Kerala High Court: On a petition filed by a public spirited person before this Court challenging that the provisions of Section 494 IPC are discriminatory on the ground of religion, a division bench of Ashok Bhushan and A.M. Shaffique JJ held that Section 494 IPC does not discriminate between Hindu/ Muslim/ Christian and can be proceeded against any citizen who commits the offence of bigamy irrespective of his/her personal law, provided that ingredients of Section 494 are made out.
In the instant case, looking at the increasing instances where culpable bigamous marriages have been resorted to harass and dupe innocent ladies in the name of personal law, a public spirited person filed a petition seeking a direction to register case under Section 494 of IPC against all citizens who commit the offence of bigamy irrespective of their personal laws. Rajit, the counsel for the petitioner contended that under Section 494 IPC there is no concept of any personal law and the section envisages punishment to everyone whosoever conduct a bigamous marriage.
The Court stated that “there cannot be any dispute to the submission as advanced by the counsel for the petitioner as the Indian Penal Code is a general code for India ”. The Court read the crucial words in Section 494 IPC and made it clear that the main ingredient to attract Section 494 IPC is to prove that the marriage contracted (second marriage in the event of husband or wife living) is ‘void’ on account of husband or wife living.
The Court noted that “any marriage performed by a Hindu after enforcement of the Hindu Marriage Act, 1955 where a spouse is living is void, and the person contracting such marriage shall be punishable under Section 494 IPC for bigamy”. The Court further noted that “Muslim personal law allows a Mohammaden to take four wives together, therefore if a Muslim male marries a fifth wife he can very well be prosecuted under Section 494 IPC. Similarly, a Muslim female contracting a second marriage can be proceeded with for offence under Section 494 IPC”. The Court concluded that Section 494 IPC does not discriminate between an offender belonging to Hindu/ Muslim/ Christian male or female belonging to any cast or creed and can be proceeded against any citizen irrespective of their personal laws provided that ingredients of Section 494 are made out.
The Court further made clear that a complaint under Section 198 (1) of CrPC for prosecution of offences against marriage can be made by a ‘person aggrieved by the offence’, therefore the prayer made by the petitioner (a public spirited person) cannot be entertained in the instant case, and accordingly dismissed the writ petition.IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 23RD DAY OF FEBRUARY 2015
WP(C).NO. 4559 OF 2015 (S)
VENUGOPAL.K
Vs
UNION OF INDIA
Dated this the 23rd day of February, 2015
This Writ Petition, filed as a public interest litigation,
seeks 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.
2. Brief facts of the case as stated in the Writ
Petition are: Petitioner claimed to be an Indian male
running a footwear business. He claimed to be actively
engaged in promoting social welfare. The reason for
filing the Writ Petition as has been stated in paragraph 7
of the Writ Petition are: A lady called Afitha married one
Abdul Kareem on 30.04.2014. According to the said lady,
Abul Kareem married her as per the Muslim customary
rites after convincing her that his first wife was a
mental patient and he would look after the said Afitha
properly. It is further stated that after the marriage
Abdul Kareem took the lady to his house and on the
next day the husband after taking 5 sovereigns of gold
ornaments dropped the lady in her relative's house and
thereafter did not bother to take care of the said lady.
The said lady has lodged a complaint against her
husband on which Crime No.1994 of 2014 was
registered for the offences punishable under Sections
406, 417, 420 and 498A IPC. It is stated in the Writ
Petition that there are various circumstances where
such culpable bigamous marriages have been resorted
to harass and dupe innocent ladies in the name of
personal law. Petitioner claims to have submitted an
application for obtaining information under the Right to
Information Act regarding registration of marriages of
Muslim male who has already one wife living.
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. In the above background petitioner has
come up with this Writ Petition with the following reliefs:
"(a) issue a Writ of Mandamus or any appropriate
writ or direction commanding the respondents to register
cases under Sec.494 IPC against all citizens, who commit
the offence of bigamy, irrespective of their personal law.
(b) Issue a Writ of Mandamus or any
respondent to register a case under Sec.494 IPC against
the 8th respondent.
(c) 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."
3. Learned counsel for the petitioner, Advocate
Rajit, submitted that Section 494 IPC does not
distinguish a Hindu/Muslim/Christian in so far as the
committal of the offence is concerned. It is submitted
that under Section 494 IPC no distinction can be made
between Hindu/Muslim/Christian in so far as the offence
of bigamy is concerned. It is clear that under Section
494 IPC there is no concept of any personal law and the
section envisages punishment to everyone whosoever
conduct a bigamous marriage. It is submitted that he
does not rely on the provisions of Article 44 of the
Constitution of India which contains the directive
principles of State policy enjoining the State to
endeavour to secure for the citizens a uniform civil code
throughout the territory of India.
4. We have considered the submissions of the
learned counsel for the petitioner and perused the
records.
5. Section 494 IPC is contained in Chapter XX
pertaining to (of offences relating to marriage). Section
494 is quoted below:
"494. Whoever, having a husband or wife living,
marries in any case in which such marriage is void by
reason of its taking place during the life of such husband
or wife, shall be punished with imprisonment of either
description for a term which may extend to seven years,
and shall also be liable to fine."
Section 494 begins with the words, "whoever having a
husband or wife living, marries....". The Section does
not in any manner draw a distinction between a man or
woman of one community or another. The Indian Penal
Code is a general penal code for India. Thus there
cannot be any dispute to the submission as advanced by
the learned counsel for the petitioner that Section 494
IPC does not distinguish in so far as the offence of
bigamy is concerned by a Hindu/Muslim/Christian.
6. 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. For eg., under
the Hindu Marriage Act, 1955, Section 5 of the Hindu
Marriage Act provides for condition for Hindu marriage.
Section 5 is quoted as below:
"5. Conditions for a Hindu marriage.- A
marriage may be solemnized between any two Hindus, if
the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the
time of marriage;
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid
consent to it in consequence of
unsoundness of mind; or
(b) through capable of giving a
valid consent, has been suffering from
mental disorder of such a kind or to such an
extent as to be unfit for marriage and the
procreation of children; or
(c) has been subject to recurrent
attacks of insanity.
(iii) the bridegroom has completed the age of
twenty one years and the bride, the age of eighteen
years at the time of the marriage;
(iv) the parties are not within the degrees of
prohibited relationship unless the custom or usage
governing each of them permits of a marriage between
the two;
(v) the parties are not sapindas of each other,
unless the custom or usage governing each of them
permits of a marriage between the two."
7. Under Section 11 void marriage has been
defined. Provisions says that any marriage solemnized
after the commencement of Act contravenes any of the
conditions specified in clauses (i), (iv) and (v) of Section
5, such marriage will be null and void. Thus any
marriage performed by a Hindu after enforcement of the
Hindu Marriage Act, 1955 where a spouse is living is
void marriage. Thus any person contracting such
marriage shall be punishable under Section 494 IPC.
Section 17 of the Hindu Marriage Act provides for
punishment on bigamy which is to the following effect:
"17. Punishment of bigamy.-Any marriage
between two Hindus solemnized after the commencement
of this Act is void if at the date of such marriage either
party had a husband or wife living; and the provisions of
sections 494 and 495 of the Indian Penal Code (45 of
1860) shall apply accordingly."
8. Now we come to the marriage performed by a
Muslim which has been made an issue in this Writ
Petition seeking a direction to register an offence under
Section 494 IPC in the event of a Muslim man performs
a second marriage.
9. Muslim personal law allowed a Mohammadan to
take four wives together. The challenge to Section 494
on the ground that it is ultra vires was repelled by the
Allahabad High Court in Kamala Kumari v. Mohan Lal
(II [1984] DMC 279 (Allahabad). It was argued before
the court that the provisions of Section 494 are
discriminatory on the ground of Religion. It was argued
that although under the Muslim Law a person can have
number of wives who will not be prosecuted for bigamy
but a Hindu who takes the second wife, is prosecuted for
bigamy is a clear case of discrimination. Repelling the
above argument, the High Court observed as follows:
"The crux always is whether the classification has
been based on any good and real relation or the
discrimination is arbitrary. The Constitution provided for
the amendment of personal laws as well. I may refer to
the concurrent list contained in the Constitution. At
serial No.5 marriage and divorce, infants and minors;
adoption; wills, intestacy and succession; joint family and
petition have all been included in concurrent list and the
Union of India as well as the State both are, therefore,
empowered to make any law concerning these matters.
Section 17 of the Hindu Marriage Act introduces the
principles of monogamy. It is noteworthy that Art.44 of
the Constitution provides that the State shall endeavour
to secure for the citizens a uniform Civil Code. Christian,
Parsis, Jews and Nayers happened to be already
monogamous. If a similar provision for monogamy has
been made for Hindus also, legislation is to be deemed
for the benefit of class of persons to whom the Hindu
Marriage Act is applicable and the argument that it is in
fact directed against that class, making a discrimination,
cannot hold water."
10. 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. Thus submission of the learned
counsel for the petitioner that offence under Section
494 IPC is discriminatory between
Hindu/Muslim/Christian is not acceptable. The sina qua
non for giving rise to an offence under Section 494 is
whether the second marriage performed by a husband
or wife when the spouse is living is void or not. In this
context judgment of the Apex Court in Dr.Srajmani
Stella Kujur v. Durga Charan Hansdah and
Another ([2001] 3 SCC 13) is relevant to be mentioned.
In the above case wife had filed a complaint that her
marriage was performed at Delhi in accordance with
the Hindu rites and customs and the husband
solemnized another marriage with accused No.2.
Parties belonged to Scheduled Tribe. The Apex Court
held that in the absence of specific pleadings, evidence
and proof of alleged custom making the second
marriage void, no offence under Section 494 IPC can
possibly be made out against the respondent. 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 following was laid down in paragraph 14:
"14. Nowhere in the complaint the appellant has
referred to any alleged custom having the force of law
which prohibits the solemnisation of second marriage by
the respondent and the consequences thereof. It may be
emphasised that mere pleading of a custom stressing for
monogamy by itself was not sufficient unless it was
further pleaded that second marriage was void by reason
of its taking place during the life of such husband or wife.
In order to prove the second marriage being void, the
appellant was under an obligation to show the existence
of a custom which made such marriage null, ineffectual,
having no force of law or binding effect, incapable of
being enforced in law or non est. The fact of second
marriage being void is a sine qua non for the applicability
of S.494 IPC. It is settled position of law that for fastening
the criminal liability, the prosecution or the complainant is
obliged to prove the (SIC) appellant herself appears to be
not clear in her stand inasmuch as in her statement in the
court recorded on 24th October, 1992 she has stated that
"I am a Hindu by religion". The complaint was dismissed
by the Trial Court holding, "there is no mention of any
such custom in the complaint nor there is evidence of
such custom. In the absence of pleadings and evidence
reference to Book alone is not sufficient", the High Court
vide the judgment impugned in this appeal held that in
the absence of notification in terms of sub-section (2) of
S.2 of the Act no case for prosecution for the offence of
bigamy was made out against the respondent because the
alleged second marriage cannot be termed to be void
either under the Act or any alleged custom having the
force of law."
11. To the same effect there is another judgment
of the Supreme Court in Lilly Thomas v. Union of
India (2000[6] SCC 224) wherein the following was
observed in paragraph 23:
"23. We have already seen above that under the
Hindu Marriage Act, one of the essential ingredients of a
valid Hindu marriage is that neither party should have a
spouse living at the time of marriage. If the marriage
takes place in spite of the fact that a party to that
marriage had a spouse living, such marriage would be
void under S.11 of the Hindu Marriage Act. Such a
marriage is also described as void under S.17 of the
Hindu Marriage Act under which an offence of bigamy has
been created. This offence has been created by
reference. By providing in S.17 that provisions of S.494
and 495 would be applicable to such a marriage, the
legislature has bodily lifted the provisions of S.494 and
495 IPC and placed them in S.17 of the Hindu Marriage
Act. This is a well known legislative device. The important
words used in S.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". These words indicate that 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"."
12. One of the prayers made in the Writ Petition is
a direction to the 7th respondent to register case under
Section 494 Code of Criminal Procedure against 8th
respondent. Section 198(1) of the Code of Criminal
Procedure provides as follows:
"198. Prosecution for offences against
marriage.- (1) No Court shall take cognizance of an
offence punishable under Chapter XX of the Indian Penal
Code (45 of 1860) except upon a complaint made by
some person aggrieved by the offence:
provided that-
(a) where such person is under the age of
eighteen years, or is an idiot or a lunatic, or is from
sickness or infirmity unable to make a complaint, or is a
woman who, according to the local customs and
manners, ought not to be compelled to appear in public,
some other person may, with the leave of the Court
make a complaint on his her behalf;
(b) where such person is the husband and he is
serving in any of the Armed Forces of the Union under
conditions which are certified by his Commanding Officer
as precluding him from obtaining leave of absence to
enable him to make a complaint in person, some other
person authorised by the husband in accordance with the
provisions of sub-section (4) may make a complaint on
his behalf;
(c) where the person aggrieved by an offence
punishable under section 494 or 495 of the Indian Penal
Code (45 of 1860) is the wife, complaint may be made
on her behalf by her father, mother, brother, sister, son
or daughter or by her father's or mother's brother or
sister or, with the leave of the Court, by an other person
related to her by blood, marriage or adoption."
The above prayer of the petitioner thus cannot be
entertained in view of the specific bar as stated in
Section 198(1) of the Code.
13. In view of the forgoing discussion we are of the
view that 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.
We thus are of the view that the petitioner is not
entitled to any of the reliefs as prayed for in the Writ
Petition.
Writ Petition is dismissed.
ASHOK BHUSHAN, Ag. C.J.
A.M. SHAFFIQUE, JUDGE.
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