The previous definition of bigamy consisted of these stated words “having a husband or wife”, but these words become vague once the first marriage ceases to be legal after separation.
Thus the definition of bigamy under Section 494 of IPC was suggested to be redrafted.
According to Section 5 of the Hindu Marriage Act,1995 the conditions necessary at the time of marriage is that both the partners getting married should not be having a living spouse.
But there is an exception provided by Section 494 of IPC, it states that either of the partners can contract a second marriage after the long absence of her partner for a period of seven years.
This Section states that any person who is already having a husband or wife and marries another person in existence of previous spouse, then the person shall be punished with imprisonment which shall extend to seven years and would be liable to fine.
But a person can not be convicted under this section when the marriage has already been declared void by the court.
When one of the spouses is missing for a period of seven years and there is no information about his existence then the other partner can contract another marriage. But the spouse needs to open the facts before the person whom they are getting married.
Essentials of Section 494 of IPC
The first marriage should be according to the law i.e, it should be legal
Second marriage should have taken place
The first marriage should be existing
The spouse must be alive
Both marriages should be valid
Classification of offence
It is a non-cognizable offence.
It is a bailable offence
Who can file a complaint
Any person who has been deceived by their partner can file the complaint.
In the case of a wife, her father, mother, brother, sister or any person related to her by blood, with the leave of the court can file a complaint on her behalf.
In the case of the husband, only he is permitted to file the complaint.
Hindu Marriage Act, 1955
Section 17. Punishment of bigamy.—Any marriage between two Hindus (including Buddhist, Jaina or Sikh) solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly.
Ingredients of offence of Bigamy
For an offence of bigamy to have been committed the following ingredients are required (i) the accused must have contracted first marriage (ii) he/she must have married again (iii) the first marriage must be subsisting (that is no divorce has taken place) (iv) the first spouse must be living, Pashaura Singh v. State of Punjab, (2010) 11 SCC 749
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