Hearing a public interest litigation which sought a direction to register case under Section 494 of the Indian Penal Code against all citizens who commit the offence of bigamy irrespective of their personal law, the Kerala High Court said that “Section 494 (IPC) does not discriminate between an offender belonging to Hindu/Muslim/Christian male or female belonging to any cast or creed”. However, the plea of the petitioner was not accepted as Section 198 (1) of the Code of Criminal Procedure contains a specific bar regarding the subject.
Mr. Venugopal, the petitioner had submitted to the Court that there are various circumstances where culpable bigamous marriages have been resorted to harass and dupe innocent ladies in the name of personal law. He had also field a Right to Information application for obtaining information under the Right to Information Act regarding registration of marriages of Muslim male who has already one wife living. The judgment of the High Court notes, “Petitioner's case is that he has received answers from the Director of Panchayaths where it is stated that in the memorandum to be submitted for registration there is a column regarding previous marital status and the same has to be filled up by the person who is submitting the application. Every marriage is valid based on the marriage laws applicable to the parties as per Muslim personal law, a Muslim person is permitted to conduct four marriages at a time and there being no clarity in the rules with regard to registration of such marriages a clarification has been sought for from the Government.”
The petitioner had prayed to the High Court that a “direction commanding the respondents (State) to register cases under Sec.494 IPC against all citizens, who commit the offence of bigamy, irrespective of their personal law” and “Declare that the offence of Sec.494 will be attracted against all classes of citizens who conduct a bigamous marriage irrespective of their personal law.”
Counsel for the petitioner, Advocate Rajit had submitted to the Court that S 494 of Indian Penal Code does not distinguish on the basis of religion and the Court agreed with the same.
Explaining the provision, the Court observed, “Crucial words in Section 494 are "marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife." Section 494 thus provides that any husband or wife who has already married in the event of conducting a second marriage he/she shall be punished with imprisonment in the event "such marriage is void by reason of its taking place during the life of such husband or wife." The above words refers to the second marriage, on conduct of which the offence under Section 494 IPC arises. The offence shall arise when such marriage (second marriage in the event of husband or wife living) is void on account of the husband or wife living. The converse is that in the event the second marriage is not void, the offence under Section 494 shall not arise.”
Coming to the issue of Muslim personal law, the Kerala High Court relied on Kamala Kumari v. Mohan Lal, (II  DMC 279 (Allahabad), a judgment delivered by the Allahabad High Court in which the challenge to Section 494 on the ground that it is ultra vires was repelled. The Kerala High Court then further observed, “There may be cases where a Muslim male or female can be prosecuted for offence under Section 494 IPC also. In a case where a Muslim male marries a fifth wife, he can very well be prosecuted under Section 494 IPC since the 5th marriage will be void, personal law being having permitted only four wives to be taken together. Similarly a Muslim female contracting a second marriage can be proceeded with for offence under Section 494 IPC.”
The High Court also relied on Dr.Srajmani Stella Kujur v. Durga Charan Hansdah and Another (2001] 3 SCC 13) wherein “it was held by the Apex Court that the fact of second marriage being void is sin qua non for the applicability of Section 494 IPC.” The High Court also relied on Lily Thomas case wherein it was said, “before an offence under S.494 can be said to have been constituted, the second marriage should be shown to be void in a case where such a marriage would be void by reason of its taking place in the lifetime of such husband or wife. The words "husband or wife" are also important in the sense that they indicate the personal law applicable to them which would continue to be applicable to them so long as the marriage subsists and they remain "husband and wife.”
Dismissing the public interest litigation filed, the Justice Ashok Bhushan observed, “Section 494 does not discriminate between an offender belonging to Hindu/Muslim/Christian male or female belonging to any cast or creed and can be proceeded with under Section 494 of the Indian Penal Code provided ingredients of Section 494 are made out.”
Read the Judgment here.