Bigamy and Hindu Law
Marriage in modern culture is, without question, a personal relationship between the parties and a matter of their private affairs, but it also serves as a social institution with complex social implications. Since the beginning, the institution of marriage has been given top priority among Hindus because of a number of reasons for social, spiritual, and religious purposes.
However, giving the law of divorce an inappropriate amount of importance is an attempt to destroy everything positive about Hindu culture. Even if we treat marriage as a simple contract, the parties to the marriage cannot be claimed to have interests that should be taken into account during a divorce.
The wider communal interest should take priority over the participants’ individual interests. Hindu marriage is seen more as a ceremony than a binding societal agreement. The nature of Hindu marriage has been the subject of many different viewpoints.
Section 13 of the Hindu Marriage Act of 1955 provides for the option of divorce in modern Hindu society. Prior to the passage of the Hindu Marriage Act of 1955, divorce was unheard of among Hindus. In Section 7 of the Hindu Marriage Act, emphasis is placed on solemnising marriage by adhering to specific customary rites and ceremonies of either party to the marriage, further establishing Hindu marriage as a sacrament.
According to the Supreme Court, the two essential conditions for a traditional Hindu marriage are making an invocation of the sacred fire and conducting Saptapadi in its vicinity. Customs that do not require the completion of the aforementioned rites can yet result in marriages that are recognised by law and give rise to legal relationships that are acceptable by law.
In this research paper, attempts are made to identify the subtleties of bigamy in Hindu weddings and to make the case for making bigamy a crime.
Additionally, efforts are made to suggest remedial actions while taking into account the sufferings of women in such relationships that are coming under the jurisdiction of the legal framework of marriage and socio-legal circumstances of children born out of such relationships.
Essentials of Valid Hindu Marriage
The Hindu Marriage Act, which codified the law of marriage among Hindus and made it available in writing, was modified in 1955. Section 5 of the Act outlines the fundamental conditions for a legally binding Hindu union.
The Act of 1955, which established essentials for marriage in Section 5 and introduced monogamous marriage for the first time among Hindus, states in Section 5(i) that a marriage is monogamous if “neither party has a spouse living at the time of the marriage.” However, no marriage may be solemnised without complying with Section 5 of the Act’s requirements; however, Section 7 of the Act provides for the legal solemnization of a Hindu marriage, which states that “a Hindu marriage”
The legal provision for the solemnization of a Hindu marriage is provided in Section 7 of the Act, which states that “a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.” However, no marriage may be solemnised without fulfilling the requirements of Section 5 of the Act.
As a result, no Hindu marriage can be regarded as legally solemnised until Section 5 of the Act’s essential conditions have been met and Section 7 of the Act’s requirement that the marriage be solemnised in accordance with the parties’ traditional rites and rituals has been met.
However, prior to the implementation of this Act, two fundamental components were needed to create a legally binding union under Hindu law, as stated in the Shastras: the bride’s gift, or Kanyadana, in one of the four forms that had been approved; the transfer of dominion for payment in the “Asura” form; and the bride and groom’s mutual consent or agreement in the “Gandharva” form.
These must be supplemented by the actual performance of the marriage by following the Grihyasutras’ form, of which “Panigrahana” and “Saptapadi” are the essential components. There should be a marriage rite in the format required by the Shastras for both the “Rakshasa” and “Paisacha” forms. The religious component is this.
A marriage must have both secular and religious components in order to be valid. Therefore, the intended marriage must be solemnised with proper ceremonies and in due form after the essential conditions for a valid marriage specified in Section 5 of the Act are satisfied. In the paragraphs that follow, a solemnization of a legal Hindu marriage is analysed.
Marriage and bigamy are formally sanctified
to Section 7 of the Hindu Marriage Act of 1955, a Hindu marriage shall be performed in line with the traditional ceremonies and rituals.
The definition of “solemnise” is “to celebrate the marriage with proper customary rites and ceremonies and in due form.” A marriage cannot be referred to as “solemnised” unless this is done.
The Act leaves it up to the parties to decide on their rituals in accordance with their traditions and usage rather than prescribing any ceremonies as necessary for the solemnization of a marriage. According to Section 7(1) of the Hindu Marriage Act, “a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto,” a Hindu marriage may be performed in accordance with either party’s traditional rites and ceremonies.
More specifically, Section 7(2) of the Act provides that “where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding upon the taking of the seventh step.”
Therefore, the two main considerations when determining whether either party to the marriage has committed bigamy are the proper performance of customary rites and ceremonies and the solemnization of the marriage in accordance with the law. Simply performing certain rituals with the intent that the parties involved be deemed married will not qualify the ceremonies as legal or acceptable according to any accepted custom.
The requirements for a valid custom, regardless of whether it pertains to a caste, subcaste, locality, or family, are that it be old, certain, and reasonable. It also cannot be expanded beyond the usage by parity of reason, as it is usage, not reason, that establishes a rule.
Bigamy As An Offense In India
Technically speaking, none of India’s laws recognise the term “bigamy.” However, it has been broadly defined as the act of getting married to someone while you are still legally wed to someone else, as well as a second marriage that someone has while they are still living with their partner and while their first marriage is still in force.
In essence, bigamy is not just a reason for divorce. It is also a crime, which voids the marriage and eliminates the need for the parties to petition for divorce. Although on the surface it appears that bigamy is a crime that is against the law for everyone in the nation, that does not appear to be the case.
The country’s citizens’ personal laws are more important than the Penal Code. Therefore, even though bigamy is strictly prohibited by the law, it will not be punished if the personal law permits it. For instance, even though bigamy is prohibited for Christians, Parsis, and Hindus (as collectively defined in the Hindu Marriage Law).
However, since bigamy is permitted by Islamic personal law, Muslims are not prohibited from engaging in it. Polyandry is strictly forbidden, though. The primary factors that make bigamy a punishable offence are the social stigma associated with not being the only wife, or even worse, the second wife, the lack of legal recognition of the relationship, which is the main benefit of two people getting married, and the horrendous suffering experienced by the wife as a result of her husband’s adulterous relationship.
Furthermore, especially in terms of succession and property, the second wife and her children, both male and female, will receive zero recognition.
Bigamy-based regulations have a long history, as does the practise itself, dating back to the Vedic era. Since then, monogamy has always been the norm, but it has persisted with the exception of polygamy, which is essentially a marriage in which the husband has more than two wives who are still alive.
One of the main sources for the Hindu Marriage Act of 1955, the Manusmriti, has sections that blatantly imply that a second marriage was legal when a wife was barren, ill, or vicious. However, only the first wife who was matrimonially wed and not the second would be regarded as a wife. In a more subtle way, the first wife held priority over the other, and her first-born son had priority over the other sons of the husband.
Simply put, the other spouses were viewed as a higher class of concubines. But over time, the courts under British rule decided that a Hindu man could wed a second time while his first marriage was still going strong without his wife’s permission or any other justification. But later, a number of laws were passed that classified bigamy as a crime. Most of these laws were personal in nature.
The Madras (Bombay Prevention and Divorce) Act and the Bombay Prevention of Hindu Bigamous Marriage Act were both passed to make sure that bigamy-related punishments would be applied to men in Bombay and Madras, respectively. Polygamy was sternly outlawed and rendered illegal by the Parsi Marriage and Divorce Act, which was created exclusively for the Parsis in India.
Insofar as the marriage was solemnised in accordance with the requirements and conditions of the Act, the Special Marriage Act and its revised provisions from 1923 also brought about regulations that forbade bigamy. All Hindus, Buddhists, Jains, and Sikhs must practise monogamy in accordance with the Hindu Marriage Act of 1955, which was inspired by and based on the Manusmriti.
According to the Act, a Hindu man who marries a second woman while his first wife is still alive will be punished under Section 494. But regrettably, Muslim law permits polygamy under their own personal laws even though it does not recognise polyandry.
The Sharia law is referred to as the supreme law for Muslims in the Shariat Act. According to the Quran, which is followed by Muslims, a man may marry up to four women at once, but only if he is able to care for them. Bigamy is therefore currently prohibited by all religions and their personal laws, with the exception of Islam.
Bigamy as a Reason for Divorce in Modern Times
Bigamy is currently a crime for all religions, with the exception of Islam or Mohammedans, as was previously mentioned. When it comes to the punishment for having a second spouse while the first is still alive, both the Indian Penal Code and personal laws are gender-neutral.
The offence of bigamy must have a few certain components in order to exist.
The spouses must have been legally wed before the accused entered into the ostensibly bigamous marriage, which is the first requirement. If the first marriage that the parties entered into was a void marriage from the start, the indictment will not stand. The second marriage shall triumph in such circumstances.
The legality of the marriage primarily rests on two factors: the laws of the nation in which it was performed and the rites that must be performed in accordance with the traditions of the couple’s specific community.
The Hindu Marriage Act will dictate the ceremonies that must be held for Hindus, Buddhists, Sikhs, and Jains. The Parsi Marriage and Divorce Act governs marriage and divorce for Parsis, whereas the Indian Christian Marriage Act applies to Christians. Mohammedans and Jews will be subject to their own personal laws.
For weddings that do not fit into one of the aforementioned categories, the Special Marriage Act will be in effect. According to Section 5 (i) of the Hindu Marriage Act, neither party must have a spouse who is still alive at the time of marriage in order for the union to be legal.
Section 11 stipulates that bigamous unions are null and void, while Section 17 defines the penalty for such unions. The word solemnised in this section emphasises the need for ceremonies to be held in order for the marriage to be valid. Neither party is required to have a spouse present at the marriage, according to Section 60 of the Christian Marriage Act.
The husband must have remarried is the second requirement. The most important component is the second marriage. This circumstance is what initially qualifies as an offence. If the charge of bigamy is to be pursued, it is crucial that the second marriage’s characteristics be such that it would succeed even if the previous marriage didn’t exist. In other words, the union must be recognised by the local communities’ personal laws.
The first marriage must be legal according to both local law and the ceremonies and customs, while the second marriage simply needs to be legal in terms of the ceremonies in order for it to be a bigamous union and thus invalid.
The courts ruled in Payari v. Faqir Chand Alakha that a second marriage to the individual in question need not be otherwise legally recognised in order for bigamy to be charged as a crime.
In the event that either of the two marriages is discovered to have been improperly solemnised, the position would be that there is only one legal and valid marriage in the eyes of the law, rendering the accusation of bigamy unsupportable. However, the validity of the form of marriage is required in the case of both marriages.
Polygamy versus bigamy
Bigamy and polygamy coexist in the same pond as each other. These two have to do with getting married more than once. However, the meanings and applications of these two words differ. When a person who is lawfully married marries again while their first spouse is still alive, it is considered bigamy and is a crime. Contrarily, polygamy is not seen as a crime.
However, having multiple wives at the same time is a religious custom. In polygamy, every spouse is aware of the existence of the other spouses, however in bigamy, the spouses are unaware that their husband has remarried.
Additionally, while polygamy is accepted as legal in some nations like Pakistan, India, etc., bigamy is not considered legal in almost all nations. There is no penalty for polygamy, although there are numerous personal laws and codified laws that specify bigamy’s penalties.
Marriage laws and succession laws
In accordance with the Hindu Law of Succession, the first wife will be the legitimate successor to her husband’s ancestral property in the event of a second marriage within the first wife’s lifetime. There will be no property obligations for the second wife. If the marriage is ruled invalid, the second wife cannot demand maintenance. The second wife’s children, however, are entitled to a portion of the inherited wealth.
Effect of Bigamy on Women’s Rights
Due to the patriarchal nature of our society, bigamy has an uneven impact on men and women. In many communities, polygamy is still common. In addition, unlike polygyny, which is seen as a privilege and right of men, polyandry in patriarchal societies is seen as a woman’s duty to provide men access to her portion of the bed.
The remedies available to women in situations of bigamy are constrained under the Hindu Marriage Act. The Supreme Court ruled in Priya Bala Ghosh v. Suresh Chandra Ghosh that the claimant, or the first wife, is responsible for demonstrating the second marriage. In the current case, the husband was found not guilty, and the wife received no financial recompense.
As was previously indicated, second weddings typically occur covertly, therefore asking the woman to provide evidence of such a marriage is ludicrous. The rituals of a pluralistic society were crushed by the Supreme Court in the name of uniformity, which resulted in the exploitation of women.
In cases of bigamy, the Hindu Marriage Act does not effectively represent the second wife’s rights. Due to the difficulty to establish the validity of the second marriage, courts have refused to recognise the rights of the second wife in bigamy cases. The second wife is not entitled to receive support if the second marriage is deemed invalid by the courts, unless the husband and wife have been living together for a considerable amount of time.
As this matter has been litigated, the courts’ positions have evolved. The second wife in Kulwant Kaur v. Prem Nath was given temporary relief while the courts decided whether the marriage was valid. Women continue to suffer due to legal loopholes even if the courts have revised their attitude on the problem of bigamy. If a marriage is declared invalid, the judge may choose to grant relief to the accused’s second wife.
The social realities may not be taken into consideration by the judge while making a judgement. The Hindu Adoption and Marriage Act must be amended to include a clause granting relief or maintenance to the women who suffered as a result of the marriage in order to fully solve this problem. Only a revision of the procedural as well as the substantive law will affect the judicial perspective on bigamy cases.
The court has adopted the position that the second wife is not entitled to support under Section 25 of the HMA in decisions like Savitaben Somabhai Bhatiya v. State of Gujarat. The court ruled that adding a woman who is not legally married to the definition of “wife” will not expand the reach of the rules. A common legal tactic is to refer to the woman as a domestic servant, mistress, or ‘keep’ rather than the wife with rights, status, and entitlements.
The statutes’ omissions and gaps must be remedied in order to limit judicial overreach in certain situations. To defend the rights of the women and children who are subjected to the vice of bigamy, rules relating to the inheritance rights of the second wife and the legitimacy of children born out of invalid marriages should be established.
According to Section 494 of the Indian Penal Code, bigamy is fundamentally a crime. But in England, monogamy is the standard and lone practise for all marriages, the situation there is technically different from that in India. In India, the personal laws, customs, and practises of the various communities determine whether or not a second or subsequent marriage is unlawful or subject to an indictment.
The personal rules ultimately determine whether bigamy is bad for the community or not, even though the Penal Code makes it illegal and punishable. The practise is legal for that particular community, such as Muslims, if the personal law permits it. When a second marriage is illegal, it essentially means that the original marriage is being disowned. Bigamy is forbidden by law in order to deter the practise and guarantee that the first wife is never abandoned. However, it has been argued in court that if the husband is imprisoned, it will be impossible for the couple to ever live together in their first marriage.
However, the husband has committed an offence, and since the offence will be completely void if he is not punished, this fact must be taken into account in order to justify the punishment. A unified civil code regarding bigamy must exist for all castes and religions, as has also been argued in the cases of Lily Thomas and Sarla Mudgal.
There wouldn’t be any inconsistencies in practise or violations of Articles 25 and 26 if the laws were consistent. The decision that a married non-Muslim who converts to Islam is prohibited from being married again without first dissolving his previous union complies with both the letter and the spirit of Islamic bigamy legislation.
Gender has no bearing on the practise of getting married outside of unions. The Malimath Committee suggested the implementation of a standard civil code, but given that bigamy is the incriminated offence, doing so is essential to reducing the offence.
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