Void but Not Punished: Bigamous Marriages in India

Abstract

Despite clear statutory prohibitions, bigamy in India remains a crime with alarmingly low conviction rates. The article explores the structural, evidentiary, and societal challenges that hinder effective enforcement of anti-bigamy laws under the Bharatiya Nyaya Sanhita and various personal laws. It critically analyzes the legal framework, judicial precedents, and practical hurdles such as the high burden of proving ceremonial solemnization, investigative lapses, and gendered social pressures that contribute to the prevailing enforcement gap. Through a comparative analysis with countries like the UK, France, and Malaysia, the study highlights alternative legal models that ensure greater accountability and protection for victims. Ultimately, the article calls for comprehensive reforms, including relaxed evidentiary standards, specialized enforcement mechanisms, and the harmonization of personal laws through a Uniform Civil Code, to transform existing legal provisions into effective tools of justice.

Introduction

Bigamy is the act of contracting a marriage with one person while still legally married to another, which is a clear violation of Indian law. Despite a clear legal prohibition, a profound contradiction still exists. Conviction rates for bigamy in India remain significantly low, which suggests a huge gap between legislative intent and practical enforcement. This article delves into the multidimensional reasons behind this lack of enforcement, exploring the strict evidentiary requirements that hinder rightful conviction, the procedural and investigative complexities within the justice system, the widespread societal and gendered barriers that weaken victims, and the broader implications of institutional neglect. It seeks to uncover why a practice deemed illegal by statute often goes unpunished, leaving victims, mostly women, in a prolonged state of legal and social vulnerability.

Bigamy under Indian Law

Primarily under Section 82 of the newly enacted Bharatiya Nyaya Sanhita^[1] (BNS), which supersedes Section 494 and 495 of the Indian Penal Code^[2] (IPC) bigamy defined as marrying again during the lifetime of a husband or wife, unless the previous marriage has been declared void by a competent court or dissolved. The punishment which is given is of imprisonment for specified period under law and a fine. These provisions emphasizes the criminal gravity assigned to the act. India’s pluralistic legal system, with its distinct personal laws for different religious communities, adds layers of complexity to the issue of bigamy.

• The Hindu Marriage Act, 1955 which applies to Hindus, Buddhists, Jains, and Sikhs, mandates monogamy as a prerequisite for a valid marriage. Section 17 of this Act explicitly makes bigamy a punishable offense, directly invoking Section 82 of BNS, which prescribe imprisonment and fine as a punishment.
• Under Muslim Personal Law, polygyny is permitted for men, who can have up to four wives simultaneously. Consequently, Section 82of the BNS does not apply to Muslim men but it does apply to Muslim women, as polyandry is not permitted.
• The Christian Marriage Act, 1872, and the Parsi Marriage and Divorce Act, 1936, both prohibit bigamy. Any marriage contracted under these acts while a previous marriage is existing is considered void, attracting the penal provisions of the IPC.
• The Special Marriage Act, 1954, and the Foreign Marriage Act, 1969, which are secular in nature, apply to all citizens irrespective of their religion and strictly prohibit bigamy.

A significant challenge arises from the practice of “dual identities,” where a person from a community that mandates monogamy converts to Islam solely for the purpose of having a second marriage without dissolving the first. The Supreme Court in the Sarla Mudgal^[3] case held that a Hindu husband converting to Islam and remarrying would still be liable for bigamy under Section 494 IPC if his first marriage had not been dissolved under the Hindu Marriage Act. This stance was reasserted in Lily Thomas v. Union of India^[4], by saying that religious conversion cannot be a way to escape existing legal obligations and bypass the criminal law against bigamy. The judiciary has taken many efforts to curb such misuse, but the legal landscape waits for a Uniform Civil Code^[5] (UCC) for complete consistency. To address this, the Law Commission has recommended some changes such as inserting a new Section 17-A into the Hindu Marriage Act to explicitly state that a marriage under the Act cannot be bypassed by a change of religion.

Low Conviction Rates: Why?

Despite the clear legal prohibitions against bigamy, the conviction rates remain strikingly low, revealing systemic deficiencies that undermine justice for victims. The reasons for this enforcement gap are multidimensional, encompassing strict evidentiary demands, procedural inadequacies, and embedded societal prejudices.

• Evidentiary Barriers:

A primary obstacle in bigamy cases is the exceptionally high burden of proof placed on the complainant. To secure a conviction under Section 82 BNS (formerly 494 IPC), it is not enough to merely prove the existence of a prior marriage and cohabitation in a second relationship. The prosecution must conclusively establish that the second marriage was solemnized with all the essential religious rites and ceremonies required by the personal law governing the parties. This often necessitates proving specific ceremonies, such as saptapadi (seven steps around the sacred fire) in Hindu marriages, with witnesses who can confirm these rituals. Courts have repeatedly emphasized this strict requirement. For instance, in Kanwal Ram v. Himachal Pradesh^[6], the Supreme Court ruled that actual performance of the essential ceremonies of marriage, such as saptapadi, must be proved. This insistence on proving solemnization, rather than just verifiable cohabitation or public acknowledgement, creates an almost unconquerable barrier. Often, bigamous relationships are kept secret, making it highly difficult for the first spouse to gather indisputable evidence of a full-fledged second wedding ceremony, complete with photographic evidence, official records, or impartial witnesses. The very nature of a bigamous act many times involves secrecy, which directly clashes with the strict evidentiary demands.

• Social Stigma and Pressure:

The enforcement of bigamy laws is also highly restricted by deep-seated societal and gendered barriers, mostly affecting women. In a patriarchal society, women generally face tremendous pressure to avoid legal battles, especially when it involves their marital status. The stigma associated with a husband taking a second wife, coupled with significant financial dependence on him, often discourages the first wife from initiating legal action. Family pressure, concern for children’s future, and fear of social isolation contribute to victims suffering in silence rather than seeking legal resort. Even if a woman decides to file a criminal complaint, she may encounter patriarchal attitudes within law enforcement and even judicial lower courts, where bigamy may not be viewed with the criminal severity it deserves. Patriarchal biases contribute to the under-reporting and under-prosecution of domestic crimes, including bigamy. The very system meant to protect them can become a barrier, reinforcing the cycle of impunity for bigamists.

• Procedural and Investigative Failures:

Beyond the courtroom, systemic failures within law enforcement and the prosecution machinery significantly delay bigamy cases. Police often treat such matters as minor domestic disputes or suggest civil remedies, exhibiting indifference to the criminal implications. Even when an FIR is registered, the subsequent investigation is often perfunctory. Evidence collection, witness statements, and documentation crucial for proving a ceremonial second marriage are poorly managed or neglected. This initial procedural laxity often leads to a weak case when it finally reaches court. Furthermore, public prosecutors, often burdened with heavy caseloads, may not dedicate sufficient attention or expertise to bigamy cases, failing to effectively present the available evidence or argue the nuances of the law. The lack of specialized units within the police or prosecution dedicated to family crimes means that such cases do not receive the focused attention required to navigate their complex evidentiary challenges.

Comparative Legal Frameworks

Internationally, many countries criminalized bigamy. In the United Kingdom, for example, bigamy is a crime under Section 57 of the Offences Against the Person Act 1861^[7]. The mandatory and centralized marriage registration systems create an official and easily verifiable record of marital status. This shifts the burden of proof  from proving elaborate rituals to presenting an official marriage certificate, making it easier to establish a second marriage in court.

In contrast to India, the position in India, Malaysian law imposes stringent conditions that must be met before a man can legally take another wife. An aspiring polygamous husband must obtain written permission from the Syariah Court. To grant this permission, the court must be satisfied that the proposed marriage is both “just and necessary,” and that the applicant has the financial means to support all wives and dependents fairly. The court will also consider the views of the existing wife or wives. This regulated approach ensures judicial oversight and aims to protect the welfare of all parties involved, making it a more structured system than the one prevailing for Muslims in India.

France represents a model of strict secularism , which is reflected in its unified and unwavering prohibition of bigamy for all its citizens, irrespective of their religious or cultural affiliations. The French legal system does not recognize personal or religious laws in the domain of civil matters like marriage. Article 147 of French Civil Code ^[8]states that one cannot contract a second marriage before the dissolution of the first. Any marriage celebrated in violation of this provision is considered absolutely null and void. Beyond being a civil nullity, bigamy is also a criminal offense under the French Penal Code^[9]. Article 433-20 stipulates that any person engaged in a marriage who contracts another before the dissolution of the preceding one is liable to imprisonment and a substantial fine.

These insights highlight the procedural reforms needed within the Indian context to make the law more effective. These international frameworks, while also facing some challenges, often benefit from more centralized marriage registration systems, which can simplify the evidentiary burden that plagues the Indian context.

Consequences and Impact

The failure to effectively prosecute bigamy has profound and damaging consequences that ripple through the lives of individuals and the fabric of society. For the aggrieved spouse, typically the first wife, the act represents a profound betrayal that inflicts severe emotional and psychological trauma. Beyond the personal anguish, it creates immense economic insecurity, as the husband’s resources are diverted to the second family. This often leads to protracted and painful legal disputes over maintenance, property rights, and inheritance, leaving the first wife in a vulnerable position.

The children born out of the second, void marriage also face significant legal and social challenges. Their legal status, particularly their legitimacy and inheritance rights become a complex issue. While the law provides for the legitimacy of children from void marriages under the Hindu Marriage Act, securing their rights to maintenance and a share in ancestral property often requires extensive litigation.

For the justice system, the inability to deliver convictions in bigamy cases fosters disillusionment and erodes public trust. Complainants who invest significant time, resources, and emotional energy into a case, only to see it fail on technical grounds, are left feeling let down by the very system designed to protect them. At a societal level, the under-enforcement of bigamy laws tacitly encourages a form of informal polygamy. It weakens the deterrent value of the law, undermining the legal and social principle of monogamy that underpins personal laws for the majority of Indians.

Way Forward: Legal and Policy Reform

Addressing the persistent enforcement gap in bigamy laws necessitates a multi-pronged approach encompassing legislative reform, institutional strengthening, and societal sensitization.

Firstly, legislative clarity is paramount. The current evidentiary burden, demanding precise proof of solemnization for the second marriage, must be loosened. Courts should be empowered to consider circumstantial evidence, such as substantial cohabitation, public acknowledgment as husband and wife, production of marriage invitations, or photographic evidence, as sufficient proof of a bigamous union, rather than solely insisting on direct proof of rituals. This pragmatic approach would align the law with the reality that bigamous marriages are often secret.

Secondly, institutional reforms are critical. Police forces need specialized family crime units composed of officers trained in handling sensitive domestic matters, including bigamy. These units should be adequately resourced and mandated to register FIRs promptly and conduct thorough investigations, focusing on evidence collection that can stand up in court. Similarly, public prosecutors require specialized training to understand the nuances of bigamy cases, enabling them to effectively present evidence and arguments.

Thirdly, strengthening legal aid and witness protection mechanisms for women victims is crucial. Many women refrain from pursuing cases due to financial constraints and fear of reprisal. Enhanced legal aid services, coupled with robust witness protection programmes, would empower women to come forward without fear.

Finally, the ongoing debate around a Uniform Civil Code presents an opportunity for broader legal consistency. The UCC could harmonize personal laws, eliminating the loopholes exploited through religious conversions and providing a uniform legal framework for marital laws, including bigamy, applicable to all citizens irrespective of their religion. While a contentious issue, the Law Commission of India’s Report No. 227 has previously advocated for addressing specific instances of discrimination within personal laws, which could be a stepping stone towards greater uniformity. Such comprehensive reforms are essential to transform the bigamy law from a mere declaration into an effective tool for justice.

Conclusion

In conclusion, the criminalization of bigamy under the Bharatiya Nyaya Sanhita and its void nature under the Hindu Marriage Act, 1955, clearly reflect India’s commitment to monogamy within its social fabric. However, the pervasive failure to secure convictions for bigamy underscores a critical disconnect between legal provision and practical enforcement. The law, though present, often fails to deliver justice due to a confluence of structural, legal, and cultural barriers. The unrealistically high evidentiary standards, a disinclination within law enforcement to pursue these cases diligently, and deep-seated societal pressures on women to endure rather than resist, collectively render the anti-bigamy provisions largely ineffective.

The profound impact on women, who are left in a legal and financial trouble, highlights the urgent need for comprehensive intervention. Real change necessitates a holistic approach like doctrinal reform that loosens stringent evidentiary requirements, institutional readiness that includes specialized police and judicial training, and a fundamental shift in societal attitudes towards gender equality within marital relations. Empowering women to seek justice through improved access to legal aid, supportive investigative frameworks, and robust protection mechanisms is paramount. Until these systemic issues are addressed, bigamy will continue to be a crime that is void in law but largely unpunished in practice, perpetuating injustice and undermining the very principles of equality and dignity enshrined in the Constitution.

Reference

[1] Bharatiya Nyaya Sanhita, 2023

[2] The Indian Penal Code 1860

[3] Smt Sarla Mudgal, President, Kalyani & Ors v Union of India & Ors 1995 (3) SCC 635 (Supreme Court of India)

[4] Lily Thomas and Others v Union of India and Others (2000)6 SCC 224 (Supreme Court of India)

[5] The Constitution of India 1950, Art. 44

[6] Kanwal Ram And Others v Himachal Pradesh Administration 1965 SCC OnLine SC 42 (Supreme Court of India)

[7] Offences Against the Person Act 1861, s 57

[8] Code Civil (Fr), Art. 147

[9] Code Penal (Fr), Art. 433-20