Writing the judgment, Justice Sudha said that Section 125 Cr. When the former husband or wife has been continually absent for a period of over seven years and not heard of as being alive, provided that these facts are disclosed to the person with whom the second marriage is contracted: The second circumstance envisages a situation wherein a person has been missing continuously for a period of over seven years. When personal laws or customs governing the parties permit it: Second marriage by a Muslim, who is entitled to four wives, is not an offence under this section. Can children born out of wedlock can inherit father ancestral property? The prosecution must pove to the satisfaction of the Court that the husband or wife as the case may be was alive at the date of the second marriage. Bigamy is an Act of marrying twice without having giving any legal divorce to the first living spouse. In India, Hindus, Christians, Parsis and Muslim women are supposed to follow the concept of monogamy under their personal laws.
The contemplation of the law evidently is that wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. In case women are made punishable for adultery Section 497 would become haven for all husbands and in-laws wanting to get rid of their wives and daughter in-laws at the cost the woman's social status. This also means that law accords sanction to Court to punish the accused while simultaneously declaring that the accused is participating in a void marriage and the fact that is is a void marriage is not a bar to punish him. Otherwise it would be simply an adulterous union and it will not be hit by the provisions of S. If a marriage being a void marriage does not preclude liability on the accused, then other reasons adduced for a marriage being void also does not preclude liability on the accused.
Difference between Adultery and Bigamy: Bigamy Adultery 1. Will bigamy laws be applicable to live-in relationships? Is registration of marriage compulsory? The law does not envisage the punishment of any of the spouses at the instance of each other. The apex court had also said there was no law which prohibits live-in relationship or pre-marital sex. What is the legal opinion for her to come out of this wedlock. In another case Radha Manohari v.
In its opinion only a Hindu man can marry a Hindu woman by Customary Hindu rites. She enjoyed the confidence of Sheetaldeen, who nominated her for his Provident Fund, life cover scheme, pension, life insurance and other dues. If it is not proved properly, the offence of bigamy could not be established. If not, there is no second marriage to begin with and so no second wife and so, no bigamy. In that case the second marriage is valid and so does not constitute this offence. However, such presumption can be rebutted by leading unimpeachable evidence.
In fact this was the very reason why the offence of adultery did not figure in the very first draft. In no case should such a murder be allowed. The Law Commission of India, 42nd Report, Para 20. So why prove a marriage that is already declared void by law a valid marriage unless the Court has wrong notion that Sec. Section 5 of the Hindu Marriage Act, 1955, clearly states that a marriage could be valid only if neither of the party has a living spouse at the time of marriage. Deshpande, Swati; Punishing women won't give results; Sunday Times, 14th Dec 2008, Mumbai Edn; p 5. Chandrasekhar sir, your interpretation is fine and educative.
In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, according to ancient Hindu law , in ancient Greece and in Roman law , only the offending female spouse could be killed and men were not heavily punished. So, he will be considered a Hindu at the time of contracting second marriage post apostasy and provisions of this section will apply. Here the word bigamy is used. This inherent infirmity exists in the pleadings as well as in pre-charge evidence which cannot be cured at the stage of trial and under these circumstances continuance of proceedings will amount to abuse of process of Court. Marrying again during lifetime of husband or wife: 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.
When the first marriage has been declared void by a competent court: In the first circumstance stated in the exception, the previous marriage is not in subsistence in view of the fact that it had been declared void by a court and hence, one of the essential ingredients to constitute the offence of bigamy is absent, and ii. Here The party marrying must inform the person with whom he or she marries of this fact. However, the problem is relating to interpretation of the main section viz. The National Commission for women recommends that adultery should be made merely a civil wrong and the Supreme Court impliedly agrees that husband and a wife should not strike each other with the weapon of criminal law. In short, when parties to a marriage get married under a particular personal law, the marriage will continue to be governed by the personal law under which they got married, irrespective of the fact that either of the spouses have converted to another religion. That is why I am saying the fact of validity of marriage is irrelevant for S. Prior to the enactment of the Hindu Marriage Act, a Hindu man marry more than one wife.
What if the person hides the first marriage and contracts another one? Changing Social Conditions Polygamy in all religions except Muslims, who are legally allowed to have four wives, has ceased to exist and become illegal. The first wife came to know in 2014 about this. As of now I had lost everything My health, wealth, reputation in local area due to her mental behavior. The offence depends upon the proof of the second marriage during the subsistence of the first marriage. The Registrar is normally some type of magistrate.