Gunvi Rattra, O.P. Jindal Global University
ABSTRACT
This article overviews the different laws of the Hindu Marriage Act, 1955, with a special emphasis on the issue of bigamy. Identifies and analysis loopholes which are used by Hindu husbands to save themselves from conviction. With the help of landmark cases, it is discussed how different religious marriage ceremonies are performed and how they are seen in a varying perspectives by respective communities. The essay ends with an analysis of the effectiveness and acceptance of the statutory laws and a comparison with what happens in practicality.
Introduction
Bigamy is the act of marrying more than one person. The law prohibiting it was introduced in India in 1955, before that the act of marrying more than one woman was considered valid. After the introduction of the principle of monogamy through the Hindu Marriage Act, 1955[1] bigamy was expressly prohibited for Hindus, Buddhists, Sikhs and Jains who under Indian laws are governed by their respective Personal Laws. “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 Code, 1860 (45 of 1860), shall apply accordingly”.[2] In India, bigamy is a cognizable and non-bailable offence. According to Section 494 of the Indian Penal Code, 1860 bigamy is punishable with a fine and imprisonment which could extend to 2 years.[3] Even with all these provisions errant husbands find a way to “escape both from the criminal consequences of a bigamous marriage and from the economic responsibility of either of the wives”.[4] The Hindu Marriage Act has various provisions that explore the law of marriage with regard to bigamy which are analysed with different perspectives. The scope of this essay is not to cast a judgement on the provisions but rather to analyse them from various perspectives.
To prosecute an individual for bigamy the second marriage needs to be proven valid by the wife (plaintiff). The marriage should be in accordance with Section 5 of the Hindu Marriage Act that mentions the conditions for marriage, “neither party has a spouse living at the time of the marriage”[5] and Section 7 that mentions the ceremonies required to solemnise a marriage, “customary rites and ceremonies of either parties thereto.”[6] To convict a man under section 494 of the Indian Penal Code, three requirements need to be met, (i) First marriage; (ii) a Second marriage while the first marriage is still persisting and (iii) both the marriages should be valid with the essential religious ceremonies performed. The ‘customary rites and ceremonies’ mentioned strictly are only Saptapadi and Homa which are considered by the courts or a ritual which has been “continuously and uniformly observed for a long time”.[7] This leaves no recognition for the newly formed communities and groups. In Shakuntala v Nilkanth[8]the wife filed a complaint, but the first marriage which was hers was not held valid. This was due to the fact that the marriage took place with Buddhist rites which did not include Saptapadi and Homa, and the rites which took place were not observed for ‘a long time’ since the plaintiff herself stated that they were practiced only for the last 10-15years. Therefore, they did not meet the requirements of the law and the plaintiff’s marriage was deemed void and the husband was acquitted by the high court. Judgements like these dissuade wives to file complaints since they don’t want to risk their own marriage being invalidated by the court and as a result lose their maintenance rights. This leaves women powerless.
An important case is Bhaurao Shankar Lokhande v State of Maharashtra[9]in which the first wife stated that the second marriage was performed in the Gandharva form which was the common norm in the region. The respondent pleaded that any form of marriage should lead to conviction if there is already a subsisting marriage. The rituals of such a ceremony did not once again include Saptapadi and homa. The final appeal at the Supreme Court acquitted the husband and the second wife on the basis that the ceremonies which were required for solemnisation were not performed. Legally, the second marriage was void but both the husband and wife of the second marriage were accepted as a couple by the society and lived together as a domestic unit. In both the cases mentioned, the rituals and ceremonies which took place were the prevalent ones of their respective regions and thousands of marriages took place which were recognised by the society but were not recognised by the higher courts. In both the cases the Trial courts of the region held the defendant guilty because the judges were aware of the traditions and rites of the region and understood it with context. But after the appeals, the high court/supreme court upheld the misogynistic and Brahmanical rituals without considering the actual situation. This is because the higher judiciary cannot in “anyway relate to the cultural realities of the people whose lives and legitimacy they determine”.[10] These judgments are problematic because they are considered as precedents and have affected the judgments of many other cases like that of Kanwal Ram and ors v The HP Administration[11] which establishes that admission by the husband and the second wife and even the husband and wife living together as a domestic unit cannot be considered sufficient evidence to prove bigamy.
Another way in which husbands enter into bigamous relationships is by converting into Islam since bigamy is not an offence and is lawfully allowed by the Islamic religion. A leading case is the Sarla Mudgal and ors v Union of India[12]in which the president of a society ‘Kalyani’, Sarla Mudgal, brings forward four cases, all of them of the same nature. The women were left by their husbands to marry someone else but before that they converted to Islam to escape the section 494[13], Indian Penal Code. One out of the four petitioners were persuaded by her husband to convert to Islam in order to marry but her husband converted back to Hinduism to maintain his first wife and the petitioner was left out to dry. This case depicts how husbands undergo conversions for the sole purpose of carrying out a second marriage. It was held that, by converting into Islam the first marriage is not dissolved under the Hindu Marriage Act and the second marriage will be declared as void which results in the husbands’ conviction under the Indian Penal Code for bigamy. The courts also depicted how the uniform civil code was a necessity. But application of the uniform civil code would do more harm than good because it would violate the fundamental right of freedom to profess any religion[14]. It is absurd to enforce specific rituals onto every single community in a country which is so diverse, especially those rituals which were traditionally practiced only by higher castes of specific regions.
Back in 1955, this statute was codified to decrease the number of bigamous marriages. In 1974 a survey was conducted by the Committee on the Status of Women, Towards Equality and it stated that in the period of 1951-60 the data on polygamous marriages was as such: Hindus-5.06%, Muslims – 4.31%.[15] Since, the population of Hindus is way more than that of Muslims it is evident that the polygamous marriages among Hindus did not get affected even after the prohibition by the Hindu Marriage Act, 1955. When religious scriptures reinforce the practice of polygamy, citizens do not believe that they did something wrong, either because they are not aware of the prohibition or they find loopholes to do it anyway. Prior to 1955, since bigamy was corroborated by ancient Hindu customs and rites, women in marriages which were bigamous had the right to residence and maintenance. After bigamy was illegalised, women lost their resort to ask for maintenance, legitimacy and even their respect in the community because bigamy is still a practice in the real world. There is particularly no mention of what the rights of children out of bigamous marriages are.
The effectiveness of this law is questionable since it did not bring about the social change that it aimed to bring because the community doesn’t consider it legit. In the cases discussed before, all the marriages and ceremonies were performed in a public view with the complete participation of the community members which shows that no one considers this act as wrongful and there is massive support given to bigamy by family and community. The non-inclusiveness of the statute and the attempt to create a uniform code did not benefit the anyone, it basically validates husbands living in polygamous marriages until he does not perform homa and saptapadi.
The fact is that all the diverse communities in India do not happen to perform these two supposedly ‘essential’ rituals as a part of their marriage ceremonies which gives a free path to husbands who wish to practice bigamy. The disadvantages are suffered only by women, either the first wife or the ones who come after that. They both risk invalidating their own marriage during trial since at the end the husband is redeemed of all economic liabilities of either one of the marriages. Provisions should be setup to be more inclusive of all the communities to fill the gaps of the loopholes. Also, it should be explicitly implied that conversion of religion does not mean that they can marry another woman unless the previous wife is divorced. Looking from these viewpoints the Section 17[16] of the Hindu Marriage Act is more of a farce and gives Hindu marriage an illusory nature.
[1] Hindu Marriage Act, No.25 of 1955. India Code. [2] Hindu Marriage Act, 1955 § 17. [3] Indian Penal Code, No. 45 of 1860, Pen. Code § 494. [4] Flavia Agnes, Hindu Men, Monogamy and Uniform Civil Code, 30 Econ. Polit. Wkly. 3238–3244 (1995). [5] Hindu Marriage Act, 1955 § 5. [6] Hindu Marriage Act, 1955 § 7. [7] Hindu Marriage Act, 1955 § 3(a). [8] Shakuntala v Nilkanth, Mah LJ 310 (1973). [9] Bhaurao Shankar Lokhande v State of Maharashtra SC 614 (1966). [10] Agnes, supra note 4. [11] Kanwal Ram and ors. v The HP Administration, SC 614 (1966). [12] Sarla Mudgal and ors v Union of India, 3 SCC 635 (1995). [13] Indian Penal Code, supra note 3. [14] India Const. art. 25. [15] Agnes, supra note 4. [16] Hindu Marriage Act, supra note 2.
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