Exception:- This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife., if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.” The scope of Section 494 is comprehensive and it is applicable to members of all communities living in India for instance, Hindus, Christians, Parsis and Muslim Women, except Mohammedan males, who may marry and have up to four wives a time according to the Muslim Personal Law. The Ingredients of Section 494 are: i) The accused had already been married; ii) Such marriage was legal; iii) The person with whom he was married was still alive. iv) The accused married another person. v) Such subsequent marriage was void by reason of its taking place during the life of the first consort.
The offence is non-cognizable, but a warrant should ordinarily issue. It is bailable and compoundable with the permission of the Court, and is triable by the Magistrate of the first class. In Andhra Pradesh it is cognizable, non-bailable and is triable by the Magistrate of the first class. No court is competent to take cognizance except on a complaint made by some person aggrieved by such offence under Section 494. The validity of a marriage in the case of Mohammedans and Jews will be determined in accordance with their religious usages; in the case of native Christians by Act XV of 1872, in the case of Parsis by Act III of 1936; and in the case of Hindus. Buddhists, Sikhs and Jains by Act XXV of 1955. The validity of a marriage solemnized under the Special Marriage Act will be determined by its provisions.
Section 494 comes into operation when the accused having been married once and marriage still subsisting has gone through marriage second time. The word ‘marriage’ used in Section 494 means “marries by some form of marriage known to and recognised by the law”. Section 494 does not refer to a valid marriage, yet if the form of the second marriage is recognised by the law that would be sufficient to satisfy the provisions of Section 494. The word ‘marry’ in Section 494 means going through a form of marriage whether it be legal and valid or illegal and invalid. The word ‘marry’ according to the observation of the Supreme Court means ‘whoever marries validly”. If the marriage is not a valid 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 wife or the husband of the person arises. If the marriage is not a valid marriage it is no marriage in the eye of law.
The expression “whoever marries validly” in Section 494 means “whoever goes through a form of marriage known to and recognized by the law as capable of producing a valid marriage” and the expression ‘marriage’ in Section 494 would accordingly mean marriage valid in form though not in law and the expression ‘marriage’ in Section 494 would thus mean going through such form of marriage. There must be at the time of the second marriage a previous valid and subsisting marriage. If the first marriage is not a valid marriage, no offence is committed by contracting a second marriage. Divorce dissolves a valid marriage hence divorced persons are entitled to remarry. Under Muslim law a woman, on termination of her marriage either by death or divorce is required to observe iddat before contracting second marriage. But if she marries second time before completing her iddat she will not be guilty of bigamy. According to Muslim Personal law, when a child is given in marriage by any person other than the father or grand-father, he or she has the option of either ratifying it or repudiating it on attaining puberty provided it was not consummated.
If the girl on attaining puberty contracts second marriage thereby repudiates the first, she will not be guilty of offence mentioned under Section 494. If the parties to the marriage happened to be Muslims and are a contract between husband and wife at the time of marriage which empowers the wife to divorce herself in specific contingencies and she exercises that power on the happening of any one of them, the divorce will take effect as if it has been pronounced by the husband. No declaration from a court of law would be necessary. A marriage with such a Muslim woman after such divorce is not covered by Section 494. According to ‘Exception’ provided in Section 494, second marriage is not an offence under the following two circumstances: (i) Whose marriage with such husband or wife has been declared void by a court of competent jurisdiction; and (ii) When the former husband or wife has been continuously, absent for 7 years and not heard of as being alive within that time, provided the real state of facts shall be disclosed to the person with whom the second marriage is contracted. Hindu law does not recognise polygamous marriage therefore, if a Hindu woman who has a living Hindu husband marries either a Muslim or Christian even after embracing Islam or Christianity commits bigamy.
If a Hindu embraces Christianity and married a Christian woman according to the rites of Roman Catholic religion and subsequently he converts to Hinduism and marries with a Hindu girl while his Christian wife is still living, he will not be guilty of bigamy. If an Indian Christian domiciled in India marries an Indian Christian woman domiciled in India and subsequently embraces Islam, marries a Muslim woman, his second marriage shall be legal. But if a Christian woman who had married a Christian according to Christian rites converts to Islam during the life time of her husband and marries a Muslim, she will be guilty of bigamy. When a person apostate from Islam his marriage comes to an end and the wife will not be guilty of bigamy if she goes through second marriage, after obtaining a decree for the dissolution of her marriage according to Section 2 of the Dissolution of Muslim Marriage Act, 1939.
To repeal the charge imposed under Section 493 the accused may plead in his defence the following facts. i) His first marriage was null and void even though he had not obtained a declaration to that effect. ii) Absence of other spouse for a period of seven years should be established. iii) If it is established that the accused and his first wife are living separately for preceding seven years, then it will be duty of the accused to establish that during that period he was aware of her existence.
iv) At the time of second marriage, he informed the fact of his first marriage to the other party. In Santosh Kumari v. Surjit Singh [1990 CrLJ 1012 HP), the first wife gave permission to her husband for his second marriage. Both the wife and husband applied for the permission before the District Court, which was accorded by that Court.
The proposed second bride came to know it and filed an appeal before the High Court. The court held that no court is authorised to permit second marriage even if it be at the application of the first wife. Such permission has been held illegal. In Lingari Obulamma v. State [AIR 1979 SC 848] it has been observed that there was absolutely no evidence to prove that any of the two essential ceremonies of Hindu Marriage i.e., Datta Íîmà and Saptapadi had been performed at the time of the second marriage and the existence of the custom in the community to put the yaru ‘Thread’ instead of ‘Mangal Sutra’ was neither mentioned in the complaint nor proved in the evidence, the conviction under Section 494, IPC could not be sustained.
It was accordingly held that it was well settled that before a conviction can be recorded under Section 494, it must be proved that both the marriages were valid and strictly according to law governing the parties. In Durga Charan v. State of Delhi [2000 CrLJ 3530 (Delhi)], the accused belonged to a Scheduled Tribe community. There was no notification by the Central Government making the Hindu Marriage Act applicable to that Tribe. Hence Section 494 was not attracted to his marriage.