Section 494 IPC which criminalises bigamy challenged before Kerala High Court

The Kerala High Court recently issued notice to the Kerala government on a plea challenging the constitutionality of Section 494 of the Indian Penal Code (IPC) which penalises the act of bigamy - the offence of marrying someone while already married to another person..Justice K Haripal issued notice to the respondents on the plea filed by the father of a woman accused of marrying someone when she had only filed for divorce from the respondent husband but the marriage was still subsisted in the eyes of law. Due to the same, the petitioner, his daughter and other relatives have been facing criminal prosecution for commission of offences under Section 494 read with Section 34 of IPC. This prompted the petitioner to approach the High Court, through advocate PG Jayashankar, assailing the constitutional validity of Section 494 and to the limit the scope of Section 17 of the Hindu Marriage Act which lays down that any Hindu commits bigamy shall be covered by Section 494 IPC..The petitioner's case rests on the following main grounds:.1. IPC is intended as a secular legislation which is applicable, subject to Sections 3, 4 and 5 to every person, irrespective of the cast, creed, sex, religion, race and even nationality. To put it differently, an act cannot be an offence for some section of the people and not others.However, according to the petitioner, Section 494 essentially classifies people based on their personal law and selectively criminalises the act of second marriage on the basis of the applicable personal law."Section 494 of IPC is the only provision of law which criminalises an act purely on the basis of applicable personal law and discriminates between people belonging to different religion," the plea said.As such , it is contended to be violative of Article 14 of the Constitution..2. Section 494, according to the petitioner, is the sole offence which lacks the element of mens rea or criminal intention. This makes it fall within the category of strict liability offences. "A person being tried and punished for an offence, without a culpable mental state being required, is unreasonable, illegal and arbitrary and is violative of constitutional mandate of Articles 14 and 21," the plea said.3. Section 494, to the extent it recognises the validity of a subsequent marriage based on the applicable personal laws as an exception to the prosecution of a crime, and which is not available to a person belonging to Hindu, Christian or other communities, other than the Muslim community is arbitrary. As such, the applicability of the Section goes against the basic tenets of the constitutional mandate of equality.Moreover, the petitioner argued that the very fact that the crime is not a universal one itself suggest that the act of bigamy is something which should not be criminalised..To summarise, it was contended that the absence of mens rea and the fact that the act of bigamy is not crime for a section of the society points out that there is no inherent criminality underlying the act of bigamy. "At best, bigamy should be treated as a ground for divorce and not a criminal offence. Bigamy is a private affair related to the matrimonial realm, therefore criminalising it does not serve the purpose of upholding the dignity of the marriage life," the plea said. .The petitioner also drew attention of the Court to the fact that cohabitation of a married person with another is not a crime. But, if such cohabitation occurs after a formal arrangement such as marriage, then the act is criminalised. In that view of the matter, it was submitted that permitting the act of bigamy to continue as an offence is not only anachronistic, but also arbitrary and illegal..[Read Interim Order]