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Introduction

At first sight, there appears to have been a violent clash of tradition and modernity over bigamy and it would appear that modernity has decisively won it. In India Post-colonial Hindu law abolished bigamy by statute in 1955 and appears to follow modern principles and legal models. However, triumphant modernist declarations of legal and moral victory in this field cannot ignore the fact that in social reality bigamous arrangements of various kinds remain operative among Hindus and are legally condoned in a variety of ways. Here bigamy is reflective of pre-modern barbarism and monogamy symbolizes civilisation, enlightenment, modernity and progress. Hindu tradition represents cultural evidence of permission for Hindu men to engage in numerically unlimited polygamy, while Hindu women appear to have no such right. It was deemed essential, in the view of modernists, that Hindu bigamy should be completely outlawed. It was certainly easier to prohibit polygamy for men than to allow polyandry for women, and human rights arguments were used to justify the formal abolition of Hindu polygamy. This paper seek to understand the underlying principle of bigamy and it being one of the ground of getting divorce under various different Acts; and also to dig upon a little the flaws present in the various acts which gives room to bigamy sans right to the second wife and its consequences. However, modernity also stands for free choice and individual discretion. Since both men and women all over the world are known to engage in various forms of sexual relations outside the formal framework of marriage, despite numerous taboos and prohibition. Is it really desirable that the state should aim to exercise full control over this field?

History

The colonial law of India, certainly as far as the general law and Christian and Parsi personal law are concerned, responded to Christian and modernist challenges by asking the government for the legal abolition and criminalization of polygamy for their communities.1 A similar process can be observed under the Hindu law reforms during 1955-56. The only pocket of resistance in Indian law today concerns continued official condonation for Muslim polygamy, as an alleged traditional ‘religious right’ of Muslim men to have up to four wives at the same time continues to be respected by the post-colonial Indian legislature. Bigamy is not a ground of divorce under Muslim Law2. Towards the end of the colonial period, however, indigenous reform movements, influenced by Christian views on polygamy among Hindus. While various local Acts were promulgated during the 1940s, bigamy was finally banned for Hindus by the HMA of 1955 and was a criminal offence under the existing relevant provisions of the IPC of 1860. The outcome of cautious judicial intervention, which appears to have been purposefully hidden from view owing to the politicization of the debates over polygamy.3 The Hindu law on polygamy has thus moved

1 According to Parsi Marriage and Divorce Act,1865 and Indian Christian Marriage Act,18722 Werner F. Menski, Hindu Law Beyond Tradition and Modernity, Second Impression 2009, Oxford India Paperbacks3 Sarla Mudgal v. union of India AIR 1995 SC 1531

beyond condoning ‘tradition’ as well as blind adherence to modernist axioms of formal abolition. It now lies in a condition of postmodernity, drawing from, and yet ultimately discarding, both positions to maintain justice in a heavily contested field.

Hindu Law on Bigamy: Also under British reign

Traditional Hindu law permitted polygamy to men in certain situations and on certain grounds. In this Hindu Law is similar to Islamic law in approach as well as to Chinese law and African laws all of which tolerate polygamy to certain extent. Muslim invaders were to a large extent blamed for bringing in bigamy in India. The basic framework of British legal policy as laid down in 1772 by the Warren Hastings Regulation, effectively guaranteed Hindus and Muslims non-interference by the British in matters of family laws. Polygamy was treated as a matter of marriage law and fell within the ambit of ‘religion’ and local social regulation under the personal law. Hindu polygamy was protected under the system of legal administration, while attention was given to other perceived social problems, such as the abolition of sati, or permitting widow remarriage, despite traditional Hindu reservations, through the Hindu Widows’ Remarriage Act, 1865.

In Jeebodhan v. Sindhoo4 and Sitanath v. Haimbutty5 , the husband had married a second time, but this was not treated by the court as cruelty against the first wife. In Dular Koer v. Dwarka 6, a Hindu husband had introduced a low-caste mistress as a concubine into a matrimonial house, to live as a member of the family. The wife was then driven out of the house, which the Calcutta High Court treated as cruelty. Thus in those times cruelty played a role and not bigamy in the society. Similar was in the case of Joseph v. Joseph7 and Itwari v. Asghari.8

The Hindu Married Woman’s Right to Separate Residence and Maintenance Act of 1946, which became a law on 23 April 1946.9 Under this Act one of the grounds for a Hindu wife to ask for a separate residence and maintenance from her husband was if the husband had married again, or kept a concubine in the house. This was considered to be bigamous. Bombay Prevention of Hindu Bigamous Marriages Act, 1946 and the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 ‘provided improvements in marital life of Hindu women’. The Bombay Hindu Divorce Act of 1947 permitted a Hindu wife to petition for divorce on the ground of husband committing bigamy.

4 Jeebodhan v. Sindhoo (1872) 17 WR 5225 Sitanath v. Haimbutty (1875) 24 WR 3776 Dular Koer v. Dwarka (1907) 34 Cal 9717 Joseph v. Joseph AIR 1934 Pat 4758 Itwari v. Asghari AIR 1960 All 6849 Now part of HAMA, 1956

Statutory Regulation of Hindu Polygamy

Bigamy is a post nuptial matrimonial offence. It provides grounds for divorce of an existing marriage, annulment of a subsequent marriage and charging the spouse for committing a criminal offence under a legal system which recognizes monogamy only. For the purposes of criminal offence, ‘bigamy’ has been defined in section 494 of the Indian Penal Code10.

The Indian Divorce Act, 1869, does not give any definition of bigamy. Instead of that definition the act provides us with two definitions, viz., ‘bigamy with adultery’ and ‘marriage with another woman’ but there is nothing like a third definition on ‘marriage with another woman with adultery’.

The Hindu Marriage Act, 1955, under Section 13 provides:

“(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition.

It is provided by this section that if a man had married more wives than one before the Hindu Marriage Act came into force, then every wife was given a right to seek divorce from the husband on the ground of is pre- Act remarriage: the first wife on the plea that her husband married again during her lifetime and the second wife on the plea that her husband married her when he already possessed a wife.11 In cases for polygamy this ground may be a double edged sword for the intermediate wives.

There is a condition to the filing of a petition for divorce on this ground- the other wife must be alive at the time of the petition. Here what is meant is not the physical existence but her social existence as a wife of the respondent. The zero hour for the grant of petition under the act is the time of instituting the petition and not that of passing the decree. Therefore, if the other wife dies after the petition, the decree may be granted. Again both the wives simultaneously or one after the other can petition for divorce, or even if the husband has filed a petition for divorce against one wife, the other wife may apply for divorce against him.12 And even if the wife dies or has

10 Paras Diwan, Family Law, Seventh Edition 2005, Allahabad Law Agency11 Leela v. Rao Anand Singh, A.I.R 1963 Raj 17812 P.C. Pant, Law of Marriage, Divorce and other matrimonial disputes, third edition 2003, Orient Publishing Company

obtained divorce or is divorced, the other wife is also entitled to divorce provided the petition was filed before the eventuality.13 This may sometimes cause difficulty to the husband, he may have to lose both wives. Still the court is bound to enforce this provision because the language is quite plain.14

What makes the rule defective is not the difficulty it may cause but the anomaly it has. On the one hand a petition for divorce is barred if no other wife is alive due to death or divorce, and on the other hand, if once a petition is made, the death or divorce of the other wife does not bar the decreeing of divorce. The loss of the other wife even after the petition should be a bar to the decreeing of divorce.

The petition on this ground cannot be rejected on the plea that the petitioner knew of the first marriage or that she has presumably condoned the husband by living with him along with the other wife.15 The relief of divorce cannot be refused on the plea that the second marriage was with the consent of the first wife or there has been an agreement before the act with the petitioner wife (whether she is the first or the second one) not to object to the other marriage.

As a general rule

Section 17 of The Hindu Marriage Act provides for Punishment of bigamy. It reads as “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 (45 of 1860) Code shall apply accordingly.”

Meaning of “solemnize”

Prima facie the expression “whoever marries” must mean ‘whoever married validly” or “whoever marries and whose marriage is a valid one”. If the marriage is not a valid one, according to the law applicable to the parties, no question of it being void by reason of its taking place during the life of the husband or the wife of the person marrying arises. The marriage between two Hindus is void in view of section 17nif two conditions are satisfied:

(i) The marriage is solemnized after the commencement of the act.(ii) At the date of such marriage, either party had a living spouse.

According to the Shorter Oxford Dictionary, the word “solemnize” means, in connection with a marriage, “to celebrate the marriage with proper ceremonies and due form”. The Supreme Court in Bhaurao Shankar Lokhande v State of Maharastra16 held that “If the marriage is not a valid

13 Mandul Naganna v. Lachmi Bai, A.I.R 1963 AP 8214 Venkatamma v. Patel Venkataswamy, A.I.R 1963 Mys 11815 Deepo v. Keher Singh, A.I.R. 1962 Punj 18316 A.I.R 1965 S.C. 1564

one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises.”

In the case of Shrinivasa Aiyar v. Saraswathi Ammal17, the husband had claimed that it was necessary for Hindus to have a son so that spiritual debts could be redeemed. Thus he should be allowed to have one more wife. Court rejected his petition.

Also in Ram Prasad v. State of UP18, it also unsuccessfully challenged the provisions of HMA restricting bigamy as unconstitutional, and as an infringement of the fundamental rights of Hindus to freedom of religion.

In a later decision in Kanwal Ram v. Himachal Pradesh Administration19 the Supreme Court held that in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it must be proved.

The Supreme Court in Baburao’s case20 extracted a passage from Mulla21 which is to the following effect:

“there are two ceremonies essential to the validity of a marriage, whether the marriage be in the brahma form or the asura form, namely-

1) Invocation before the sacred fire, and2) Saptapadi that is, taking of seven steps by the bridegroom and the bride jointly before the

sacred fire.”

Where these two essentials are absent in a case, the marriage in dispute is not a marriage in the proper form and hence it has to be held that the marriage has not been solemnized. In Empress v. Kallu22 and Morris v. Miller23, it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in a bigamy or adultery case.24

Any wife of the polygamous married husband may sue provided at the time of the filing of the petition, at least, one or more wife is alive25. It is obvious that ground will be available if both the marriages are valid26. Under this clause, both the wives may sue for divorce, since requirement is that at the time of the presentation of the petition, the other wife should be alive27. Since the ground relates to the policy of monogamy, the husband

17 AIR 1952 Bom 8418 AIR 1957 All 41119 (1996) 1 S.C.J. 21020 (1966) 1 M.L.J. (S.C.) 9221 Mulla, Hindu Law, 21st edition 2010 Lexis Nexis22 (1882) I.L.R. 5 All 23323 4 Burr. 2057 : E.R. 7324 Kanwal Ram v. Himachal Pradesh Administration, (1996) 1 S.C.J. 21025 Venkatamma v. Venkataswami, AIR 1963 Mys 11826 Mandal v. Lachmi, AIR 1963 AP 8227 Leela v. Anant Singh

will not be allowed to plead any conduct or disability of the wife-petitioner so as to bar relief.28 Thus, any compromise which first wife might have entered with the husband at the second marriage or any of her conduct or disability29, or any plea of estoppel30 cannot be pleaded in defence of her petition for divorce. It appears that no bar under Section 23, HMA, can be pleaded against her petition31. However, it has been held that petition may be defeated on the ground of improper delay32.

Section 17 of The Hindu Marriage Act makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of section 494 of the Indian Penal Code and that if the marriage is void its voidness would not only lead to the civil consequences arising from such marriage but instead the provisions of section 494 and 495 will apply accordingly. In other words though the marriage may be void under section 17 by reason of the fact that it was contracted while the first marriage was subsisting, the case squarely falls within the four corners of section 494 of the Indian Penal Code and by contracting the second marriage the accused incurs the penalty imposed by the said statute.33

The Supreme Court in Gopal Lal v. State of Rajasthan34 remarked that the voidness of the marriage under Section 17 of The Hindu Marriage Act is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of The Hindu Marriage Act.

I would appear, however, that a Hindu wife could seek divorce on the ground of the husband’s adultery under Section 13(1)(i) of the HMA and thus has such a remedy, at least under the Marriage Laws (Amendment) Act of 1976. HMA has no retrospective effect, so where both marriages of a Hindu husband were solemnised prior to 18 May 1955, either wife might petition for divorce, but the husband would not be liable to the penalties stipulated under Section 17 of the HMA.

Despite tough rhetoric in Gopal Lal v. State of Rajasthan35, the courts have no focused on heavy criminalization of Hindu polygamy, with a maximum penalty of seven years’ rigorous imprisonment. In Gopal Las, it was held, dismissing the husband’s appeal but treating him in effect leniently. In State of Bombay v. Narasu Appa Mali36, a bigamous Hindu husband had appealed against his prosecution under the Bombay Prevention of Hindu Bigamous Marriages Act of 1946. Hindu husbands faced with a prosecution for bigamy would now simple try to argue that the marriage rituals they had performed did not result in a legally valid Hindu marriage.

28 Nirma v. Nikkaswami, AIR 1963 Del 26029 Lali Thamma v. Kanna, AIR 1965 Mys 17830 Jawant v. Lal Singh. 1969 PLR 17831 Nirma v. Nkkaswami, AIR 1968 Delhi 26032 Laxmi v. Alagiriswami, AIR 1975 Mad 21133 Gopal Lal v. State of Rajasthan, A.I.R. 1979 S.C. 71334 Ibid35 AIR 1979 SC 71336 AIR 1952 Bom 84

In Rabindranath Dutta v. The State37, a first wife complained that her husband had married a second woman and should be punished. The husband claimed that he had never validly married the first wife, but had been sentenced to rigorous imprisonment for three months by the lower court, hence his appeal. Section 494 of the IPC was held.

Mere conversion does not dissolve the marriage automatically

Since under the Hindu Marriage Act, a bigamous marriage has been prohibited and has been considered as an offence under section 17 of the Act, any marriage solemnized by the husband during the subsistence of that marriage in spite of his conversion to another religion, would be an offence triable under section 17 of the Hindu Marriage Act read with section 494 of IPC. Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus automatically and they continue to be “husband and wife”.38 Apostasy does not bring to an end the civil obligations or the matrimonial bond39, but apostasy is a ground for divorce under section 13 of the Hindu Marriage Act. Mere conversion does not end the marital ties unless a decree for divorce on that ground is obtained from the court.40

Special Marriage Act 1954, In case of foreign marriage under section 19(1) of this act any person whose marriage is solemnized or deemed to have been solemnized under this Act and who, during the subsistence of his marriage, contracts any other marriage in India shall be subject to the penalties provided in Sections 494 and 495 of IPC and such marriage shall be void.

Jammu and Kashmir State Ranbir Penal Code, 1989 says that 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 shall apply accordingly.

Muslim Law as per Kuran

Muslim marriage is a polygamous marriage limited to four wives. A Muslim male has capacity to keep four wives simultaneously. But if a Sunni male takes five or more wives, his marriage with the fifth wife or subsequent wives is not void but merely irregular.

The Parsi Marriage and Divorce Act, 1936

Section 5 says that every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or

37 AIR 1969 Cal 5538 Lily Thomas v. Union of India, (2006) 6 S.C.C. 22439 ILR (1948) 2 Cal. 11940 Lily Thomas v. Union of India, (2006) 6 S.C.C. 224

husband, or without his or her marriage with such wife or husband having been declared null and void or dissolved, shall be subjected to penalties provided in Section 494 and 495 of the Indian Penal code for the offence committed.

Under Christian Law, the Divorce Act 1869

Contains provision regarding the dissolution of marriage and according to the section 10 of the Act husband is entitled to the dissolution of marriage on the ground of adultery only but however the wife can sue for divorce under the ground of adultery only if it is accompanied with some other ground of matrimonial dispute. One of the grounds being Bigamy with adultery.41

Under section 19(4) of the Act, that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife then in force. Then court will grant decree.

Criticism

Why Bigamy should prevail in India: Consequences of Monogamy under Hindu Marriage Act

The Hindu Marriage Act introduced the Christian concept of monogamy into the Hindu marriage. The provision of monogamy was introduced ostensibly to elevate the status of Hindu women and it was a demand raised by women in the nationalist movement. During parliamentary debates, it was claimed that Hinduism is not a religion but a conglomeration of culture. But while the Act transformed the Hindu marriage from a status to a dissoluble contract, the form of solemnizing the contract remained Brahminical and scriptural, with the sacred fire and the seven steps round the sacred fire as its core components. Further, within a pluralistic society, the Act also had to validate diverse customary practices.42 However, a ‘valid custom’ as accepted under the Act, had to meet the standards stipulated under the English Law-ancient and existing continuously since time immemorial. This mingling of Brahminical rituals and customary practices, with English principles thrown in for good measure, has resulted in absurd and ridiculous rulings regarding the validity of Hindu marriages and women have been the worst suffers of these legal absurdities.

In the process of urbanization, most customary practices have been modified and urban communities, living in close proximity, have adopted a synthesis of marriage rituals. The forms range from exchange of garlands to applying vermilion on the bride’s forehead, from declaring themselves married by signing on a stamp paper in a lawyer’s chamber to performing some rituals before a deity in a particular temple. This ambiguity regarding the valid form of marriage is not found under any law governing minority communities. Under other laws, formalities of 41 K. Padmaja, The law of divorce, 1st edition 2007, ICFAI University Press42 Section 7(1) & (2) of Hindu Marriage Act,1955

solemnizing marriage are strictly prescribed and the officiating priest has to either provide the necessary documents by way of a marriage certificate or is required to register the marriage with the registrar of births, deaths, and marriages. Since Muslin, Christian, and Parsi religions are ore institutionalized, the rules and procedures for contracting marriage are definite and unambiguous and are strictly controlled by the religious hierarchies. But Hindu marriages (as well as the Hindu Law), which were based more on community practices, are relatively less institutionalized and its legality is more ambiguous. Due to the breakdown of traditional communities within these marriages were performed, the situation has further deteriorated.

This ambiguity has provided a Hindu male ample scope to contract bigamous marriages. Since the law recognizes only monogamous marriages, women in polygamous relationships are placed in a vulnerable situation. In the absence of any clear proof, the man has the choice of admitting either his first or subsequent relationship as a valid marriage and escaping from financial responsibility towards the other woman. When the man refuses to validate the marriage, the woman loses not only her right to maintenance but also faces humiliation and social stigma as a mistress. The flip side of this predicament in maintenance proceedings is the dilemma faced by women in criminal proceedings in cases of bigamy. Here, years of litigation failed to end in conviction for the errant male due to the courts adopting a rigid view that saptapadi, vivaha homa, kanyadan, etc., are essential for solemnizing a Hindu marriage. If the first wife is not able to prove these ceremonies in respect of her husband’s second marriage, the husband could come out of the conviction. This, despite the fact that he had cohabited with the second wife, the community has accepted the man and the woman as the husband and the wife, or even if he had fathered children through the second wife.

So the progressive sounding of monogamy not only turned out to be a mockery, but in fact is even more detrimental to women than the uncodified Hindu law which recognized rights of wives in polygamous marriages. For instance, in a case for maintenance where the husband pleaded that since the woman was his second wife, he was not entitled to pay her maintenance, the court took recourse to the uncodified Hindu law and held that since the couple is governed by the ancient Hindu Law which permits bigamy and hence she is entitled to get maintenance.43

The first constitutional challenge to the provisions of the Hindu Marriage Act, 1946 come from the Hindu male challenging the provision of monogamy before the Bombay High Court in State of Bombay v. Narasu Appa Mali.44 A Hindu husband pleaded that the stipulation of monogamy violates his personal freedom and hinders the practice of his religion. He argued that it is discriminatory against Hindu Men, since Muslim men are permitted to contract polygamous marriage. The court rejected his contention by saying that under Hindu Law bigamy is a ground

43 Anupama Pradhan v. Sultan Pradhan, 1991 Cr LJ 3216 Orissa44 Air 1952 Bom 84

for divorce. Similar judgement and contention came in the case of Srinivasa Aiyar v. Saraswati Ammal45 and C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil.46

Conclusion

45 Air 1952 Mad 19346 (1996) 8 SCC 525