Monogamy
One spouse at a time: section 5(i), void second marriage and bigamy
Scope: The rule of monogamy and bigamy. The other conditions of marriage are in the note on Conditions of Hindu Marriage, and plural marriages in the note on Polygamy.
In one minute
Monogamy means having only one spouse at a time. Section 5(i) of the Hindu Marriage Act, 1955 allows a marriage only if neither party has a spouse living. A second marriage during the life of the first spouse is void.
It is also a crime. Section 17 applies the bigamy offence, now section 82 of the Bharatiya Nyaya Sanhita, 2023. Converting to another religion does not free a Hindu from the first marriage.
Exam focus
- Frequency: Frequently asked
- Usually asked as: Both (long answer and short answer)
Legal provision
- Section 5(i), Hindu Marriage Act, 1955: neither party has a spouse living at the time of the marriage.
- Section 11: a marriage that breaks section 5(i) is null and void. Either party may ask for a decree of nullity.
- Section 17: a marriage between two Hindus is void if either party had a husband or wife living. The bigamy provisions, formerly sections 494 and 495 of the Indian Penal Code, apply.
- Section 82, Bharatiya Nyaya Sanhita, 2023: it replaces those sections. Marrying again during the life of a spouse is punishable with imprisonment up to seven years and a fine. Concealing the earlier marriage attracts imprisonment up to ten years and a fine.
Meaning and definition
Monogamy is the rule that a person may have only one spouse at a time. Bigamy is marrying again while the first spouse is alive and the first marriage subsists.
Detailed explanation
Step 1: the civil rule
Before 1955 Hindu law allowed a man to have several wives. The Act ended this. A marriage solemnized after the Act, where either party has a living spouse, is void from the start. The second spouse gets no status as wife or husband.
Example. Prakash in Guntur is married to Sita. He marries Leela, without divorcing Sita. The marriage with Leela is void.
Step 2: the criminal rule
Section 17 and the bigamy provision make the second marriage a crime. The offence needs a proper second marriage with the essential ceremonies. If the second ceremony is not proved, there is no bigamy.
Step 3: cases the offence does not cover
- A court has declared the earlier marriage void.
- The earlier spouse has been absent for seven years and not heard of as alive, and the facts are disclosed to the new spouse before the marriage.
Step 4: conversion does not help
A Hindu husband cannot escape monogamy by changing religion. In Sarla Mudgal, Hindu husbands with living wives converted to Islam and married again. The Supreme Court held that the first marriage subsists after conversion, and the second marriage is void and punishable as bigamy.
Step 5: the way out
A person who wants a second marriage must first end the first by divorce or have it declared void. Otherwise the only lawful course is to wait until the first spouse dies.
Exceptions and special rules
- Scheduled Tribes: the Act does not apply to them unless notified, so tribal custom may differ.
- Cohabitation: a woman who knowingly lives with a married man does not become his wife. Her claims are limited.
- Burden: the prosecution must prove a valid first marriage and a valid second ceremony.
Don't confuse: void marriage and bigamy
| Point | Void marriage | Bigamy |
|---|---|---|
| Nature | A civil status: no valid marriage | A crime |
| Source | Sections 5(i) and 11 | Section 17 and section 82 BNS |
| Needs a ceremony | The marriage must have been attempted | A properly solemnized second marriage |
Inside the concept. A husband performs the saptapadi with a second wife while the first is alive. The marriage is void, and he commits bigamy.
Just outside it. A husband only signs a document with another woman, with no rite. There is no second marriage, so there is no bigamy.
Common mistakes
- Writing that the second marriage is voidable. It is void.
- Saying that conversion ends the first marriage.
- Citing sections 494 and 495 of the Indian Penal Code alone. They are now section 82 of the BNS.
- Forgetting that the second ceremony must be proved.
Apply it
Problem
Imran, a Hindu in Kurnool with a living wife, converts to Islam and marries Zeenat. His first wife complains. Is he liable?
Issue
Does conversion allow a second marriage?
Rule
The first Hindu marriage subsists after conversion. A second marriage during its life is void and is bigamy.
Application
The first marriage was not dissolved. The conversion does not end it.
Conclusion
The second marriage is void, and Imran is liable under the bigamy provision, following Sarla Mudgal.
Leading case laws
- Sarla Mudgal v. Union of India
Facts. Hindu husbands with living wives converted to Islam and remarried. Four petitions were filed under Article 32.
Principle. The first marriage subsists after conversion. The second marriage is void, and the husband is guilty of the bigamy offence.
Why it matters. It closed the route of conversion for a second marriage.
- Lily Thomas v. Union of India
Facts. A Hindu husband produced a conversion certificate and married again within months. He kept calling himself a Hindu in later documents.
Principle. Mere conversion does not end the first marriage. The second marriage is void under sections 11 and 17 and is punishable. Sarla Mudgal gave no direction to enact a common civil code.
Why it matters. It confirms Sarla Mudgal and clarifies its scope.
How to write this answer in the exam
5-mark answer
- Meaning of monogamy.
- Section 5(i): void under section 11.
- Bigamy: section 17 and BNS section 82.
- Sarla Mudgal.
10-mark answer
- Position before 1955 and the change made.
- Civil consequence: void marriage.
- Criminal consequence: punishment and exceptions.
- Need for a proved second ceremony.
- Conversion: Sarla Mudgal and Lily Thomas.
- Comparison table.
Key points to remember
- Section 5(i): no spouse living at the time of marriage.
- A breach makes the marriage void (section 11) and punishable (section 17, BNS section 82).
- BNS section 82: up to seven years, and up to ten years with concealment.
- Conversion does not dissolve the first marriage.
- The second ceremony must be proved for bigamy.
Quick self-test
1. Is a second marriage in the life of the first spouse void or voidable?
Void.
2. Which BNS section punishes bigamy?
Section 82.
3. Does conversion end the first Hindu marriage?
No. See Sarla Mudgal.