This article is written by Nipasha Mahanta, a student of NUJS, Kolkata.

Plural marriage or bigamy is a criminal offense. Still it endures at all levels and in both country
and urban groups to a little degree. Muslims are legitimately permitted to have up to four wives.
Also, polyandry was a practice amongst the untouchables and numerous tribal social orders and a
few groups of Kerala. Monogamy wins the conscience of a larger part all through India.
The discussion below will clarify queries relating to the legal status of such an offence in India
and parallel questions. Through this piece the questions like
What are the essential ingredients for constituting the offence of bigamy?
When does marrying twice not amount as an offence?
What is the Conversion Controversy?
Is there any legal remedy for the second wives?
Is proof required for lodging complaints under bigamy law?
What is the type and quantum of punishment prescribed for the offence?
Does attending a second marriage amount to abetting the same?
Does this penal provision apply to tribals?
Is registration of marriage compulsory?
What is effect of Hindu law of succession upon bigamy?
Can children born out of the second wedlock inherit father ancestral property?
Will bigamy laws be applicable to live-in relationships?

Relevant provisions of law: The provisions of the law which regulate this scenario have been
mentioned as under:
Section 494 of the Indian Penal Code states that Marrying again during lifetime of husband or
wife: Whoever having a husband or wife living, marries in any case in which such marriage is

void by reason of its taking place during the life of such husband or wife shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine. Exception to this section is that it 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 subsequ
Read more: Is marrying twice a crime in India? - iPleaders http://blog.ipleaders.in/is-marryingtwice-a-crime-in-india/#ixzz4BiNQlgzn

Section 494 of the Indian Penal Code states that Marrying again during lifetime of husband or
wife: Whoever having a husband or wife living, marries in any case in which such marriage is
void by reason of its taking place during the life of such husband or wife shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine. Exception to this section is that it 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.

Section 495 Indian Penal Code states that, Same offence with concealment of former marriage
from person with whom subsequent marriage is contracted- Whoever commits the offence
defined in the last preceding section having concealed from the person with whom the
subsequent marriage is contracted, the fact of the former marriage, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall be liable
to fine.
The following table will provide us a quick preview as to provision of prosecution for bigamy
and other allied offences with respect to man and woman.
Offence by man
Man can be prosecuted for bigamy.
Man (married + unmarried) + sexual
intercourse with wife of another= Man can be
prosecuted for adultery
Man (married) + sexual intercourse with an
unmarried woman= No offence committed by
man
Man (unmarried) + sexual intercourse with
woman (unmarried) = No sexual offence
committed by man.

Offence by woman
Woman can be prosecuted for bigamy.
Woman (married + unmarried) + sexual
intercourse with the husband of another =
Woman cannot be prosecuted for adultery.
Woman (married) + sexual intercourse with an
unmarried man= Woman cannot be prosecuted
for any offence.
Woman (unmarried) + sexual intercourse with
unmarried man= Woman cannot be prosecuted
for any offence.

However, inspite of the existence of the above provisions, first wives find that evidence of the
second marriage is difficult (most of them are performed secretly or by token rituals like
exchange of garlands in a temple) to come upon for criminal prosecution, for the courts demand
hard proof. Though Section 494 of the Indian Penal Code (IPC) punishes bigamous husbands, if
convicted, to a fine or seven years of imprisonment, or both, being a non-cognisable offence
(except in Andhra Pradesh), it is ineffective.

What are the essential ingredients for constituting the offence of bigamy?
1. Existence of a previous marriage
One of the essential ingredients of the offence of bigamy is the existence of a previously
contracted marriage. It attaches criminality to the act of second marriage by a husband or by a
wife who has a living wife or husband. The second marriage is void. It is, therefore, essential to
establish the offence of bigamy that at the time of the second marriage, the person was already
married. The first marriage should be subsisting at the time of the second marriage and should be
a validly contracted one. If the first marriage is not a valid marriage, the second marriage does
not amount to bigamy. The first husband or wife should be alive when the second marriage was
contracted.
2. Second Marriage has to be valid in itself:

In order to attract the provisions of this section, not only the first marriage but also the second
marriage should be a valid one. This means that all the necessary ceremonies required by the
personal laws governing the parties to the marriage should have been duly performed.
3. Second marriage to be Void solely by reason of First Husband or Wife Living:
The offence of bigamy is made out only when the second marriage is rendered void by reason of
its taking place during the life of the first wife or husband. It has no application to cases where a
second marriage is permitted under the personal laws governing the parties.

When does marrying twice not amount as an offence?

1. S 494 itself carves out two exceptions wherein the contracting of the second marriage
will not be an offence. They are
(i). When the first marriage has been declared void by a competent court: In the first
circumstance stated in the exception, the previous marriage is not in subsistence in view of the
fact that it had been declared void by a court and hence, one of the essential ingredients to
constitute the offence of bigamy is absent, and
(ii). When the former husband or wife has been continually absent for a period of over
seven years and not heard of as being alive, provided that these facts are disclosed to the
person with whom the second marriage is contracted: The second circumstance envisages a
situation wherein a person has been missing continuously for a period of over seven years. Under
S 108 of the Indian Evidence Act, 1872 when it is proved that a man has not been heard of for
more than seven years by those who would naturally have heard of him if he had been alive,
there is a presumption that he is dead. The burden of proving that he is alive is on the person
wanting to establish the same. The second exception to S 494 is in recognition of this principle.
By virtue of presumption provided under S 108 of the Evidence Act, it may be safely concluded
that a person who is missing for more than seven years, is presumed to be dead and when the
other spouse contracts a second marriage, it follows that there is no husband or wife living at the
time of the second marriage and hence, the offence of bigamy is not made out.
Therefore, bigamy shall not apply if the first husband or wife is dead, or the first marriage has
been declared void by the Court of competent jurisdiction, or the first marriage has been
dissolved by divorce, or the first spouse has been absent or not heard of continually for a space
of seven years. The party marrying must inform the person with whom he or she marries of this
fact.
When the second marriage is invalid:
The factum of second marriage, with necessary ceremonies, thereof, needs to be proved. Where
the essential ceremonies necessary to constitute a valid marriage are not performed, there is no
marriage at all in the eyes of law. The mere keeping of a concubine or mistress is not sufficient to
attract the penal consequences of this section as there is no marriage and the concubine does not
enjoy the status of a wife.

When personal laws or customs governing the parties permit it:

Second marriage by a Muslim, who is entitled to four wives, is not an offence under this section.
Prior to the enactment of the Hindu Marriage Act, a Hindu man marry more than one wife.
However, after the coming into force of the Hindu Marriage Act, the situation has changed. S 17
of the Hindu Marriage Act makes a second marriage void. The effect of this provision is to make
S 494 of the Penal Code applicable to Hindus.
The Conversion Controversy:
The law identified with monogamy under the HMA is brimming with genuine deficiencies and
provisos, and joined with its procurements identified with marriage customs, gives in-assembled
gadgets (the principal being change to Islam) for a simple shirking of the considerable number of
outcomes of its infringement, while the non-cognisable IPC procurements force aggrieved first
wives of all groups to quietly endure the tragedies. It has thus recommended by the 227th report
of the Law Commission of India in its report titled Preventing Bigamy via Conversion to Islam
A Proposal for Giving Statutory Effect to Supreme Court Rulings which was presented to the
Ministry of Law and Justice, that a new section be inserted in the HMA to the effect that a
married person governed by it cannot marry again even after changing religion unless the first
marriage is dissolved or declared null and void in accordance with law, and if such a marriage is
contracted, it will be of no legal effect, and attract application of Sections 494 and 495 of the
IPC. The commission has recommended that similar provisions be inserted in the Christian
Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim
Marriages Act (DMMA) of 1939. In respect of the latter, it has been suggested that the proviso to
Section 4 of the DMMA, saying that this would not apply to a married woman who was
originally a non-Muslim if she reverts to her original faith, be deleted. Further, certain provisions
should be added to the Special Marriage Act 1954 and offences relating to bigamy under the IPC
sections should be made cognisable by necessary amendment of the Criminal Procedure Code
(CrPC).
A burning controversy is Hindu men converting to Islam, only for the purpose of contracting a
second marriage, thereby surpassing the strict Hindu law which enforces monogamy. Two major
questions which have perplexed the judiciary are as follows1).Whether by virtue of the conversion of the respective husbands to Islam, would the second
marriage be a valid marriage?
2).Whether such husbands would be guilty of the offence of bigamy under S 494, IPC?
The answers have been provided in the judgment of Sarla Mudgal, President, Kalyani v Union
of India, AIR 1995 SC 1531 as under1. One spouse, by changing his or her religious beliefs cannot forcefully enforce his or her
newly acquired personal law on a party to whom it is entirely alien. Such a practice
would be opposed to justice.

2. The first marriage under the Hindu Marriage Act subsists even after the conversion. It is
only a ground for divorce(S 13(1)(ii)). It can be dissolved only by a decree of divorce
granted under the Act.
3. The wholesome effect of S 11 Hindu Marriage Act and S 17 Hindu Marriage is such that
the fact that a marriage is void for reason that the person has married during the lifetime
of his or her spouse, then they are punishable under s 494 and 495, IPC, for bigamy.
4. A second marriage cannot be said to be void per se after a husband has embraced Islam, it
would be void with respect to the first wife who married him under the Hindu Law and
which marriage continues to be governed by Hindu Marriage Act.
5. In instances where one spouse remains a Hindu and the other converts to Islam, the court
shall decide according to justice, equity and good conscience and there will not be any
effect of personal laws. If the second marriage is held to be void, then it would attract the
provisions of S 494 IPC.
In short, when parties to a marriage get married under a particular personal law, the marriage will
continue to be governed by the personal law under which they got married, irrespective of the
fact that either of the spouses have converted to another religion. Hence, spouses cannot escape
liability under S 494, IPC, by resorting to conversion to Islam or any other religion. Mere
conversion does not automatically dissolve the first marriage, and thereby doe not absolve the
person from criminal liability for committing the offence of bigamy.

Is there any legal remedy for the second wives?

The social shame appended with being a second wife, the nonattendance of any lawful status to
the relationship, and the gigantic torment of being swindled into the marriage are without a doubt
greatly discouraging for a lady. Despite the fact that there is no acknowledgment given to a
second wife, because of the legal understanding of existing law as talked about above, she may
have a few shots of getting support. Without any unmistakable procurements under the law, her
risks of guaranteeing her rights are to a great extent reliant on the carefulness of the judges. Even
under the criminal law, it is greatly to demonstrate polygamy, as the marriage must be
legitimately performed to demonstrate the offense of polygamy. Normally these provisos in the
law are misused by men to shield themselves in such cases.

Cheating: In the same line, S 495 IPC subjects perpetrator of the offence of bigamy to
severe punishment if he or she has concealed the fact of his or her former marriage while
contracting the second marriage. Additionally, complaint for cheating can be filed under
section 415 of IPC in case the person hides the fact of first marriage.

Maintenance: In Pyla Mutyalamma @ Satyavathi vs Pyla Suri Demudu & Anr[1], it was
held that Validity of marriage will not be a ground for refusal of maintenance. Here,
the appellant Pyla Mutyalamma alias Satyavathi was the second wife of respondent Pyla
Suri Demudu, having married in a temple under Hindu rites in 1974. They had three
children and after 25 years the husband deserted her. A trial court in Andhra Pradesh

awarded Rs. 500 as maintenance and on appeal by the husband the Andhra Pradesh High
court set aside the order holding that she being the second wife was not entitled for
maintenance. Satyavathi appealed against this judgment.
The Supreme Court held that if the second wife was deserted by her husband, she will be entitled
to get maintenance from him under Section 125 Cr.P.C., notwithstanding the validity of the
marriage. Giving this ruling, a Bench of Justices H.S. Bedi and Gyan Sudha Misra said that in a
case under Section 125 Cr.P.C. the Magistrate can take a prima facie view of the matter and it is
not necessary for him to go into matrimonial disparity between the parties in detail in order to
deny maintenance to the claimant wife. Writing the judgment, Justice Sudha said that Section
125 Cr.P.C. proceeds on de facto marriage and not marriage de jure . Thus, validity of the
marriage will not be a ground for refusal of maintenance if other requirements of Section 125
Cr.P.C. are fulfilled. The Bench also said that the proof of marriage required for a proceeding
under Section 125 of Cr.P.C. need not be as strong or conclusive as in a criminal proceeding for
an offence under Section 494 Indian Penal Code, since the jurisdiction of the Magistrate under
Section 125 Cr.P.C. being preventive in nature the magistrate cannot usurp the jurisdiction in
matrimonial dispute possessed by the civil court. The magistrate would not enter into
complicated questions of law as to the validity of the marriage according to the sacrament
element or personal law and the like, which are questions for determination by the civil court. If
the evidence in a proceeding under Section 125 Cr.P.C raises a presumption that the applicant
was the wife of the respondent [in this case] it would be sufficient for the magistrate to pass an
order granting maintenance under the proceeding. The Bench said under the law a second wife
whose marriage was void was not entitled for maintenance. But the law also presumes in favour
of marriage and against concubinage when a man and woman have cohabited continuously for a
long number of years, and when the man and woman are proved to have lived together as man
and wife, the law will presume. In the instant case, the Bench allowed her appeal and restored
the trial courts order granting her Rs. 500 as maintenance[2].

Second wife can sue for bigamy: The Supreme Court has ruled that a woman with
whom second marriage is performed is also entitled to drag the man to court under
section 494 of the Indian Penal Code (IPC) which makes bigamy a criminal offence,
punishable with a jail term of maximum seven years. To hold that a woman with whom
second marriage is performed is not entitled to maintain a complaint under section 494
IPC though she suffers legal injuries would be height of perversity was held.

Here, a bench headed by justice JM Panchal ordered the prosecution of an Andhra Pradesh
policeman for bigamy. Rejecting the policemans contention that complaint of dowry harassment
against him by the second woman was not maintainable because she was not his legally wedded
wife in view of subsistence of his first marriage, the bench restored the charges under section
498A of IPC. The section 494 of IPC is a gender neutral, but, generally it is men who are at the
receiving end of this provision and it is the first wife who as an aggrieved person invokes the
anti-bigamy law. Maintaining that section 494 is intended to achieve laudable object of
monogamy, the bench said it does not restrict right of filing complaint to the first wife and
there is no reason to read the said section in a restricted manner It was commented by senior
advocate Geeta Luthra that the judgement explains the meaning of the phrase aggrieved person

and also gives an alternative to many women who cannot take benefit of section 498A because of
them being victims of an illegal/second marriage.[3]

What is the procedure to file a complaint under S494?

The individual wronged can record case of bigamy either in court or at the police station. The
father of an oppressed wife can likewise make a complaint under area 494/495 of the Indian
Penal Code. A request for pronouncing the second marriage as void can be recorded by the
parties of second marriage and not the first spouse.
Is proof required for lodging complaints under bigamy law?
In the case of K.Neelaveni vs State Rep.By Insp.Of Police & Ors[4] ,the Supreme Court has
held that while lodging a criminal complaint it is not necessary for the aggrieved party to prove
that marriage ceremonies were performed as it is for the trial court to decide the veracity of the
allegations. The Madras High Court has also held that in order to maintain the charge under
section 494 IPC, there should be evidence to show that essential ceremonies were performed at
the time of alleged second marriage and such ceremonies and other requirements for a valid
marriage have to be established by adducing evidence in the course of trial and a valid marriage
between a man and woman cannot be presumed from the fact that a child was born out of their
relationship. The apex court gave the verdict while upholding the appeal of a woman K
Neelavani, challenging a Madras High Court order quashing the charge sheet filed against her
husband S K Siva Kumar under IPC Sections 406 (breach of trust) and 494 (bigamy-second
marriage).
Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a
matter of trial. Essential ceremonies of the marriage were gone into or not is a matter of trial,
held by a bench of Justices D K Jain and C K Prasad.
What is the type and quantum of punishment prescribed for the offence?
Bigamy is a non-cognizable offence. It is bailable and compoundable with the permission of
court if the offence is committed under section 494 of the IPC. The punishment for bigamy is
imprisonment, which may extend till 7 years or fine or both. In case the person charged of
bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be
punished with imprisonment of up to 10 years or fine or both. Such offence under section 495 is
not compoundable.

Does attending a second marriage amount to abetting the same?

No, it does not. It is a settled law that mere participation in the second marriage would not ipsofacto make the relatives or the participants liable for abetment to bigamy since abetment
connotes an active suggestion or support to the commission of the crime. ruled Delhi High
Court in Manju Verma & Ors. vs State & Anr[5].

In Muthammal and Ors. vs. Maruthathal[6], it was held that Instigation must have reference to
the thing that was done. By mere association of the accused persons in this case, who are charged
for an offence of abetment and the principal offender in the absence of any material to show that
there was an instigation by the petitioners or that there was any intention either in aiding or in
commissioning the offence committed by the first accused, it cannot be said that they have
committed an offence of abetment. The accused persons can be charged and convicted for the
offence of abetment where there is evidence to show such persons have instigated or otherwise
abetted in the acts of the person who has actually committed the offence or the crime. In so far as
the instant case is concerned, from the evidence, it cannot be said that the petitioner have
committed an offence of abetment. As stated above, abetment is instigation to a person to do an
act in a certain way or aid some other person in doing an act which is an offence. In other words,
it is a preparatory act and connotes active complicity on the part of the abettor at a point of time
prior to the actual commission of the offence. This was followed by the Delhi High Court in the
aforementioned case.

Does this penal provision apply to tribals?

No, it does not. It was reported in the Hindu[7] that the Supreme Court has affirmed a Delhi
High Court judgment that in the absence of a notification in terms of sub- section (2) of Section 2
of the Hindu Marriage Act 1955, no case for prosecution of a husband a tribal (Santhal) for
bigamy under Section 494 of the Indian Penal Code was made out by the appellant-wife, also a
tribal (Oraon), because the second marriage solemnised by him cannot be termed void either
under the 1955 Act or any alleged custom having the force of law. (According to sub-section 2
of Section 2, the 1995 Act shall not apply to any Scheduled Tribe within the meaning of clause
(25) of Article 366 of the Constitution unless the Centre directs otherwise in a gazette
notification).
As the parties admittedly belong to the `Scheduled Tribes within the meaning of clause (25) of
Article 366, as notified by the Constitution (Scheduled Tribes) Order, 1950 as amended by the
Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of
1987 and 15 of 1990 passed in terms of Article 342 and in the absence of specific pleadings,
evidence and proof of the alleged `custom making the second marriage void, no offence under
Section 494 of the IPC can possibly be made out against the respondent, a Bench said. Mr.
Justice R.P. Sethi held that the trial magistrate and the High Court have rightly dismissed the
complaint of the appellant. The Bench, which included Mr. Justice K.T. Thomas noted that in
order to prove that the second marriage was void, the appellant was under an obligation to show
the existence of a `custom which made the marriage null and ineffectual, having no force of law
or binding effect, incapable of being enforced in law or non-est. The fact of second marriage
being void is a sine qua non for the applicability of Section 494 IPC. The Bench, however, said
the appellant is at liberty to get her right (to maintenance, succession and other benefits as `the
legally wedded wife of the respondent) established by way of civil proceedings in a competent
court. If any such proceedings are initiated, the same would be decided on their merits in
accordance with the principles of the pleadings and proof, not being influenced by any of the
observations made by the trial magistrate or the High Court.

The woman filed a criminal complaint in the court of the Chief Metropolitan Magistrate, New
Delhi, stating her marriage was solemnised with the respondent in Delhi according to Hindu
rites and customs. But he solemnised a second marriage with another woman (accused 2). The
wife relied upon a custom in the tribe which mandated monogamy as a rule. It was conceded
by the appellant that the parties to the petition are two `tribals, who otherwise profess
Hinduism, but their marriage being out of the purview of the Hindu Marriage Act, 1955 in the
light of Section 2(2) of the 1955 Act, are thus governed only by their Santal customs and usage.

Is registration of marriage compulsory[8]?

Yes, in order to stop second marriages and child marriages, the registration of marriages is made
compulsory as directions of Supreme Court. The registration of Hindu marriages is not
compulsory. However, registration of ones marriage provides proof of it for legal purposes and
therefore we highly recommend it for women as a safety measure. A Hindu marriage register is
found in the Office of the Registrar of Marriages, usually located in District or Divisional court
compounds. The Registrar is normally some type of magistrate. A Hindu marriage can also be
registered under the Special Marriage Act, 1954 if both parties so desire. If that is done, the
marriage is treated as a civil marriage governed by that Act from the date of registration.

What is effect of Hindu law of succession upon bigamy?

As per Hindu code, only the first wife is a legal heir of the husband while the second wife is not
entitled to any share in the ancestral estate and, if the husband has died without leaving a will,
even in his self-acquired property. Once the second marriage is declared null and void, the wife
concerned cannot even claim maintenance as a matter of right.
In 2010, the Bombay High Court at Goa while ruled that a second wife marrying in good faith
has a share in the estate of her husband and held that the first wife is entitled to half the share
while the share of the second wife in the property of the husband is 1/8th. It concluded that a
woman who marries a man in good faith when his previous marriage is in subsistence has the
right to inheritance, the high court set about determining the shares of the first wife, the second
wife and the children in the husbands property. The counsel of the second wife had relied on a
case decided by the Coimbra High Court in Portugal in 1950. He pointed out that in such cases
the first wife gets half the share, the second wife is entitled to 1/8th of the share and the
remaining 3/8th is to be shared among the children from both marriages. He also referred to
Article 1109 and Article 1235 of the Civil Code, 1867. The argument of the lawyer appearing on
behalf of the first wife, who argued that the judgment of Coimbra High Court cannot have any
persuasive value was rejected and Justice N A Britto observed that courts must accept any light
from whatever source it comes. Little illumination is always good.
The court held that the explanation and illustrations given by Usgaonkar are correct and in
consonance with Article 30 of the Family Laws of Goa, the high court of Bombay at Goa ordered
that the share of the fist wife would be half, the second wifes share would be 1/8th and the only
child (a son from the first marriage) would have a 3/8th share in the estate. Interestingly, the
Civil Code states that marriage, as per the custom of the country, consists in the communion
between the spouses of all their properties. That is half the property is held by the husband and

the remaining half by the wife. Article 1109 of the Civil Code provides that half the properties
held by the spouse who remarries, shall be excluded from the communion. Article 1235 provides
that a man or a woman who remarries and has children or other descendants from a previous
marriage, may not share with nor donate to the other spouse more than half of his/her assets at
the time of the marriage[9].
In Vidyadhari & Ors vs Sukhrana Bai & Ors[10], Sukhrana Bai deserted Sheetaldeen soon after
their marriage. Thereafter Sheetaldeen married Vidyadhari and four children were born to them.
After his death, Vidyadhari, who was his nominee, received pension and other benefits due to
Sheetaldeen. However, both Sukhrana Bai and Vidyadhari filed applications claiming the
succession certificate for his movable property. The trial court decreed in favour of the second
wife. But on appeal, the Madhya Pradesh High Court reversed the finding and granted the
certificate in favour of the first wife.
However, in 2008, the apex court allowed the appeal said she continued to live with Sheetaldeen
as his wife for a long time. She enjoyed the confidence of Sheetaldeen, who nominated her for
his Provident Fund, life cover scheme, pension, life insurance and other dues. Under such
circumstances, she was preferable to the legally wedded wife, Sukharna Bai, who never stayed
with Sheetaldeen as his wife but went to the extent of claiming the succession certificate to the
exclusion of Sheetaldeens legal heirs. In granting the certificate, the court had to use its
discretion where rival claims, as in this case, were made for the property of the deceased, the
Bench pointed out. The Supreme said that though they agreed with the High Court that Mrs. Bai
was the only legitimate wife yet, they would choose to grant the certificate in favour of Mrs.
Vidyadhari, who was his nominee and mother of his four children. The court also granted
Sukharna Bai one-fifth share of the property besides the four children of Vidyadhari. Vidyadhari
was not entitled to any share for herself and that she would have to protect Sukharna Bais share
and hand it over to her was also observed.
The Supreme Court had held that children born of second marriage are entitled to a share in the
property of their father though the second marriage itself is void. If a person marries a second
time during the subsistence of his first marriage, children born of the second marriage will still
be legitimate was observed by Bench consisting of Justices S.B. Sinha and V.S. Sirpurkar. Mr.
Justice Sirpurkar said the law was clear that the second wife who was cited as the nominee by
her husband to claim the benefits arising out of his employment could claim succession
certificate in favour of her children. However, she would not be legally entitled to receive a share
from her husbands property[11].

Can children born out of the second wedlock inherit fathers ancestral property?
Yes, they can. In Revanasiddappa vs Mallikarjun case[12], Justices G.S. Singhvi and A.K.
Ganguly ruled that children from a second wife had rights to their fathers ancestral property.
Section 16(3) of the Hindu Marriage Act as amended, does not impose any restriction on the
property right of Illegitimate Child except limiting it to the property of their parents. Therefore,
such children will have a right to whatever becomes the property of their parents whether self
acquired or ancestral.[13]

Will bigamy laws be applicable to live-in relationships?

No, they will not be applicable. The supreme court of India in Kushboo case[14] virtually
equated live in relationship to marital relationship[15]. The Supreme Court opined that a man
and woman living together without marriage cannot be construed as an offence which turned out
to be an observation that could cheer votaries of pre-marital sex and live-in partners.When two
adult people want to live together what is the offence? Does it amount to an offence? Living
together is not an offence. It cannot be an offence, a three judge bench of Chief Justice K.G.
Balakrishnan, Deepak Verma and B.S. Chauhan observed. The apex court had also said there was
no law which prohibits live-in relationship or pre-marital sex.
In another case, the Supreme Court also said children born out of live-in are not illegitimate[16].
The Supreme Court has clarified that children born out of a live-in relationship, where the
couple have lived together for a long time as husband and wife, could not be called illegitimate.
The live-in- relationship if continued for such a long time, cannot be termed in as walk in and
walk out relationship and there is a presumption of marriage between them. The Supreme
Court in 2004 in the Rameshchandra Daga vs Rameshwari Daga[17] case , upheld the
maintenance rights of women in informal relationships or invalid marriages. In 2010, the apex
court had held in Madan Mohan Singh vs Rajni Kant case said, The courts have consistently
held that the law presumes in favour of marriage and against concubinage, when a man and
woman have cohabited continuously for a number of years. However, such presumption can be
rebutted by leading unimpeachable evidence. The same year, the court had in another judgment
hinted at the legitimacy of children born out of such relations. It is evident that Section 16 of the
Hindu Marriage Act intends to bring about social reforms, conferment of social status of
legitimacy on a group of children, otherwise treated as illegitimate, as its prime object. Section
16 of Hindu Mariage Act provides, Notwithstanding that a marriage is null and void under
Section 11, any child of such marriage who would have been legitimate if the marriage had been
valid, shall be legitimate, whether such a child is born before or after the commencement of the
Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in
respect of the marriage under this Act and whether or not the marriage is held to be void
otherwise than on a petition under this Act.
In 2014, giving an important clarification on live-in relationships, the Supreme Court has said
that if a man and woman lived like husband and wife for a long period and had children, the
judiciary would presume that the two were married. A bench of Justices B S Chauhan and J
Chelameswar issued the clarification on a petition filed by advocate Uday Gupta, who had
questioned certain sweeping observations made by the Madras high court while dealing with the
issue of live-in relationships. Importantly, the SC said children born out of prolonged live-in
relationships could not be termed illegitimate. Gupta had challenged the HCs observation that
a valid marriage does not necessarily mean that all the customary rights pertaining to the
married couple are to be followed and subsequently solemnized. His counsel, M R Calla, sought
deletion of the HCs observations terming them as untenable in law. He apprehended that these
remarks could demolish the very institution of marriage. The bench went through the judgment
and said the HCs observations could not be construed as a precedent for other cases and would
be confined to the case in which these were made. Justices Chauhan and Chelameswar said, In
fact, what the HC wanted to say is that if a man and woman are living together for a long time as

husband and wife, though never married, there would a presumption of marriage and their
children could not be called illegitimate.
These cases virtually encourage relationship outside marriage which has created confusion in the
minds of people and the demarcation between marriage and live-in relationships have got
blurred. The law of bigamy is not applicable to live- in relationship as there is no legally
contracted marriage. In order to prove offence of bigamy, there should ample evidence to prove
they have contracted second marriage without nullifying the first marriage.

Is S489A of Indian Penal Code, 1860 applicable to second wife?

In A.Subash Babu vs State Of A.P.& Anr[18], it was contended by the petitioners counsel that
marriage of the accused with the victim in this case who had stated to be second wife of the
accused, was void ab initio and therefore she could not claim herself to be a legally wedded wife
who can invoke offence punishable under Section 498A IPC. In Shivcharan Lal Verma v. State of
M.P[19], it was held by the Supreme Court that when marriage of the accused with the deceased
was during subsistence of valid marriage between the accused and his first wife, was null and
void, conviction of the accused for offence punishable under Section 498A IPC for harassing the
deceased who committed suicide is not sustainable in law. In Reema Aggarwal v. Anupam[20], the
Supreme Court observed that the question as to who would be covered by the expression
husband for attracting Section 498A does present problems. Etymologically, in terms of the
definition of husband and marriage as given in the various Law Lexicons and dictionaries
the existence of a valid marriage may appear to be a sine quo non for applying a penal provision.
Admittedly, the victim in this case was the second wife of the petitioner who is said to have
married her by suppressing the fact of his first wife living. Therefore, prima facie marriage
between the petitioner and the second respondent is void and therefore, it cannot be said that the
alleged harassment or cruelty meted out by the petitioner towards her attracts penal provision
under Section 498A I.P.C. Thus, the petitioner can get limited relief in this petition to the extent
of offence punishable under Section 498A IPC only[21].
In 2013, the Kerala High Court held that a legally valid marriage is necessary to sustain
complaints alleging cruelty by husband or relatives. Justice B Kemal Pasha gave the ruling while
considering a petition filed by a mother-in-law, Suprabha Dharan of Parippally in Kollam,
seeking to quash a criminal case against her based on her daughter-in-laws complaint.
The police had registered a criminal case against the husband and in-laws based on the
complaint. In the petition filed through advocate Siby Mathew, the mother-in-law contended that
her sons marriage with another woman was subsisting during the period in which the alleged
acts of cruelty took place. Her son got divorced from his first wife only on April 30, 2003, and
then married this woman on October 14, 2003, as per Special Marriage Act. The alleged acts of
cruelty took place prior to registration of marriage. A valid marriage is a necessary ingredient to
invite an offence under Section 498A of IPC. As her sons first marriage was existing, his
relationship with the woman who complained could not create any valid marriage, the mother-inlaws counsel pointed out. Opposing this, the complainants counsel argued that a valid marriage
is not required to invite the offence under Section 498A, whereas a long collaboration in the form
of marriage is sufficient.

To decide the case, the court relied on a 2002 decision of the Supreme Court in Shivcharan Lal
Verma v State of Madhya Pradesh[22]. It was held by a three-member bench that a second
marriage will be null and void on account of the subsistence of the earlier valid marriage.
Quashing the case against the mother-in-law, the high court held that an offence under Section
498A cannot be included in the case for any period prior to October 14, 2003, when the marriage
was registered[23].

Latest Developments
The Hindustan Times reported[24] that the Supreme Court Monday held that Muslim
government employee who re-married without divorcing his first wife and in turn contravenes
service rules prohibiting the same could be sacked for breach of law. A bench, headed by
Justice TS Thakur, ruled that although Muslim personal law allows a man to marry more than
once, government rules prohibit employees from marrying twice during the subsistence of a valid
marriage he or she is liable to be terminated if the rule is violated. SC gave the verdict while
dismissing the appeal of Khursheed Ahmad Khan, against the Allahabad high court judgment
upholding Uttar Pradesh governments termination order. Khan, employed as irrigation
supervisor with the irrigation department, had married twice despite conduct rules prohibiting it.
He was removed from service on June 17, 2008. Khans plea of having divorced his first wife
was proved incorrect by departmental inquiry initiated against him. The affidavit he filed in
support of his contention was declared false.
[1] (2011) 12 SCC 189
[2]http://www.thehindu.com/todays-paper/deserted-second-wife-entitled-to-maintenance-fromhusband-court/article2402387.ece
[3] http://www.hindustantimes.com/newdelhi/second-wife-can-also-sue-husband-for-bigamysays-sc/article1-726367.aspx
[4] AIR 2010 SC 3191
[5] 2002 (3) AWC 2597
[6] 1981 Crl.L.J 833
[7] http://www.thehindu.com/thehindu/2001/02/16/stories/0216000g.htm
[8] http://indiatogether.org/manushi/issue136/hml.htm#sthash.VuucLX8p.nriNsSQ7.dpuf
[9]http://timesofindia.indiatimes.com/city/goa/Second-wifes-share-in-property-is1/8th/articleshow/5833851.cms
[10] 2008 (1) RCR (Civil) 900

[11] http://www.thehindu.com/todays-paper/tp-national/second-wifes-children-not-herselfentitled-to-property-apex-court/article1187406.ece
[12] (2011) 5 MLJ 392 (SC)
[13]http://taxguru.in/finance/illegitimate-child-property-parents-acquired
ancestral.html#sthash.kyMWlaSz.dpuf
[14] S. Khushboo vs Kanniammal & Anr (2010) 5 SCC 600
[15] http://www.thehindu.com/news/national/livein-relationship-premarital-sex-not-an-offencesupreme-court/article285361.ece
[16] http://www.thehindu.com/todays-paper/tp-national/child-born-out-of-livein-relationshipnot-illegitimate-sc/article5945690.ece
[17] II (2001) DMC 230
[18] 2010 (2) ALT (Cri) 56
[19] I (2007) DMC 120 SC
[20] (2004) 3 SCC 199
[21] http://indiankanoon.org/doc/1342950/
[22] I (2007) DMC 120 SC
[23] http://timesofindia.indiatimes.com/city/kochi/HC-Valid-marriage-must-for-complaints-ofcruelty-by-in-laws/articleshow/21381864.cms
[24] http://www.hindustantimes.com/Search/Search.aspx?op=story&pt=all&auth=Hindustan
%20Times
Read more: Is marrying twice a crime in India? - iPleaders http://blog.ipleaders.in/is-marryingtwice-a-crime-in-india/#ixzz4BiNFLdvB