Marrying Again During Lifetime of Husband or Wife - Section 494
Marriage, as a tradition, is complicated enough, especially in our country where this age-old tradition signifies more than just the union of two individuals in love, rather it dwells on the concept of forming and accepting a new family that starts with this holy union. Hence, understanding how significant such an institution is for fellow countrymen, it is of little doubt that the state will have laws implemented that focus on preserving the concept and values of marriage and take initiative to filter out the malpractices that tend to occur related to the sacrament. Consult the best lawyer online The topic of today’s article is such a section taken from the Indian Penal Code which is section 494. This section exclusively states Whoever, having a living husband or wife, marries in any case, such marriage is void by reason of its taking place during the lifetime of such husband or wife, shall be imprisoned for either a term which may extend to seven years, and shall also be liable to fine. This section of the IPC exists to preserve the citizens against bigamy, which by definition means marrying again while one is already married and their marriage is not legally dissolved. According to Section 5 of the Hindu Marriage Act,1995, the necessary criteria at the time of marriage is that both partners should not have a spouse who is still alive. However, there is an exception provided u/s 494 of the IPC that states, either of the partners can contract a second marriage if the absence of his/her partner has exceeded the period of seven years. What is IPC 494 ? Section 494 falls under the umbrella of ‘Chapter XX’ of the Indian Penal Code that deals with ‘offences relating to marriage’. IPC Section 494 states that whoever, once already married and in a valid marriage contract presently with a living person, enters another marriage contract with another person, will be liable under this section of the IPC. When a person is already in a valid marriage, then contracts another marriage with another person, during the lifetime of the first spouse, it is called bigamy and the person committing this is called bigamist. Section 494 is the section under which such offenders are tried. It is a non-cognizant and bailable offence. Although, offences under bigamy are also compoundable only if there is the consent of the wife and if the competent court permits. Ingredients of section 494 are as follows : The first marriage should’ve occurred according to the law, that is, it must be legal in nature. The second marriage should have taken place. The first marriage should still be existing. The spouse must be alive. Both marriages should be valid. Is IPC 494 bailable? Yes, IPC 494 is bailable and the offender can get bail from the police station by executing the prescribed bail bond before the complaint has been forwarded to the magistrate. Is IPC 494 a cognizable offence or a non-cognizable offence? IPC Section 494 falls under the category of non-cognizable offences. The cases against which police can neither register FIR nor investigate or make arrests without proper directions from courts or warrants are called non-cognizable offences. Such offences are generally mild in nature compared to cognizable offences. How to file for or defend against your case related to IPC 494 offence? To understand how to file/defend against a particular law, the first criteria is to understand the inner workings and the practical implementation of the law but most importantly it is essential to know all that can be known related to the topic.
Who can file bigamy charges?
Only the person who has been cheated by their spouse in the contract of second marriage has the right to file a case under this Section.
The partner from the first marriage does not have the right to file a complaint under this section.
In the case of the woman, she can file the case herself or any person related to her by blood can do so. But for the man, only he himself can register the complaint. (There is an exception for the men who are employed in the armed services who might not be present to file the case personally due to his duty.)
Rights of the second wife :
There is no provisional right of a second wife in the case of a second marriage. She cannot claim the property right of her husband.
If the second marriage has taken place according to the Hindu Marriage Act but is invalid according to the provisions of this act, then the second wife has no right to claim.
However, there is an exception, this section does not extend to any person whose marriage with such husband or wife has been declared invalid by Court, nor to any person who contracts a marriage during the lifetime of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, has been continually absent from such person for the space of seven years, and haven’t been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before the marriage takes place, disclose the real facts to the person with whom such marriage is contracted.
Rights of children from the second marriage :
If the second marriage is declared valid, the child born would have equal rights compared to the child from the first marriage.
However, if the second marriage is not valid according to the provisions of the Hindu Marriage Act, then also the child born out of the second marriage would inherit the same rights as the child from the first marriage would.
Hindu marriage act, section 16, provides a provision where the second child can inherit the rights.
There is an exception present specifically in GOA, that states if the wife of the previous marriage is not able to give birth by the age of 25 or doesn’t give birth to a male child by 30, bigamy is permitted.
These are valuable information related to section 494 IPC which may come in handy in order to file for or defend against this law.
For further in-depth assistance :
Consult an expert criminal lawyer with the help of Lawtendo to file or defend your case for or against IPC Section 498.
Is IPC 494 a bailable or non-bailable offence?
IPC Section 494 falls under ‘bailable offence’. In a bailable offence, bail is granted as a claim of right. It may be provided by the police officer that has custody of the offender or by the court. In order to grant bail, a ‘bail-bond needs to be executed, with or without the presence of sureties. The bail-bond comes with certain clauses related to the offence such as the offender shall be present in front of officials whenever required, etc.
(Please note, the court is within its jurisdiction to refuse bail, even if the offence committed is bailable, if the accused fails to comply with the terms and conditions of the bail-bond.)
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Notable judgment under IPC section 494 :
SRI. T. MANJANNA v. STATE OF KARNATAKA, 2019
In this given case, the petitioner aimed to quash the FIR registered against him under Section 494 IPC.
Respondent No. 2 is the married wife of the petitioner by law. Matrimonial proceedings were then pending between the two for dissolution of their marriage under Section 13(1)(a) of the Hindu Marriage Act. During the pendency of this petition, respondent No. 2 filed a report alleging that during the existence of her marriage, the petitioner has contracted a second marriage. In the complaint, she stated that the petitioner himself forwarded the photographs of another lady which reveals that there was a second marriage.
On the basis of the above allegations, no proceedings were instituted under Section 494 of IPC. First and foremost there is no evidence whatsoever in the complaint that the petitioner herein has contracted a second marriage. Forwarding the photographs of a lady is no proof of marriage in order to form an offence under Section 494 of IPC. In order to constitute an offence under Section 494 IPC, the complaint must disclose that during the existence of the marriage, the husband or wife has entered into another marriage. There were no such materials in proof constituting an offence under Section 494 IPC. Hence, prosecution of the petitioner on the basis of the above allegations was deemed to be illegal and is an abuse of process of the Court. The fact that matrimonial proceedings are pending before the Court for dissolution of marriage which are initiated at the instance of the petitioner suggests that the complaint had been filed aiming to create a ground for the petitioner to challenge the said proceedings before the matrimonial Court. Nevertheless, respondents have failed to make out a case for prosecution of the petitioner for the offences punishable under Section 494 of IPC the impugned proceedings are liable to be quashed.
Accordingly, the petition was allowed. The proceedings arising out of Crime No. 162/2016 for the offences punishable under Section 494 of IPC pending on the file of Principal Civil Judge (Junior Division) and JMFC, Jagalur, Davanagere District are quashed. Sd/- JUDGE. LRS.
This beautiful article on IPC Section 494 was written by Mr. Aritra Mishra.| Offence | Punishment | Cognizance | Bail | Triable By |
|---|---|---|---|---|
| Marrying again during the lifetime of husband/wife | Imprisonment upto 7 years along with a fine. | Non-Cognizable | Bailable | Magistrate of the first class. |
| Offence | Marrying again during the lifetime of husband/wife |
|---|---|
| Punishment | Imprisonment upto 7 years along with a fine. |
| Cognizance | Non-Cognizable |
| Bail | Bailable |
| Triable By | Magistrate of the first class. |
