Have you watched the 1998 Bollywood movie “Gharwali Baharwali” starring Anil Kapoor, Raveena Tandon and Rambhaa? If not, let us narrate the story in crisp. It is about a couple who cannot have a child. The husband witnesses an unfortunate incident sprouted through some orthodox traditions and ends up marrying another girl in secrecy, while he was still married to his first wife. What you need to know that contracting a another marriage while the former husband or wife is still alive, not only lacks any value in the eyes of law, but is also punishable. The offence of bigamy can land a person in jail for up to 7 years, or even 10 years. Hence, explore what is bigamy in Bharatiya Nyaya Sanhita to align with the new laws in India and stay on top of things.
What is Bigamy?
While the term is used more frequently, people are often unaware of the literal meaning of terms like bigamy or polygamy. It Is derived from the Greek word “gamous”, which means “reproductive organs” for scientific purposes and “marriage” for social purposes. Here, in Bigamy, BI denotes TWO, and GAMY denotes marriage. Hence, Bigamy means two marriages or second marriage.
Bigamy in Indian Law
If asked for bigamy meaning in law, the term has not been used expressly in the criminal laws. Therefore, bigamy has not per se been defined. While the Indian Penal Code or the Bharatiya Nyaya Sanhita do not use the word “bigamy” anywhere, the family laws through the Special Marriage Act, Hindu Marriage Act, mention the punishment for bigamy. This provision is the bridge or connect wherein marriage in bigamy is declared void in family law, and the punishment has been mentioned for bigamy as per the stipulated provision under BNS.
Bigamy in IPC
Offences related to marriage were discussed under Chapter 20 of the Indian Penal Code, 1860. Section 494 of IPC stipulated the offence of marrying again during the lifetime of the husband or wife and punished the same with imprisonment up to 7 years with fine. On the other hand, Section 495 further sought to punish the concealment of former marriage from the person with whom subsequent marriage took place. In this case, bigamy punishment was expanded to a maximum of 10 years along with fine. The law on bigamy remains the same in the new criminal laws, since the provision has been adopted as it is in the Bharatiya Nyaya Sanhita. Just the renumbering of Sections in the redesigned criminal manual changes.
Also read the landmark Lily Thomas Bigamy case
Bigamy under BNS – Bharatiya Nyaya Sanhita
Section 82 of Bharatiya Nyaya Sanhita, 2023 sums up the provision as bigamy in IPC contemplated under Sections 494 and 495
82. Marrying again during lifetime of husband or wife. – (1) 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.
Comment: The former part of the provision under Section 494, famously termed as bigamy, has been encapsulated under sub-section (1) of Section 82 of the BNS. It states that any person who has a husband or wife alive, and proceeds to marry again is liable under this Section. The maximum punishment for bigamy in this case is 7 years along with fine. What’s laid so far regarding the offence of bigamy is not absolute, and there is an exception as well, as discussed below.
Exception.—This Sub-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 of the 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, 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.
Comment: While stipulating what constitutes the offense of bigamy under Bharatiya Nyaya Sanhita, the legislature kept open the scope of extreme scenarios in a marriage. For example, if a person’s former marriage has already been declared as void by the Court, a subsequent marriage would not attract the clutches of bigamy under Section 82 of BNS. In addition, if the whereabouts of a husband or wife have been unknown for the past 7 years, and the spouse does not even know whether the person is alive, as per those who must have heard from that person, a subsequent marriage won’t be an offence. In the latter example here, the spouse with whom a subsequent marriage is being contracted should be aware of the situation regarding the whereabouts of the former spouse.
(2) Whoever commits the offence under sub-section (1) having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Comment: This part encapsulates the offence defined under Section 495 of the Indian Penal Code. Considering the seriousness of the act of bigamy, the provision seeks to punish anyone who commits bigamy, and the person with whom subsequent marriage is being contracted is totally unaware of the person being already married. In other words, if X has a wife Y and proceeds to marry Z without divorcing Y, and without informing Z about his marriage with Y, then an offence is committed under Sub-Section (2) of BNS Section 82.
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Immunity from Bigamy Punishment
While most of you must be aware that Indians follow their personal laws when it comes to marriage, divorce, etc. That is because the Uniform Civil Code is yet to be enforced in India, while Goa and Uttarakhand somewhat being the exceptions. The context here is to bring in light the fact that the Muslim Law allows polygamy wherein men can marry four times without having to divorce or being a widower. Hence, a Muslim man can have 4 wives at a given time. Since the personal laws allow, bigamy in Bharatiya Nyaya Sanhita is not punishable for Muslims.
