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CHAPTER II
3. reportmeritalproblems.blogspot.
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that a person may offend against the rule without being fully
conscious of it. But the rule is enacted in the interest of the
peace of society and the means rea is furnished by the
knowledge of the voidability of the second marriage
necessarily implied in one who contracts it, which might at
first appear conflicting and contradictory. Of course, this is
the very essence of the crime, for if the second marriage is not
void, criminal law cannot punish what the civil law does not
prevent. 10
The voidability of the second marriage depends upon the
validity of the first marriage, and upon the fact that the
second marriage was a valid and sufficient marriage, but for
the existence of the first marriage. The validity of a marriage
depends upon :
(i) the religion of the parties.
(ii) their domicile and
(iii) the performance of ceremonies constituting the
marriage.
In the case of Krishna Kanta Nag v. State of Tripura, 11
wife give complaint under Section 494, Indian Penal Code,
1860, that her husband contracted second marriage during
her life time. The parties professed Hindu religion. Wife could
not prove that second marriage was performed in accordance
with Hindu rites and customs there was thus no valid
marriage. So, husband not guilty of offence under Section
494, Indian Penal Code, 1860, conviction set asid.
Section 494, does not apply to Mahomedan males, who
are allowed to marry more than one wife. But by Section 17 of
the Hindu Marriage Act, 1955, Section 494, applies to Hindus.
12. Gopal Lal v. State of Rajasthan AIR 1979 SC 713; 1979 Cri.L.J. 652
(SC): (1979) 2 SCR 1171.
13. Indian Christian Marriage Act, 1872.
14. Parsi Marriage and Divorce Act, 1936.
15. Ratanlal & Dhirajlal's Law of Crimes, 2423, Vol. II, Twenty-Fifth
Edition, 2006.
16. Davis v. People, 264, p. 658: 83 Colo. 295; People v. Lewis, 190 N.W.
702: 221 Mich. 164.
19
27. Ibid.
28. Ibid.
29. 2013 Cri.LJ 4147 (H.P.).
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34. Hopson v. State, 30 S.W. ed. 311: 115 Tex Cr. 260; Burs v. State, 94
S.W. 1040: 50 Tex Cr. 47.
35. Bolaram Baruti v. Mst. Surjya Baruti, AIR 1969 Assam 90; Pyari Devi
alias Lalti Devi v. Ramanand, 1984 All. Cr.R. 419 at 421; Dhara Devi
v. Prafulla Swain, (1984) 50 Cut. L.J. 101 at 106.
36. 2012(4) RCR (Criminal) 331 (SC).
37. Id., at 91.
27
38. Rabindra Nath Datta v. State, AIR 1969 Cal 55 at 56; Kartar Kaur v.
Bikkar, (1985) 87 PLR 193.
39. 2012 (2) RCR (Criminal) 301 (Delhi).
40. RA Nelson's Indian Penal Code, 4560, Vol. IV, Ninth Edition, 2003.
28
65. Kochu Muhammad Kunju Ismail v. Mohammad Kadeja Umma, AIR 1959
Ker. 151 at 154.
66. Kiran Devi v. Thakur Das, 1977 Cri LR (Raj) 79; Bhaurao Shankar
Lokhande, AIR 1965 SC 1564: (1965) 2 Cri LJ 544 (SC).
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67. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153;
Lingari Obulamma v. Venkata Reddy L AIR 1979 SC 848; Laxmi Devi,
AIR 1994 SC 1566; Satyamarayana P. v. Mallaiah, P, 1997 Cri.LJ 211
(SC).
68. Kanwal Ram, AIR 1966 SC 614; Trialokya Mohan (1968) Cri.LJ 896
(Ass); Mukta Jesing v. Vallabhadas Kalidas, 1974 Cri.LJ 121 (Guj);
Gopal Anant Musalgaonkar, 1976 Cri.LJ 1333 (MP); Shantimani Dei v.
Lingaraj Moharana, 1982 Cri.LJ 1567 Ori; Amaliammal v.
Rayarswami, 1983 Cri.LJ 1719 (Mad).
69. 2013 (5) RCR (Criminal) 812 (H.P.) (D.B.).
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mens rea it should be held that the offence under Section 494,
can be committed only intentionally or recklessly. 73
If it is proved that the accused and his first wife have
lived apart for seven years preceding the second marriage, it is
incumbent on the prosecution to show that during that time
he was aware of her existence; and, in the absence of such
proof, the accused is entitled to be acquitted. 74 Where a
woman, who having the means of acquiring knowledge of the
death of her first husband, does not make use of them, and
marries, she commits bigamy. 75
The doctrine of a certain school of Mahomedan divines in
regard to the competency of a woman to marry again after the
absence of her husband for four years does not entitle a
woman so remarrying to the benefit of the exception. 76
Under this exception it is incumbent on the person
contracting the second marriage, if it is contracted within
seven years, to inform the other party about the first
marriage. 77
(i) Proof of exception to criminality :
It is ordinarily on the prosecution to establish all the
elements necessary for proving the offence of bigamy. The
accused may them plead the exception, and if he can prove
that he had not heard of his spouse for a period of seven
years, he would be acquitted, unless the prosecution prove the
contrary as a fact. The fact that if the accused had enquired
from sources which he did not avail himself of, he would have
learnt the existence of his spouse, does not rebut the
78. Cullen, (1840) 9C. & P. 631; Jones, Carr. & M. 614; Briggs, 26
L.J.M.C., 7; Curgerwen, 35 L.J.M.C. 58; Twying, (1819) 2 B. & Ald.
386.
79. Curgerwen, (1865) LR I.C.C.I.
80. Faulkes, (1903) 19 T.L.R. 250.
81. Tolson, 23 Q. B.D. 168, Overruling contra in Gibbons, 12 Cox. 237;
Contra Sambhu, I.L.R. 1 Bom. 347.
82. 19 Cri.LJ 630 at 631: (1918) P.W.R. 31; Contra in Narantakath v.
Parenkal, I.L.R. 45 Mad. 986.
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Section 494, Indian Penal Code, 1860, does not punish for the
error of contracting a void second marriage, but only when it
is void by person of its taking place during the lifetime of the
first spouse. The term 'void' in both the section and exception
is used as meaning invalid and not merely voidably. In
England, it has been held that a marriage which is voidable,
but not void, is sufficient to support an indictment for
bigamy. 83 And a similar view has been taken in Ireland. 84 So
marriage voidable for impotency of another party is a good
marriage till it is avoided and would support an indictment for
bigamy. 85
6. Abetment in Bigamy :
Mere permission to allow one's premises to be used for
the purpose of the marriage does not in itself lead to the
conclusion that the person has abetted the performance of the
marriage. 86
Just because the mother of the first accused along with
petitioners 2, 3, 5 and 6 was present at the time when first
accused married the second accused it cannot be said that
she was there only to commit abetment of the offence
committed or committed by the first accused. 87
For proving an offence punishable under Section 494,
read with Section 109, Indian Penal Code, 1860, it has to be
established first that the family members or relatives of the
principle accused had either attended the first marriage or
knew the couple as husband and wife and had no reason to
believe that the marriage has been dissolved. Secondly, they
the complainant with the accused No. 1 and for this, it was
necessary for the complainant to place on record preliminary
evidence. It is pertinent to note that neither in the verification
of the complainant not in the evidence of witness Narayan this
evidence is coming forth. The judicial Magistrate has also
found that accused Nos. 3 to 7 are only liable for the offences
punishable under Sections 494 and 109, Indian Penal Code,
1860, and Prima Facie no offence was disclosed against any of
the accused Nos. 8 to 12. The Judicial magistrate well as the
Additional Sessions Judge, therefore, were justified in refusing
to issue process for offences against accused Nos. 8 to 12. 91
Mere presence at the commission of crime even with the
awareness that a crime was being committed, is not in itself
an intentional aid. To be present and to be aware that an
offence is about to be committed does not constitute the
abetment unless the person thus present holds some position
of rank or influence such that his countenancing what takes
place may, under the circumstances, be held a direct
encouragement. 92
Mere consent of persons to be present at an illegal
marriage, or their presence in pursuance of such consent, or
the grant of accommodation in a house for the marriage, does
not necessarily constitute abetment of such marriage. 93
The priest who officiates at a bigamous marriage is an
abettor under Section 494, and Section 109, Indian Penal
Code, 1860. 94
91. Nirmalabai v. K.A. Dhasal, 1992(2) Mah. LR 737 at 738, 739, (Bom).
92. B. Chandra Mani Kyamma v. B. Sudarsana Rao alias saleem
Mohammad. 1989 (1) Cr.LC 505 at 526.
93. Umi (1882) 6 Bom 126.
94. Millard (1887) 10 Mad 218.
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95. Nand Lal Singh (1902) 6 CWN 343; Hub Ali (1923) 21 ALJ 187.
96. Chand Dhawan, AIR 1992 SC 1379; Hamad, AIR 1931 Lah 194;
Ananda (1993) Supp 3 SCC 68: 1993 SCC (Cri) 868.
97. Talep Ali v. Sabdar Khan (1940) 45 CWN 84.
98. Gajja Nand (1921) 2 Lah 288.
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Code, 1860. 99 This case does not seem to lay down sound law.
The accused remained present at the time of the celebration of
a marriage, which they knew was a void marriage under
Section 494, Indian Penal Code, 1860, and they threw holy
rice on the couple during the performance of the marriage.
One of the accused distributed pan after the marriage
ceremony was over. It was held that the acts of the accused
were not acts of abetment of the offence of bigamy punishable
under Section 494. 100 Just because the mother of the accused
was present at the time of marriage along with the other
petitioners, it can not be said that she was there only to
commit abetment of the offence to be committed or committed
by the accused. The evidence adduced by the prosecution
witnesses did not show that the presence of the petitioners
had not remained present at the time of the marriage the
offence under Section 494, would not have taken place. 101
In the case of Kannan v. Selvamuthukani, 102 allegation
were that accuse married co-accused during subsistence of
first marriage with complainant in presence of co-accused
persons. Accused obtained a decree of divorce which was set
aside in appeal. Evidence of complainant establishes beyond
doubt that accused married co-accused, after set aside of
decree of divorce. Evidence of witnesses however does not
conclusively established that fact that decree of divorce was
set aside was known to co-accused persons. Hence, it was
held that it can not be presumed that she knew that the
decree of divorce was set aside, co-accused entitled to benefit
106. Mathamma v. Munuswamy, AIR 1951 Mad. 888 at 889; ILR 33 Mad
371; M.S. David v. Sudha, AIR 1950 Mys. 26 at 29.
107. M.H.C.R. (App.) 3.
108. John Jiba Chandra Dutta v. Abinash Chandra Sen, AIR 1939 Cal 417
at 417-418.
109. Abraham v. Abraham, 9 M.I.A. 194 at 243, 244.
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127. 1995 Cri.LJ 2926 (SC): (1995) 3 SCC 635: 1995 SCC (Cri) 569: AIR
1995 SC 1531.
128. Id., at 2932.
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129. Ibid.
130. Ibid.
55
133. Ibid.
134. Id. at 2449.
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147. Ghulam Mohammad (1932) 33 PLR 1062: (1933) 34 Cri LJ 77. See
Nainsukh (1874) 1 OD44 where the court held if a child marriage was
not consummated by cohabitation a civil action for damages would lie
but not a prosecution under this Section.
148. Jay Gunnessa Bibi v. Mohammad Ali Biswas, AIR 1938 Cal 71: (1938)
1 Cal 139.
149. Shafi-ullah AIR 1934 All 589: (1934) 35 Cri.LJ 1053 (All).
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155. Attorney – General of Ceylon v. Reid, (1965) 1 All. E.R. 812 at 817.
156. AIR 1947 Bom 272.
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162. John Jiban Chandra Datta v. Abinash Chandra Sen (1939) 2 Cal 12.
163. Mussamat Ruri, AIR 1919 Lah 389: (191) 20 Cri.LJ 3 (Lah).
164. Robert Skinner v. Charlotte Skinner (1897)25 Cal 537, 546 (PC). Se
Noor Jehan v. Eugene Tiscenko (1941) 45 CWN 1047 on appeal (1941)
46 CWN 465.
165. Supra note 15 at 2432.
166. 1994 (31) All. Cr.C. 777 at p. 779 (SC): 1994 J.C.C. 621 at pp. 622,
623 (SC).
66
170. Ibid.
171. Supra note 15 at 2446.
68
172. Ibid.
173. Id. at 2447.
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174. Ibid.
175. K.D. Gaur, Commentary on the Indian Penal Code, 1402, Edition,
2006.
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Section 495, Indian Penal Code, 1860. This was the view of
Parsons and Ranade, J.J., in a case in which the accused,
who was a child of ten, was re-married to the prosecutor by
her mother during the lifetime of her first husband, upon
which she was convicted under Section 495, Indian Penal
Code, 1860, but the court quashed her conviction on the
ground that she had not attained sufficient maturity of
understanding to judge of the nature and consequence of her
conduct on the occasion of her second marriage. 182
(b) Length of separation from the husband :
The question whether the gravity of this offence
depended upon the length of separation from the husband,
was considered in a case in which the accused re-married on
her husband having absented himself for sixteen months,
where upon she was convicted under Section 495, Indian
Penal Code, 1860, by Loch and Kemp, J.J., though Glover, J.,
was in favour of indulgence. 183 Here, the prisoner was the wife
of a tea garden coolie who used to absent himself daily for
long periods. During one such absence she contracted a
second marriage. She appears to have acted on a casual report
that her husband was dead, but she took no steps to ascertain
the truth of this report, nor did she believe it, for she neither
broke her bangles nor performed the other obsequial rights
customary in her caste. At any rate her second marriage was
not contracted in the bona fide belief of the death of the first
husband, and as she had failed to inform her second husband
of her previous marriage, the court convicted her under
184. Ibid.
185. Supra note 87.
186. Karuppiah Servai v. Nagavalli Ammal, 1982 Cri.LJ 1362 (Mad): 1982
MLJ (Cri) 19 : 1982 MLR 205 (Mad).
187. Usman v. Bhudhu Alias Abdullah, AIR 1942 Sind, 92 at 93; Mst. Hajul
v. Palio, AIR 1936 Sind 189 at 190; Emperor v. Pitamber Singh, ILR 5
Cal. 566 (F.B.); Arshed Ali, 13 C.L.R. 125; Empress of India v. Kallu,
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I.L.R. 5 All. 233; Nizair Khan, ILR. 36 All 1 (It may be proved
ceremony performed).
188. Supra note 1 at 62.
189. AIR 1966 SC 614: 1966 Cri LJ 472 (SC).
190. Supra note 186.
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194. Narotam, AIR 1978 SC 1542: 1978 Cri.LJ 1612 (SC): 1980 SCC (Cri)
113.
195. Anandrao, AIR 1972 SC 1232; Ashok Hurah (1997) 4 SCC 226.
196. Ananda (1993) Supp 3 SCC 68: 1993 SCC (Cri) 868.
197. Ibid.
198. Ritha, AIR 1926 Nag 127: (1926) 27 Cri.LJ 74 (Nag).
199. Darhsan Singh, 1982 HLR 4 (P&H).
200. Didar Singh (1983) 2 Crimes 144 (P&H).
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201. Sindhiya Devi, 1974 Cri.LJ 1403 (All): 1974 All Cr.C. 341.
202. Supra note 175 at 1401.
79
203. Ibid.
204. Supra note 175 at 1399.
205. Supra note 131 at 40.
206. Ibid.
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