The Rajasthan High Court recently observed that the offence of bigamy would not arise if a married person lives with another partner without solemnising any second marriage with such a partner.
Justice Kuldeep Mathur made the observation while dealing with a case where a married man was accused of bigamy by his wife as he was living with another woman.
The judge, however, pointed out that the offence punishable under Section 494 (offence of marrying again during lifetime of husband or wife/ bigamy) of the Indian Penal Code (IPC) would not arise unless a second marriage has been performed while a first marriage is still in force.
Merely because a married person is living together with another person, the offence of bigamy would not arise unless the married person enters into a second marriage, the Court said.
"It is settled law that the offence punishable under Section 494 IPC would be made out against any person if he/she solemnizes a marriage during the lifetime of either the husband or wife; as the case may be. The mere fact of a man and a woman living together as husband and wife would not be considered as an offence punishable under Section 494 IPC if they have not performed of a valid marriage in accordance with the existing law," the May 7 order states.
In the present case, a man (petitioner) was charged with bigamy, cruelty and other offences under the IPC on a complaint by his wife.
He then filed a petition before the High Court challenging the criminal proceedings pending before a trial court against him.
The counsel for the petitioner contended that there was no allegation that he (petitioner) had solemnized a second marriage with another woman by performing essential religious ceremonies.
Even the wife (complainant) had stated that her husband was not married to another woman.
The counsel further argued that the wife had lodged the complaint of bigamy against the husband over twenty years after the alleged crime, solely to harass and humiliate him.
The counsel for the wife opposed the husband's claims, arguing that even if it were assumed that her husband was keeping another woman according to the customs of Nata marriage (a practice in which two persons can enter into a relationship similar to marriage without any legal and religious/ social obligation by getting a divorce from existing marriage or otherwise) he would still be guilty of committing bigamy.
The Court, however, noted that there was no evidence to establish that the petitioner had entered into a second marriage with another woman.
"There is nothing on record to establish as to whether the same (Nata marriage) was done by following the marriage ceremonies required by the personal law governing the parties or by following the essential ceremonies for a Nata marriage," the Court added.
As such, the offence of bigamy was not established, the Court opined. The Court, therefore, quashed and set aside criminal proceedings pending before the trial court against the accused man.
Advocate Navneet Poonia appeared for the petitioner. Public Prosecutor AR Choudhary appeared for the State, while advocate Aasu Devi appeared for the complainant.
On a related note, the Punjab and Haryana High Court has expressed a conflicting view, wherein it said that a person living “a lustful and adulterous” life without obtaining a divorce from an earlier spouse may be held liable for the offence of bigamy.
More recently, the Delhi High Court opined that the absence of a law making adultery an offence does not provide people blanket immunity from marrying other persons during the subsistence of one's first marriage.
[Read Order]