RESEARCH PROJECT

on

Analysis of the Concept of Mock Marriage and Bigamy

Submitted to

MAHARASHTRA NATIONAL LAW UNIVERSITY,

AURANGABAD

Submitted by
AUVESH KHAN

B.B.A.LL.B. (Hons.)

Semester3RD Roll No.

2022/BBALLB/83

Paper: Criminal Law

Under the guidance of

Ms. Amruta Chavan

Teaching Assistant of
Law

Maharashtra National Law University, Aurangabad

September, 2023

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 DECLARATION

This declaration is made at Bangalore that, this project is prepared and drafted by me, Auvesh
Khan.

It contains the project work that was assigned to me during my 3rd Semester period, and
successfully accomplished from my side. This project is a sincere attempt at compilation of the
aforementioned work.

This has not been submitted, either in whole or in part, to any other Law University or affiliated
Institute under which any University is recognized by the Bar Council of India, for the award of
any other law degree or diploma, within the territory of India.

AUVESH KHAN

(22Bballb83@mnlua.ac.in)

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 INDEX

Sr. No Chapter Pg. No

1 Cover Page 1

2 Declaration 2

3 Index 3

4 Abstract 4

5 Introduction 5

6 Mock Marriage 7

7 Bigamy 12

8 Conclusion 18

9 Bibliography 19

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 ABSTRACT

What if your marital partner is a fraud? What action can be taken against him/her? What if you
believe that you are married to your partner but actually you are not?
These are some questions that may worry about married couples. The fraud or deceit by
a partner in a marriage is considered as a criminal offense under the Indian Penal
Code.
Offenses relating to marriage are dealt with under Chapter XX of the IPC. It includes offenses of
Mock or Invalid marriage (Section 493 and 496), Bigamy (Sections 494 and 495), and Criminal
elopement (Section 498). A mock or invalid marriage is deceitful or fraudulent marriage. Section
493 deals with the offense of deceitful marriage and Section 496 deals with the offense of
fraudulent marriage.
Bigamy is the act of marrying one person when the individual is already legally married to
another person. Section 494 deals with the offence of bigamy and section 495 deals with
the offence of bigamy with concealment of the previous marriage.

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 INTRODUCTION

Significance of the study:

Even today, many people do not know that acts like bigamy and mock marriages are a
crime. Some people get trapped in these offences because of being ill-informed as to
the remedies available for them.

Therefore, through this project, I will try to explain the offences of bigamy and mock
marriage and how people can protect themselves from falling into the traps of people
trying to commit these offences. This project will also talk about the steps to be taken
if a person finds out that his/her spouse is involved any of these offences.

Objectives of the study:

1. Understand the what bigamy and mock marriages are.

2. Understand the remedies available in India.

Legal Relevance:

Mock marriages and bigamy are offences under the Indian Penal Code. The
punishment for these offences is very serious; seven or ten years of imprisonment
with fine. There have been several major cases in both, High Courts and the Supreme
Court, in which several factors of these offenceshave been explained.

Research Questions:

1. What is mock marriage?

2. What is bigamy?
3. What is the difference between mock marriage and
bigamy?

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 Research Methodology:

 Approach to Research: In this project doctrinal research was involved. Doctrinal

Research is research in which secondary sources are used and materials are collected
from libraries, journals, articles and websites.
 Types of Research: Explanatory type of research was used in this project, because
the project
topic was not relatively new and unheard of and also because various concepts were
needed tobe explained.
 Sources of Data collection: Secondary source of data collection was used which
involves
collection of data from books, articles, websites, etc. No surveys or case studies were
conducted.

Scope:

The scope of this project extends to the definition of mock marriage and bigamy.
This project willalso include various judgements given by the Supreme Court of
India.

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 MOCK MARRIAGE

Types of mock marriage:

1. Deceitful marriage
2. Fraudulent marriage

Deceitful marriage:
Definition-
The offense of deceit in marriage is defined in Section 493 of the Indian Penal Code.
If a man deceits a woman to believe that she is lawfully married to him, then the man
is said to have committed the offense according to Section 493 of the IPC

Deceit was defined in Ram Chandra Bhagat v. the State of Jharkhand, (2013) 1
SCC 562 as “a false statement of fact made by a person knowingly or recklessly with
the intent that it shall be acted upon it and thereby suffers an injury.”

This offense can also be punished under Section 375 (4) of the IPC (rape).

Essential Ingredients-
1. The offense is by a man;
2. Such a man deceits a woman to believe that she is lawfully married to that man;
3. Such women must have cohabited or had sexual intercourse with such men.

Deceit Intention-
Deceit intention is an essential element to be proved on the part of the husband. In
KAN Subrahmanyam v. J Ramalakshmi, (1971) Mad LJ (Cr) 604 1, it was observed
that “such deceitful intention must exist on the part of the husband at the time of
marriage.” This means if the husband is having no deceitful intention at the time of
marriage and he believes that he is lawfully marryingthe woman then he would not be
punished

False Belief-

The deception caused must lead the woman to the false belief of being lawfully
1

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married to such a man. Only deceit intentions on the part of the husband are not
sufficient.

It was observed in Moideen v Kutty Haji v. Kunhikoya, AIR 1987 Ker 184 that
there must also be “inducement by him to the woman to cohabit or have sexual
intercourse with him.”

If the husband has not put the wife in false belief, then he is not liable to be
convicted of this offense. If the woman knows that she is not legally married to a
man she is cohabitating with and then also continues to cohabit with him, then she
is not in a false belief. In such a case, she is not going to get the benefit of this
Section.

In Amruta Gadtia v Trilochan Pradhan, (1993) Cr LJ 1022 (Ori), the Court

observed that “the woman was aware of the fact that she was not lawfully married to
the man she was cohabitating with and then also she allowed the man to had sexual
intercourse with her”. The Court held the man not liable under Section 493.

Scope-

The scope of Section 493 is that it punishes a man not only for performing a
marriage which turns out to be invalid but it punishes him for inducing a woman in
to cohabitation or having sexual intercourse with her making her believe that such
marriage was valid.

The scope is limited to the extent of a man acquiring a woman’s body deceitfully by
making her believe that such acquiring was taken place by jus mariti (the right of the
husband over his wife by lawful marriage).

In Raghunath Padhy v. State, AIR 1957 Ori 198, it was observed by the court that
“inducement to cohabitate or have sexual intercourse is necessarily done by a man to
be liable for the offence under Section 463. Only the fact of deception by a man to
make the woman have a false belief of being lawfully married to the man is not
sufficient.”

Punishment-
Imprisonment for a term of maximum ten years, in addition to fine.

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 Case Laws-
1. Ram Chandra Bhagat v State of Jharkhand
A man promised a woman to marry and had an agreement to marry her eventually.
On the belief of such promise, the woman cohabitated with the man for nine years.
The court was considering the question of whether the promise was an inducement to
believe in marriage or not. The court held that it was not an inducement to the belief
of marriage and man was not held liable.
2. Ravinder Kaur v Anil Kumar
A man obtained the ex-parte divorce decree and did not inform his wife about it. The
matrimonial relationship between them ended due to that decree and the wife was not
known to the fact. She continued to cohabitate with him on the belief that she was
still married to him. The wife came to know the truth when his husband married
another woman. The court held that it cannot be said that the husband deceived his
wife to believe that she is lawfully married to him and held the man not liable under
Section 493.
3. Moideen Kutty Haji v Kunhikoya
The court cleared in this case that “a man is not liable only for cohabiting or having
sexual intercourse with a woman not lawfully married to him. For the liability under
this Section, it must be proved that such man has induced the woman to cohabitate or
have sexual intercourse with himin the belief that she is lawfully married to him.”

Fraudulent marriage
Definition-
Section 496 defines the offence of fraud marriage. A person who, with fraud or
dishonest intention of knowing to the nature of marriage ceremony as invalid, goes
through such a ceremony is liable under Section 496.

Essential ingredients-
1. A person must have a fraud or dishonest intention;
2. The person must go through a marriage ceremony;
3. The person must have knowledge that such a ceremony is not a valid marriage.

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 Scope-
The section is limited to punishing a person who, with fraud intention, does a
ceremony that does not constitute a valid marriage and that makes the other party
believe that a valid marriage has taken place. It does not require cohabitation or
sexual intercourse as required under Section 493.

In Queen v. Kudum, 1864 WR (Cr) 13, the court observed that mens rea is the
essence of Section
496. “It must be known by the offender that the marriage in which he/she is entering
is an invalid marriage. If in any case, the accused is not knowing the fact that the
marriage is not valid then he is not liable to be punished.”

Punishment-
Imprisonment for a term of maximum seven years, in addition to a fine.

Case Laws-
1. Shiekh Altmuddin v Emperor
It was observed by the court that “where the marriage ceremony which is gone
through is invalid due to existence of previous marriage, Section 496 shall not be
applicable. It is subjected as an offence of bigamy which is dealt with under Section
494 of the IPC.”
2. Kailash Singh v State of Rajasthan
The accused did a second marriage during pendency of appeal against a decree of
divorce. However, he did not conceal the fact from the girl. The court held the
accused not liable under Section 496 because his act was not dishonest.

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 Distinction between Section 493 and 496-
Section 493 Section 496
 An offence under Section 493  Cohabitation or having sexual
requires deception by a man, as a intercourse is not required in the
result of which cohabitation or offence under Section 496. It
sexual intercourse with simply
the woman is done by him. requires a fraud marriage
ceremony.
 An offence under Section 493  An offence under Section 496 may be
may be specifically committed
committed by a man or a woman
by man only.
both.

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 BIGAMY

Bigamy is the act of marrying one person when the individual is already legally
married. For example:

If A is legally married to B and proceeds to marry C during the subsistence of his

marriage with Bthen A will be liable for bigamy.

However, if the first marriage is declared void due to any reason, then it is not
bigamy. When a couple is undergoing the procedure of divorce, neither of them can
marry until and unless the divorce is final in the eyes of the law.

In the present day, bigamy is penalized in many countries as their ideology is

favorable towards monogamy. However, there are certain countries where bigamy is
allowed.

Bigamy in India and its history-

Bigamy has existed in India since ancient times when the warrior sects and rich
merchants had multiple wives at the same time. This was done due to expansion of
territory, to seal pacts, etc.

The texts from Manusmriti, a primary source of the Hindu Marriage Act, distinctly
mention that if the wife is suffering from some disease, or cannot give birth to a
child, then the husband of such wife can marry another woman i.e., the second
marriage will be considered legally valid. The condition is that the first wife shall be
superior to the second wife and the first-born son of the first wife shall have primacy
over the other sons.

With the advent of British rule, the law was altered wherein a Hindu male who is
already married once may marry again without any justification or the consent of his
wife. As time passed, religious laws were being given priority which resulted in
bigamy being declared as an offence. The Parsi Marriage and Divorce Act (1936),
Bombay Prevention of Hindu Bigamous Marriage Act (1946) and the Madras Hindu
Bigamy (Prevention and Divorce) Act (1949) were the first among the several laws

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 which recognized and penalized the offence of bigamy.

The Hindu Marriage Act, 1955, makes monogamy the mandate for all Hindus,
Buddhists, Jains, and Sikhs. If a Hindu male commits bigamy, he shall be liable
under Section 494 of the IPC, 1860.
Similarly, as per the Special Marriage Act, 1954, any marriage that is solemnized as
per the provisions and the conditions of the said Act would be prohibited from taking
the form of bigamy.

When it comes to the personal law of Muslims i.e., the Sharia law, polygamy is
legally allowed however the practice of polyandry (woman having multiple
husbands) is strictly prohibited. The Quran governs all Muslims and the same states
that a Muslim male may marry up to four women at the same time however he must
be able to maintain and take care of them.

In Radhika Sameena v. SHO Habeeb Nagar Police Station, (1996), it was held that
a Muslim male married under the Special Marriage Act, 1956 would be guilty under
Section 494 of the IPC if he enters into another marriage as per the Muslim Law.
Since his previous marriage was done as per the Special Marriage Act and not under
Muslim Law.

Bigamy and the provisions of IPCSection 494 of the IPC, 1860:

"Any person who already has a wife or husband living, further proceeds to marry
another person
while being lawfully wedded to such wife or husband shall be punished with
imprisonment of either description for a term which may extend to seven years, and
shall also be liable to fine.” Moreover, such marriage shall be considered void in
whatsoever case.

The said provision does not extend to any individual –

1. whose prior marriage has been declared void by a court of competent jurisdiction.
2. who contracts a marriage during the lifetime of their former partner wherein such
partner at the time of such individual’s second marriage was not heard of for a period
of seven years or wherein there is no information of them being alive.

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 Under Section 108 of the Indian Evidence Act, 1872, a person who has been missing
for more than seven years is presumed to be dead and if the spouse of such individual
contracts a second marriage, it shall be understood that no husband or wife is living at
the time of the second marriageand thus, the offence of bigamy is not constituted.
The condition being that, before the second marriage takes place, the person must
inform the person they are about to marry about the facts to the best of their
knowledge regarding their previous partner.
Section 495 of the Indian Penal Code, 1860
When an individual does the act of bigamy by concealing the fact of their former
marriage, then such individual shall be liable under Section 495. Such individuals
shall be punished with imprisonment which may extend up to ten years and shall be
liable to fine or both. In addition to this, a complaint about cheating can be filed
under Section 415 of IPC in case the individual conceals the fact of first marriage.

Elements-
1. Existence of a prior lawful marriage-
The mere subsistence of a prior lawful marriage itself declares the subsequent
marriage void because it confirms the existence of a living wife or husband of such
individual.
2. Validity of subsequent marriage
The couple willing to marry must take part in all the mandatory rituals and
ceremonies as required in the personal law that governs their marriage. In case the
subsequent marriage is contracted without following or performing the required
rituals then it shall be void in itself which in turn declares that the offence of bigamy
cannot be constituted.
This element can be well understood through Satya Devi v. Khem Chand (2013),
wherein the wifefiled a case against her husband. However, since she could not
prove that her marriage was contracted in accordance with the law, the second
marriage remained valid and her marriage was declared void. Therefore, the case
was dismissed.
3. Existence of the partner from prior lawful marriage

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The wife or husband of such individual from the prior lawful marriage must be alive
during the time of the subsequent marriage to declare it void and establish a case of
bigamy

Procedure to file a complaint against bigamy-

The aggrieved person can file a case of bigamy in the police station or at the court.
The father of such female can make a complaint under Section 494 and 495 of the
IPC.

A request for declaring the subsequent marriage void can be recorded by the parties
of such subsequent marriage and not the first partner.
Conversion and bigamy – the legal paradox-
As the Hindu law strictly prohibits bigamy, the men belonging to the Hindu religion
started to convert to Islam to be able to marry again during the subsistence of their
first marriage. Since these men converted to Islam, which permitted the practice of
polygamy, they could conveniently escape the legal consequences arising from the
provisions of Hindu law which penalize bigamy.

In Sarla Mudgal v Union of India (1995), the Supreme Court dealt with whether
converting to Islam and contracting second marriage will be considered valid or not
and if not, then will such individual be held liable for bigamy as per Section 494 of
the IPC or not.

In an attempt to answer these questions, the Court 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 irrespective of
the fact that one of the individuals to the marriage has converted to another religion.
Therefore, the individual who converts to another religion and attempts to or marries
again during the subsistence of their first marriage will be held liable for bigamy.

Status of a second wife in India-

Various negative aspects come along when we think about the second wives in our
society. These may be lack of recognition of the marriage, burden of bearing the
shame and hate from people, pain of not being able to give her children a legal status
which includes the succession of property,etc.
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Maintenance to the second wife-
In a prima facie case, it might appear that the second marriage is null and void as per
the laws and thus the second wife shall not be entitled to get any maintenance but the
Supreme Court through Pyla Mutyalamma Satyavathi v. Pyla Suri Demudu & Anr
(2011) stated that even the second wife can claim maintenance from her husband. It
further held that the claim of maintenance cannot be refused on the ground of the
validity of the marriage.

Rights of children born out of second wife over father’s property-

In Revanasiddappa v. Mallikarjun (2011), it was held that children born out of
second wedlock will have the right to their father’s ancestral property. Further, the
Hindu Marriage Act under Section 16(3) does not mention any restriction on the
property right of an illegitimate child.

However, such property rights only extend to the property of the parents of such
illegitimate children.

In Vidyadhari & Ors v. Sukhrana Bai & Ors. (2008), it was held that the children
born of second wedlock are entitled to a share in the property of their father, even if
the second marriage is void. If an individual marries a second time during the
subsistence of his first marriage, the children born out of such wedlock will still be
legitimate.

Live-in relationships and bigamy-

Live-in relationships are considered taboo in Indian society. The main factors are the
lack of legal recognition, pre-marital sex and illegitimate children. But the main
question whether the anti- bigamy laws apply to live-in relationships or not. The
offence of bigamy does not extend to live- in relationships because there is no
presence of a legally valid marriage contracted between the two parties.

In Khushboo v. Kanniammal & Anr (2010) the Supreme Court held that when a man
and woman live together without marriage, it is not an offence. The Court had also
held that there was no law that prohibits or restricts live-in relationships or pre-
marital sex.
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In Tulsi v. Durghatiya & Ors (2008), it was held that children born out of live-in
relationships are not illegitimate. However, there are certain conditions such as the
parents must have cohabited for a considerable amount of time under one roof so that
the society recognizes them as husband and wife i.e., there is a presumption of
marriage between such couple.

In Rameshchandra Daga v. Rameshwari Daga (2004), the Supreme Court

recognized and upheld the maintenance rights of the women who are tied in invalid
marriages or other such informal relationships.

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 CONCLUSION

Marriage is a pure relationship. Deceit and fraud are serious offences that can make a
marriage impure. Such offences need to be stopped and punished to protect such a
pure relation. IPC deals with such offences in a good way. It is assumed that
marriage is a personal matter. So, the state needs not to interfere with it. But a
practice of fraud or deceit makes it necessary for the state to enter in the matter
otherwise it will adversely affect the institution of marriage.

Bigamy is dependent on the religion, i.e., some religions consider it an offence while
some religions permit it, like Islam. In religions where bigamy is permitted, people
should not interfere in the marriage unless there is negligence of any of the wives or
the children of any wife.

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 BIBLIOGRAPHY

 https://blog.ipleaders.in

 ttps://en.wikipedia.org

 https://legislative.gov.in

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