful or fraudulent marriage. Any of these legal
shortcomings can be tactfully used by the clever bigamist to escape prosecution
and the innocent women, mostly victims of circumstances, will continue to suffer.
Advocacy by National Commission for women for more protective to
live-in-partner. A recent legal development has made the life easier for female
live-in partner. The National Commission for women promise a fair deal to
women who have been wronged, and also give them a legal status almost as good

428
(1989) MLR (154) (Ker)
429
Bhaurao Shanker Lokkhande U. State of Maharastra AIR 1965 Sc. 1565 Kanwal Ram V.HP Admin Stration 1966
SC 614 Priya Bala V. Ghosh AIR 1971 SC, Gopal Lal V. State of Ragasthan AIR 1979 SC 713
430
(1982) Cr L.J. 1567
431
1985 Cr LJ 1472
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as of a wife.432 The aim of the National Commission for women is to give greater
protection to live-in partner against exploitation. The Protection of women from
Domestic violence Act as also amended to include protection for live-in-partner
from abuse. The NCW has recommended that other sections of the law be changed
to give greater protection to live-in-partners in case their men leave them without
any financial support.
The question with regard to live-in-relationship come before the
Honble Supreme Court in S. Khushboo V Kaminammal433 (decided on 28-04-

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2010) wherein the court observed While it is true that the mainstream view in our

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society is that sexual contact should take place only between marital partners, there
is no statutory offence that takes when adults willingly engage in sexual relations
outside marital setting, with the exception of adultery as defined under section
497 IPC/ At this juncture the Honble Supreme Court refer to the decision given by
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this case in Lata Singh V. State of U.P. 09434 wherein it was observed that a live-in-
relationship between two consenting adults of heterogenic sex does not amount to
an offence. (with the obvious exception of adultery) even though it may be
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perceived as immoral.
In the above cited case a well known actress from south had excreted
her opinion with India Today a fortnightly magazine who had conducted a survey
on the subject of the sexual habits of people residing in the bigger cities of India.
Wherein she had noted the increasing incidence of pre-marital sex, especially in
the context of live-in-relationship and called for the societal acceptance of the
same. In D. Velusamy V. D. Patchaiammal .435 (decided on 21-10-2010) The
Supreme Court went a step forward to provide recognition and to protect live-in-
partners.

432
The times of india Friday July 4, 2008 p.2.
433
Indian Kanoon- http://indiankanoon.org/doc/1327342/
434
AIR 2006 SC 2522
435
Indian Kanoon- http://indiankanoon.org/doc/1521881
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 The court pointed out that the expression domestic relationship used under
the Protection of women from Domestic violence Act, 2005, includes not only the
relationship of marriage but also a relationship in the nature of marriage The
court further observed that the question, arises as to what is the meaning of the
expression a relationship in the nature of marriage unfortunately this expression
has not been defined in the Act. Since there is no direct decision of this court on
the interpretation of this expression we think it necessary to interpret it because we
think it necessary to interpret it because a large number of cases will be coming up

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before the courts in our country on this point and hence an authoritative decision is
required.

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The court further held that in our opinion Parliament by the Act of 2005 has
drawn a distinction between the relationship of marriage and a relationship in the
nature of marriage and has provided that in either case the person who enters into
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either relationship Is entitled to the benefit of the Act. In our opinion a relationship
is the natural of marriage is akin to a common law marriage. Common Law
marriages requires that although not being formally married:
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(a) The couple must hold themselves out to society as being akin to spouse.
(b) The must be of legal age to marry
(c) They must be otherwise qualified to enter into a legal marriage, including
being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the word
as being akin to spouses for a significant period of time.
The Supreme Court opined that not all live in-relationship will amount to a
relationship in the nature of marriage to get the benefit of the Act of 2005. To get
such benefited the condition mentioned by us must be satisfied, and this has to be
proved by evidence But if a man has a keep whom he maintains financially and
uses mainly for sexual purpose and/or as a servant it would not be a relationship in
the nature of marriage.
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 The Court observed that no doubt the view we are taking would exclude
many women who have had a live-in-relationship from the benefit of the Act of
2005, but then it is not for this court to legislate or amend the law. Parliament has
used the expression relationship in the nature of marriage and not live in
relationship. The court cannot change the language of statute.
The above decision of the Honble Supreme Court is a reflection of
changing scenario of Indian society and this change has been reflected and
recognized by parliament by enacting. The Protection of Woman from Domestic

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violence Act, 2005.

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