Introduction
Marriage in India has been considered as a holy sacrament. The husband and the wife are bound to maintain a permanent relationship. Earlier the number of spouses a man or woman could have in a marriage used to depend on the religion that the spouses use to follow. Gradually the marital conditions in India deteriorated, the man started having multiple wives. As polygamy became a part of the culture wives were subjected to domestic violence, ill-treatment, poor healthcare etc. The Indian legal system brought in-laws to uplift the condition of women and maintain the sanctity of the marriage and monogamy became part of the Indian culture. Bigamy and Cohabitation share the thematic of marriage but differ widely in their approach.
Bigamy
Bigamy refers to marrying another spouse where the marriage with the first spouse still prevails. Under the following marriage, the marital status of the first marriage does not subside. Bigamy is considered as an offence in India because a large part of India believes in monogamy. Section 494 of the Indian Penal Code, 1860 criminalizes bigamy and reads as –
“having a husband or wife living, marrying in any case in which such marriage is void by reason of its taking place during the life of such husband or wife[1],”
Therefore, the essential elements for bigamy are:
- There should be a prevailing marriage beforehand.
- The earlier should be legally valid.
- The spouse from first marriage should be alive.
- The accused person should have married twice.
- The second marriage should not be valid under any personal law.
Bigamy has been considered bailable, non-cognizable and compoundable with the permission of the court. If someone has committed the offence of bigamy then under Section 494 of the IPC, there is imprisonment of either description which may extend up to a period of 7 years or fine or with both. In a Supreme Court[2] case, a Hindu husband remarried after converting to Islam. This was held violative of justice, equity and good conscience. Such marriage would also be void and attract the provision of Section 494.
Cohabitation
Cohabitation refers to the act where two people live together without any legal obligation towards each other. Supreme Court in its landmark judgment[3] for the first time recognized cohabitation as a valid marriage. It was held by Justice Krishna Iyer that a strong presumption arises in favour of wedlock where the partners have lived together for a long term as husband and wife.
Conclusion
Bigamy is a criminal offence as per the Indian Penal Code, 1860. In a marriage, one cannot marry more than one person. With upcoming liberal views about marriage, cohabitation is gradually becoming a part of the culture.
Sources:
[1] Universal’s The Indian Penal Code, 1860 Bare Act (2020)
[2] Sarla Mudgal v. Union of India AIR 1995 SC 1531
[3] Badri Prasad v. Dy. Director of Consolidation &Ors [1978] Insc 119
This blog is written by Jaya Singh, Amity University.
Some of her blogs-
Visit our Instagram page @lawyergyan at this link.
