The SC criticises ‘undue’ sympathy shown by lower courts in bigamy cases
The Law Commission of India recognised that the practice of religious conversion solely for the purpose of marrying for a second time was a serious concern.
On July 15, a division bench of the Supreme Court pronounced an interesting judgment, coming down heavily on a couple for committing bigamy and sentencing a woman and her second husband to six months in jail each. While enhancing the punishment imposed by the Madras High Court, the apex court went on to chastise the High Court’s sentence of ‘imprisonment till the rising of the court’ by referring to it as a “flea-bite sentence” and stressing the serious nature of the offence of bigamy during the appeal.
Bigamy, as the name suggests, is the offence of marrying a second time when one or both parties have a subsisting, legally valid marriage. Under the erstwhile Indian Penal Code, 1860 (IPC), bigamy was criminalised under offences relating to marriage. Section 494 of the IPC penalised marrying again during the lifetime of one’s husband or wife with imprisonment of up to a maximum of seven years and a fine.
Unsurprisingly, the provision has been retained under section 82(1) of the recently enacted Bharatiya Nyaya Sanhita (BNS) that replaced the IPC with effect from July 1. While the offence is non-cognizable and bailable, it is compoundable only by the husband or wife of the person so marrying and with the permission of the court.
In the landmark judgement of Smt. Sarla Mudgal v. Union of India (1994), the Supreme Court examined whether a Hindu husband, by embracing Islam, could solemnise a second marriage and whether such a marriage without the first marriage being dissolved would be valid. Holding that conversion to another religion by one or both spouses (who were Hindu) did not dissolve the marriage, the apex court emphasised that religious conversion solely for the purpose of a second marriage was invalid and such a person would be guilty of committing bigamy. The court’s stand on bigamy was cemented further in Lily Thomas Etc. v. Union of India & Ors. (2000) where the court reaffirmed its ruling given in the Sarla Mudgal judgement.
The Law Commission of India in its 227th report recognised that the practice of religious conversion solely for the purpose of marrying for a second time was a serious concern. The Law Commission’s report went on to recommend that a new provision be inserted under the Hindu Marriage Act 1955 (HMA), to the effect that a married person whose marriage is governed by the HMA cannot marry again even after changing their religion unless the first marriage is dissolved or declared null and void as per the law.
Further, the new provision ought to clearly state that if such a marriage is contracted it will be null and void and shall attract penal provisions under the IPC (now BNS). The report goes on to recommend similar changes under the Special Marriage Act, 1954, and the respective legislations governing Christian and Parsi marriages. The Law Commission further recommended that the offence be made cognizable in nature.
The Indian legal system, for regulating personal matters, is a unique one. Marriage and divorce fall under the purview of personal laws of the religion of the parties involved, and thus bigamy is one such offence which finds itself at the intersection of family law and criminal law. Personal laws have been a sensitive matter in socio-political terms. Over the last decade, calls for a uniform civil code to govern matters related to marriage, divorce, adoption, inheritance, and succession across all religions have increasingly grown, leading to much public debate.
In the present case, the Supreme Court has underscored that the punishment awarded must be commensurate with the gravity of the offence. Therefore, even though no minimum sentence has been prescribed under the law for bigamy, the apex court observed that courts must be mindful that the sentence is proportional to the serious nature of the offence.
To this effect, the Supreme Court relied on Gopal Lal v. State of Rajasthan (1979), where it was held that where the offence of bigamy is proved, the court could not take a lenient view. The court has expressed its disapproval against the tendency of subordinate courts to adopt an excessively soft stance on sentencing in such matters; highlighting that “undue sympathy in such cases will lead to miscarriage of justice and undermine the confidence of the public in the efficacy of the criminal justice system”.
Avanti Deshpande is a lawyer and researcher. Her interests include human rights law, criminal law, and gender justice. The views expressed are personal