By meghna at 8 March, 2010, 8:49 pm
Monogamy is an integral part of Christian Faith. In 1860 when Indian Penal Code was framed, Bigamy was declared an offence under Sections 494 and 495 is punishable with fine and imprisonment of seven years or both. Both man and woman can be punished under these sections.The Sections apply to all communities in the country apart from Muslim males. The tribal man and woman are also exempted from the same if their customary laws do not consider the plural marriages void.
The Hindu Marriage Act 1955 prescribes strict monogamy for Hindus. But the act is deficient in certain respects. The Muslim females can be punished for the said offence. Solmnization of marriage (performance of specific ceremonies) is given a lot of importance, which is contrary to the interests of the victim and helps the offender.
Existence of an existing valid marriage is an essential condition to prove the said offence. The accused must enter into a second marriage which must be valid. The subsequent marriage would be declared void under the section 17 of the Hindu Marriage Act.
Conversion to islam is often used as a shield to protect the conviction under section 494. Under the Muslim law an polygamy is allowed to a muslim male. He can thereby have four wives at a time. In Sarla Mudgal v. UOI , the Supreme Court held that if a marriage is solemnized under a particular personal law it cannot be dissolved by the application of another personal law. The parties have to be governed by the personal laws that governed them before the conversion took place. The courts must decide such cases on basis of equity, good conscience and justice.
In Lily Thomas v. UOI, the Supreme Court re-affirmed its decision. The court held that the the Sarla Mudgal Case did not violate the Article 20(1) and 25 of the Constitution. It does not hinder the right to freedom of conscience, religion or profession of an individual. Moreover the court said that conversion for purposes of commission of an offence of Bigamy has no sacred purpose and it only makes mockery of Islam.
Quran specifies that a Muslim male must treat all his wives equally. He should be able to maintain and satisfy them. If he is unable to do so he must remain a monogamist. Even the dissolution of Muslim Marriages Act,1939 treats unequal treatment between co-wives as a ground for divorce available to the aggrieved wife but no law can prosecute him for bigamy.
In muslim countries like Pakistan, Bangladesh, Iraq, Syria, Jordan, Egypt, Yemen and Morocco bigamy has been subjected to administrative or judicial control while Tunisia and Turkey have legally banned bigamy.
“Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to
marry again without having his existing marriage dissolved in accordance with law”.
The Law Commission Report suggests:
1. In the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriageis dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860.
2. A similar provision be inserted at suitable places into the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act 1939.
3. The Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 – saying that this Section would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith – be deleted.
4. In the Special Marriage Act 1954 a provision be inserted to the effect that if an existing marriage, by whatever law it is governed, becomes inter-religious due to change of religion by either party it will thenceforth be governed by the provisions of the Special Marriage Act including its anti-bigamy provisions.
5. The offences relating to bigamy under Sections 494-495 of the Indian Penal Code 1860 be made cognizable by necessary amendment in the Code of Criminal Procedure 1973.