The Nexus between Live-In Relationship and Bigamy

Abstract

This paper aims to critically analyze the element that constitutes bigamy under Hindu Marriage Act, 1955. The paper will further examine loopholes in the law regarding bigamy and live-in relationship. This paper also talks about the ambiguous and unclear approach of the judiciary to the Live-in relationship and how it affects the spouse. And it also deals with how penance of bigamy is escaped by live-in relationship partners.

Keywords:

Bigamy is akin to marriage, ceremonies, escape routes, and penance of bigamy.

Introduction

Bigamy is an offense under criminal law as well as in Hindu Marriage Act. Bigamy is basically when one person has married again even though his/her spouse is alive. The second marriage during the legacy of the first marriage is illegal in India and the relationship which arises from the second marriage does not have any validation in the eyes of law as well as in the society.

On one side second marriage is not allowed in India if the first marriage is still subsisting, on the other hand, the live-in relationship has gained half-hearted acceptance with the dawn of liberal thinking, especially in metropolitan cities. The practice of a live-in relationship is more commonly adopted by the husband who deserts his spouse and enters into a live-in relationship without attracting any penal consequences sadly clinching momentum. Although the husband is in a live-in relationship with other women or even married a woman with whom he is in a live-in relationship then also he can escape the penalty of bigamy.

“Chains do not hold a marriage together. It is threaded, hundreds of tiny threads, which sew people together through the years.”

• Simone Signoret

Marriage

According to the Black’s Law Dictionary Marriage means “the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex”[1].

Bigamy

In layman’s language, Bigamy means marrying again while one spouse is still alive. Black’s Law Dictionary defines ” The criminal offense of willfully and knowingly contracting a second marriage (or going through the form of a second marriage) while the first marriage, to the knowledge of the offender, is still subsisting and undissolved”[2].

Before the commencement of the Hindu Marriage Act, 1955 Bigamy and polygamy were accepted modus operandi amongst the Hindu men, as there was no customary bar on having more than one wife and this enjoyed a social acceptance. This can easily be evidence in the case of kinds. Kings in ancient times married twice or thrice as there was no customary bar on it.

However, after the passage of time Hindu Marriage Act, 1955 came which says second marriage contracted by a husband or wife having a spouse alive was considered to be void.

Section 5 of the Hindu Marriage Act 1955, provides a few conditions for the validity of Hindu Marriage, one of them is “neither party has a spouse living at the time of marriage”[3].

Section 11 says that “after the commencement of Hindu marriage act any marriage will be solemnized shall be considered null and void if it contravenes the certain condition specified in section 5 of Hindu Marriage Act”[4]. One of the conditions in section 5 of HMA is neither party should have a living spouse at the time of marriage.

Section 7 of the Hindu Marriage Act, 1955[5] reiterates that marriage between two Hindus is complete and binding when a man and woman have been married as per customary rites and the ceremonies performed by any of the two contracting parties that are inclusive of Saptapadi.

Section 17 Of the Hindu Marriage Act 1955, states that “a second marriage will be void if it takes place during the lifetime of spouse”. Also, it says that if such a marriage takes place, then sections 494 of IPC, 1860 shall be applied[6].

Section 494 of IPC, 1860 States “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”[7].

As a result, a combined reading of section 17 of HMA and Section 494 of IPC requires a few essential elements to be present to establish the case of bigamy, and those essential elements are laid down in the case of Nagalingam v. Shivagami[8]

• The accused must enter into the first marriage.
• While the first marriage is still subsisting, the accused performs the second marriage.
• Both first and second marriage should be valid.

When does the concept of bigamy cannot be applied:

• The wife or husband from the first marriage is dead.
• The first marriage got dissolved under section 13 of the Hindu Marriage Act,1955, or any other allied provisions.
• The spouse from the first marriage is unheard of for 7 years. As per section 108 of the Indian Evidence Act, a person who is missing for 7 years will be presumed to be dead in the eyes of law.
• The first marriage was declared to be void-ab-intio by the court of competent jurisdiction under section 13 of HMA, 1955.
• When the first marriage is annulled by the virtue of Section 12 of HMA, The Prohibited Child Marriage Act 2006, Section 3 of HMA, or any other allied provisions.

How Penance of Bigamy Being Bypass in India in Past Years

Earlier Hindu Men convert themselves to the Islamic religion to solemnize the second marriage without dissolution of 1^st marriage. Earlier many Hindu spouses have converted to Islam to marry again even though the first wife or husband is alive.

Polygamy is allowed in Muslim personal law. Since polygamy is allowed, most people took advantage of it and they vision this as a convenient route to bypass the penance of bigamy.

More than three decades ago, the renounced film actor Dharmendra and Hema Malini got married secretly. Then, the one women activist protested against their “illegal marriage” and claimed that Dharmendra was already married and his first wife is alive and he had teenage children also. Then in order to give legitimacy to his union with Hema Malini, he converted to the Islamic religion from the Hindu[9].

Another example of bypassing bigamy laws by converting to Islam is the Former deputy chief Minister of Haryana Chander Mohan. Chander Mohan was married to Seema Bishnoi. And during the lifetime of Seema Bishnoi (first wife), he fell in love with another girl Anuradha Bali. Both Chander Mohan and Anuradha Bali knew that the Hindu Marriage Act,1955 does not allow married men to have a second wife. So, Chander Mohan converted to the Islamic religion and change his name from Chander Mohan to Chand Mohammed to marry his new love Bali[10].

In Sarla Mudgal v. Union of India[11] case the judgment was laid the principal against the practice of solemnization of a second marriage by Hindu men and women by converting to Islam without dissolving the first marriage. The court, in this case, held that the marriage which was performed under the Hindu Marriage Act 1955, can only be dissolved under the provision of this act. It means the first marriage of a spouse would still be valid under Hindu Marriage. And the second marriage solemnized after his/her conversion to another religion would be considered to be violative of the Hindu Marriage Act provision and deemed to be illegal u/s 454 of IPC.

In Lily Thomas v. Union of India[12] it was held that the second marriage of an apostate husband would be violative of natural justice. It was said that even if a Hindu husband has a right to espouse his religion but he doesn’t have any right under the act to marry again without dissolving the first marriage.

And therefore, the second marriage would be violative of natural justice. In this case, Hon’ble RP Sethi and Hon’ble Saghir Ahmed held that “an apostasy doesn’t dissolve the marriage which was performed between two Hindus under Hindu Marriage Act,1955 and the status of the second wife would be like that of odalisque and children which were born of that wedlock will be considered as an illegitimate child”.

However, apostasy can be ground for dissolution of marriage u/s 13 of Hindu Marriage Act 1955 but it cannot terminate matrimonial bond or the civil obligation. This put a halt to the peril of Bigamy by Conversion to Islam.

Live-in-relationship

Live-in-relationship is a relationship where two people live together as a couple under the same roof. They conduct themselves as a married couple for all practical purposes. Such kind arrangement is ordinarily called cohabitation. According to Collins English Dictionary, Cohabitation means “ in the state or condition of living together in the conjugal relationship without being married”[13].

And the woman and man who are cohabiting are known as live-in partners. The rationale behind people going for live-in relations is to check the compatibility between couples before getting married. This live-in relationship practice somewhere protects the couple/ partner from the mayhem of the family drama and lengthy and complex court procedures in the event that the couple decides to divorce.

Whatever the reason being, it is visioned that in a customary society like ours where marriage is a ‘sacrament, an increasing number of people prefer to live- in relationship even as a long-term plan to marriage.

Legal Status of Live-In Relationship in India

In India, there is no specific law governing live-in relationships. There is no legislation defining the rights and obligations of parties in a live-in relationship as well as the statute of children born out of such couples. There is no specific definition of a live-in relationship in any of the statute books, so the legal status of such a relationship is also unknown. However, through various judgments, the court has clarified the concept of a live-in relationship.

Though the law is still murky about the legal status of such a relationship, a few rights have been granted by amending and interpreting the existing legislation to prevent the misuse of such type of relationship.

Few of the legislation are discussed below:

1. The Protection of women from Domestic Violence Act,2005

For the very first-time legislature recognized live-in relationships in the protection of women from the Domestic violence Act 2005, by providing rights and protection to a female who is not legally married but is living with an individual in a relationship that is in the concept of marriage additionally similar to that of a wife. Though the act doesn’t define the live-in relationship, it is left to the courts for judicial interpretation.

The court interpreted the Phrase ” relationship in the nature of marriage”[14] in the light of section 2(f) of the Domestic Violence Act, 2005. The provision of protection of women from domestic violence act is now extended to individuals who are in a live-in relationship. Courts presume that the live-in relationship falls within the scope of the expression because the word nature of marriage and live-in relationship shares the same line and meaning. This gives women some basic rights to protect themselves from fraudulent marriage and bigamy relationships.

2. Criminal Procedure code, 1873

Section 125 of CrPc was enacted to prevent vagrancy and destitution for wife /elderly parents/ children and it has now been extended by judicial interpretation to couples in a live-in relationship[15].

When the Malimathe committee submitted its report in 2003, it included several recommendations under the category of “offenses against women”[16]. One of the recommendations was to change the definition of ‘wife’ in section 125 of CrPc. As a result of this change, a revision was made and the term wife now includes women who were previously in a live-in relationship and now her accomplice has abandoned her at his will as a woman in a relationship can now obtain the status of a wife.

Essentially, it states that if a woman has been in a live-in relationship for a reasonable period, then she has the same legal rights as a spouse and can claim maintenance under section 125 of CrPc. When partners lived together as husband and wife a presumption in favor of wedlock arises[17].

 The perspective of Judiciary on Live-In Relationship

“With changing social norms of the legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today”

– Hon’ble Justice A.K Ganguly in Revanasiddappa V. Mallikarjun

In case of Dinohamy v. W.L. Blahamy[18], it was held that “where a man and a woman are proved to live together as a man and wife, the law will presume, unless the contrary is proved that they were living together as a result of a valid marriage, and not in the state of concubinage”.

In Mohabhat Ali v. Mohammad Ibrahim Khan[19], the privy council reiterated that “the law presumes in favor of marriage and against concubinage when a man and woman have cohabited continuously for a number of years”.

In Badri Prasad v. Dy. Director of Consolidation[20] case, the court held that “A Strong presumption arises in favor of wedlock where the partners have lived together for a long spell as husband and wife”.

Indra Sarma v. V.K.V. Sarma[21] the case established detailed guidelines of what constitutes a Live-in relationship Akin to marriage under the law

Section 2(f) of the Domestic Violence Act states that;

• “The relationship should have lasted for a reasonable period
• It includes sharing the residence. It means they are living in the same house.
• It entails the pooling of resources and sharing the ownership of intangible and tangible assets.
• The woman and man should have a sexual relationship but they also have an intimate relationship.
• They have given birth to and raised a child or children”.

The burden to prove the solemnization of second marriage

According to Hindu Marriage Act, ” a Hindu marriage may be solemnized as per customary rites and ceremonies of either party thereto”[22].

As a result, in order for the second marriage to be valid, it has to fulfill the requirements of section 7 of HMA.

The hon’ble supreme court held in the case of Bhaurao Shankar Lokhande Vs. State of Maharashtra[23] that “prima facie, the expression whoever…. marries must mean ‘whoever …marries – validly’ or whoever ….. marries and whose marriage is valid”. If the marriage is not valid under the law applicable to the parties, there will be no questions that are void because it occurred during the life of the person’s marrying’s husband or wife. If the marriage is not valid, it is not a marriage in the eyes of law.

The Nexus between Live-In Relationship & Bigamy – An Escape Route

Imagine, Ankit married Aastha and fathered a daughter with her. Later on, Ankit leaves his wife Aastha for whatever reason and married another woman Nisha in a secret ceremony without getting a divorce from Aastha, his first wife. Now, the first wife of Ankit i.e., Aastha files a complaint u/s 494 IPC to seek justice for the erroneous suffered by her but she was powerless to prove that the marriage between Ankit and Nisha is valid. And since she was unable to prove the validity of the second marriage of her husband then she left with no remedy apart from dissolving the marriage(divorce).

Does Aastha deserve justice?

There are many Aastha in India who question the Indian Laws and waiting for justice. And there are many more people like Ankit out there who got scot-free when their first wives are unable to prove the bigamous act of second marriage of their husbands even when all the societal ingredients of the second marriage are present there except the proof of ceremonies.

Live-in relationships have gained Sporadic acceptance since the advent of liberal thinking, especially in metropolitan cities. The practice more commonly adopted by the husband, of deserting one’s spouse and entering into a live-in relationship without incurring penal consequences of section 494 of IPC, unfortunately gaining traction. The escape route here is that the prosecution or the first wife is unable to prove evidence of subsequent relationship entered by a husband satisfies the requirement of a valid marriage under section 7 of HMA,1955 i.e., basically the solemnization of a second marriage by performing the necessary rites.

In case of Bahurao Shankar Lokhande[24] case the husband (accused) was acquitted solely because the first wife (complainant) could not prove the presence of Custom prevalent in their community that dispensed with the performance of two ceremonies i.e., Saptapadi and invocation before the sacred fire. And because this invocation before fire and Saptapadi is not performed then the offense of bigamy was deemed not made out.

In the case of Ram Singh v. R. Susila Bai and Anr.[25], the high court relied on the aforementioned judgment and granted the accused (husband) the benefit of the doubt on the grounds that the practice of ceremonies Saptapadi and invocation before the sacred fire was not proven by well-founded evidence.

In the case of Priya Bala Ghosh v. Suresh Chandra Ghosh[26], it was said that in the case of Adultery or Bigamy the admission can’t be treated as evidence of the second marriage having occurred, and in such cases, the prosecution must prove that the second marriage occurred as a fact after the performance of the essential ceremonies.

In this type of case, the female counterpart is entitled to protection from Domestic violence as well as maintenance under the Domestic Violence Act. However, in the Indra Sarma case, the court denied the appellant maintenance on the surface and the decision was somewhat contradictory. The court declared the appellant to mistress and absolved the man of all liabilities[27]. However, the silver lining in the Indra Sharma case was that the court considered a Live-in relationship in a manner similar to marriage.

Hypothetically in Indra Sharma Case, if the appellant had been able to prove that her Live-In Relationship with VKV Sarma was in the nature of marriage, the appellant would have been entitled to maintenance under the domestic violence act. So, would that have allowed the first wife to file a complaint under section 494 0f IPC for the wrong she had suffered?

The wife or husband, whoever enters into a relationship similar to marriage without performing the necessary ceremonies is exempted from the penalty of section 494 of IPC. Although Indian courts have upheld the rights of women in a live-in relationship[28], inheritance right of children born in such a relationship[29]and Palimony[30], this is insufficient to deter erring spouses and ensure justice, particularly for another spouse.

As a result, law against bigamy doesn’t apply to Live-in relationships because there is no valid marriage as the essential ceremonies are not performed properly, and even if the ceremonies of the second marriage were held it was usually behind closed doors and it can’t be proved. The law has provided the renegade spouse an easy escape route.

Suggestion

There is a loophole in the provisions and there is a need for amendment. If the Indian court has equated live-in relationships to the status of marriage, conferred them as that of husband and wife for all purposes including cohabitation, and vested the female partners with rights similar to those of a wife, such as maintenance, then there is no reasonable excuse why proceeding for Bigamy can’t be brought against the defaulting spouse. The legislator should make a separate act for live-in relationships and try to distinguish between marriage and Live-in Relationship

Conclusion

The provisions related to bigamy propagate injustice over the years, especially nowadays when a live-in relationship is getting acknowledged by society and law, and in some way, it is allowing the errant spouse to escape the clutches of law.

The major escape here is that the first spouse is unable to prove that the subsequent relationship entered by her husband fulfills the main requirement to be considered a valid marriage under section 7 of the Hindu Marriage Act, 1955 which is the solemnization of a second marriage by performing requisite customary rites and ceremonies.

So, if the husband is in a live-in relationship with an unmarried woman without performing Solemnization or the spouse is unable to prove the second marriage is valid then the law paves the path for the offender to escape justice. The law should protect the interest of the live-in partner on the left-hand side and those of the betrayed spouse on the right-hand side, the law must be balanced.

This article has been contributed by Manisha, student at Bennett University, Greater Noida.

End Notes

[1] Marriage, Black’s Law Dictionary Online (2^nd ed.)

[2] Bigamy, Black’s Law Dictionary, (10^th ed.2014)

[3] S.5 (1), Hindu Marriage Act, 1955

[4] S.11, Hindu Marriage Act, 1955

[5] S.7, Hindu Marriage Act, 1955

[6] S.17, Hindu Marriage Act, 1955

[7] S. 494, Indian Penal Code, 1860

[8] Nagalingam V. Shivagami, AIR (1966) SC 614

[9] Insiya Amir, Convert To Islam Bypass, Times Of India, (Jul. 21, 2009, 04:46 PM), available at: https://timesofindia.indiatimes.com/convert-to-islam-bypass-bigamy-laws/articleshow/4681888.cms (last visited June 10, 2013)

[10] Ibid

[11] Sarla Mudgal V. Union of India, AIR 1995 SC 1531.

[12] Lily Thomas V. Union of India, (2000) 6 SCC 224.

[13] Cohabitation, Collins English Dictionary, available at:

https://www.collinsdictionary.com/dictionary/english/cohabitation, (last visited June 05,2022).

[14] S.2(f), The Domestic Violence Act, 2005

[15] Ajay Bhardwaj V. Jyotsna, 2016 SCC P&H 9707.

[16] Justice V. Malimath Committee Report, pp.181-194, available at: https://mha.gov.in/sites/default/files/criminal_justice_system_2.pdf, (last visited June 10, 2022)

[17]  Chanmuniya V. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141

[18]  Dinohamy V. W.L. Blahamy, AIR 1927 PC 185

[19]  Mohabhat Ali V. Mohammad Ibrahim Khan, AIR 1929 PC 135.

[20] Badri Prasad v. Dy. Director of Consolidation, (1978) 3 SCC 527

[21] Indra Sarma v. VKV Sarma, (2013) 15 SCC 755

[22] S.7(1), Hindu Marriage Act,1955

[23] Bhaurao Shankar Lokhande V. State of Maharashtra, AIR 1965 SC 1564

[24] Bhaurao Shankar Lokhande V. State of Maharashtra, AIR 1965 SC 1564

[25] Ram Singh V. R. Susila Bai and Anr., AIR 1970 MYS 201

[26] Priya Bala Ghosh V. Suresh Chandra Ghosh, 1971 AIR 1153

[27] Id. at 25

[28] K. Vimal V. K. Veeraswamy, 1991 SCC (2) 375

[29] Jinia Keotin and Ors V. Kumar Sitaram Manjhi and Ors., (2003) 1 SCC 730

[30] D. Velusamy V. D. Patchaiammal, (2010) 10 SCC 469