Allahabad Bench issues Notice to Attorney General seeking reply on plea questioning the validity of Section 494
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Bigamy is the act of marrying one more person when the individual is already legally married to another person. Although, if the marriage is dissolved or declared to be void, due to any reason, then the individual has the freedom to marry another person. Section 494 of the Indian Penal Code defines “Bigamy” exclusively. This section explains that if any person who already has a wife or husband living, with wilful conscience continues to proceed with marrying another person while still being lawfully wedded to such wife or husband shall be punished with imprisonment of either description for a term which may extend to about seven years, and shall also be liable to fine. Ultimately, such marriage shall be considered void in whatsoever case. For this section to apply, certain conditions need to be fulfilled like the existence of a prior lawful marriage, the validity of subsequent marriage, and the existence of the partner from the prior lawful marriage.
During the inception of the constitution in 1950, there was no specific law that prohibited Bigamy exclusively. However, The Hindu Marriage Act, of 1955, makes ‘monogamy’ the mandate for all Hindus, Buddhists, Jains, and Sikhs. In case a Hindu male marries another woman during the existence of his first wife, he shall be liable under Section 494 of the Indian Penal Code, 1860. Similarly, according to the Special Marriage Act, of 1954, any marriage that might be solemnized as per the provisions and the conditions of the said Act will be prohibited from taking the form of bigamy. But, when it comes to the Personal law of Muslims, that is (Shariat) Application Act, polygamy has been legally allowed, but polyandry is not allowed in any manner.
Sarla Mudgal v Union of India
In the landmark case of Sarla Mudgal v Union of India (1995), the Hon’ble Supreme Court dealt with the question of whether converting to Islam and contracting second marriage could be considered valid or not. The question was, whether such an individual is held liable for bigamy as per Section 494 of the Indian Penal Code, 1860 or not. In the quest to answer such questions, the Apex Court explicitly stated that when two individuals marry each other as per the provisions of a particular personal law then such marriage shall continue to be governed under the same personal law without paying any heed to the fact that one of the individuals in the marriage has converted to another religion. Thus, if any individual converts to another religion and attempts to or either marry again during the existence of their first marriage will be held liable for bigamy. Such individuals shall not escape the legal consequences as provided under Section 494 of the IPC.
Thus, the case of Sarla Mudgal v Union of India established that by merely converting to another religion, no person could escape the liability of committing the offense of bigamy and the conversion itself did not free such person from the tenets of their first lawful marriage.
Validity of Section 494
On February 27, 2023, an order was passed on the PIL which was filed by Pawan Kumar Das Shastri, the general secretary of the Hindu Personal Law Board, by the Division Bench of Justice Devendra Kumar Upadhyay and Justice Sabhash Vidyarthi . The order exclusively stated that since the validity of section 494 was questioned under the Shariat act 1937, along with declaring Section 494 to be Ultra Vires as per the PIL, thus the bench was issuing a notice to the Attorney general. Petitioner’s representative, Advocate Ashok Pandey stated that Section 494 discriminates on basis of religion and thus the existence of such a section is questionable.