Definition
Contracting a second marriage while the first subsists.
Offence of marrying again during the lifetime of spouse without the first marriage having been dissolved.
Statutory Definition
Bharatiya Nyaya Sanhita, 2023, Section 82 (formerly IPC, Section 494); Hindu Marriage Act, 1955, Section 17.
Etymology & Origin
From Greek 'bigamos' (doubly married — 'bi', two, and 'gamos', marriage). 'Bigamy' is the state of having two marriages simultaneously — being married to two people at the same time, which is prohibited in all modern legal systems that recognise monogamous marriage.
Full Legal Analysis
Bigamy is the offence of marrying again while a valid prior marriage subsists and the first spouse is alive. Section 82 of the BNS, 2023 (formerly Section 494 IPC) provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine. Section 17 of the Hindu Marriage Act, 1955 similarly declares bigamous marriages void.
Essential ingredients of bigamy: (1) A valid and subsisting first marriage — if the first marriage is void (for any reason under the applicable law), there is no bigamy; (2) The first spouse is alive — if the first spouse is dead or if there is a valid divorce decree, the second marriage is lawful; (3) A second marriage is contracted — the second marriage must comply with the essential ceremonies of the religion; and (4) The second marriage is contracted while the first subsists — the simultaneity of both marriages is essential. Exception under Section 82 BNS (Section 494 IPC): the offence does not apply where the first marriage has been declared void by a court, where the first spouse has been continually absent for 7 years and is not known to be alive, or where a divorce decree has been obtained.
The Supreme Court held that for the offence of bigamy under Section 494 IPC (now Section 82 BNS), the second marriage must be a valid marriage as per the essential ceremonies of the religion of the parties. A mere going through of some form of marriage ceremony without the performance of the essential ceremonies does not constitute a 'marriage' for the purposes of Section 494 IPC. In this case, a Hindu man married again in a ceremony that did not include the Saptapadi (seven steps) — the essential Hindu ceremony — and was held not guilty of bigamy. This case is significant as it establishes that only a ceremony that constitutes a valid marriage triggers the bigamy offence.
Bigamy under Muslim law: Under Muslim personal law, a Muslim man may legally marry up to four wives simultaneously (polygyny), subject to conditions including the ability to treat all wives equally. The BNS Section 82 (and IPC Section 494) apply only where the second marriage is 'void by reason of its taking place during the life of the first spouse' — a Muslim second marriage is not void and therefore does not attract Section 82. Christian and Parsi men are prohibited from polygamy by their personal laws and the general criminal provision.
For advocates, bigamy cases involve: (1) establishing the validity of the first marriage — without a valid first marriage, there is no bigamy; (2) proving the performance of essential ceremonies in the second marriage; (3) the 7-year absence exception — where the first spouse has been absent for 7 years and is not known to be alive; (4) divorce decree as a complete defence — a valid divorce decree extinguishes the first marriage; and (5) Section 17 HMA void marriage — the second Hindu marriage is void ab initio, with consequences for the children's legitimacy and maintenance rights of the second spouse.
This Term in Indian Statutes
Bharatiya Nyaya Sanhita, 2023, 2023
"Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Bhaurao Lokhande: essential ceremonies must be performed for second marriage to constitute bigamy; 7-year absence exception; HMA Section 17 void second Hindu marriage; Muslim personal law polygyny not bigamy
