“Permitting bigamy to continue as an offence is anachronistic, arbitrary and illegal”: Plea filed in Kerala High Court against bigamy law

  • Gargi Chatterjee
  • 04:26 PM, 03 Nov 2021

A plea has been filed in the Kerala High Court wherein the constitutionality of Section 494 of the Indian Penal Code, which provides punishment for bigamy, has been challenged. Justice K. Haripal of the Kerala High Court has issued notice to the Kerala government on the plea.

The petitioner has contended that he, his daughter and other relatives have been facing criminal prosecution for commission of offences under Section 494 read with Section 34 of IPC. The petitioner is 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 subsisting in the eyes of law. Hence, the petitioner has filed the present plea 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 has contended that, Section 494 classifies people based on their personal law and selectively criminalises the act of second marriage on the basis of the applicable personal law. That 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. However, 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. Hence it is violative of Article 14 of the Constitution.

The petitioner has further contended that Section 494, 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. That 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

The petitioner has further contended that the law is against the basic tenets of equality mandated under the Constitution. The law only applying to Hindus, Christians or other communities, other than the Muslim community is arbitrary.

The act of bigamy can only be an irregularity under the respective personal laws, but it cannot be stretched to be an offence under the penal laws. It is a question that relates to the private morality of individuals and it ought not to be made a crime punishable under law," the plea said.

The petition filed through Advocate PG Jayshankar further stated that the law does not criminalize or prohibit any act of cohabitation of a married person with another, who is not the spouse of the married person. However, if such cohabitation is pursuant to a formal arrangement, such an arrangement is made culpable, and not the cohabitation. Hence, permitting the act of bigamy to continue, as an offence is not only anachronistic, but also arbitrary and illegal.

Thus the petitioner has prayed that S 494 is declared void and violative of Article 14 of the Constitution, in lieu of which it should be struck down.

A plea has been filed in the Kerala High Court wherein the constitutionality of Section 494 of the Indian Penal Code, which provides punishment for bigamy, has been challenged. Justice K. Haripal of the Kerala High Court has issued notice to the Kerala government on the plea.

The petitioner in the plea has contended that he, his daughter and other relatives have been facing criminal prosecution for commission of offences under Section 494 read with Section 34 of IPC. The petitioner is 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. Hence, the petitioner has filed the present plea 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 has contended that, Section 494 classifies people based on their personal law and selectively criminalises the act of second marriage on the basis of the applicable personal law. That 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. However, 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. Hence it is violative of Article 14 of the Constitution.

The petitioner has further contended that Section 494, 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. That 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

The petitioner has further contended that the law is against the basic tenets of equality mandated under the Constitution. The law only applying to Hindus, Christians or other communities, other than the Muslim community is arbitrary.

The act of bigamy can only be an irregularity under the respective personal laws, but it cannot be stretched to be an offence under the penal laws. It is a question that relates to the private morality of individuals and it ought not to be made a crime punishable under law," the plea said.

The petition filed through Advocate PG Jayshankar further stated that the law does not criminalize or prohibit any act of cohabitation of a married person with another, who is not the spouse of the married person. However, if such cohabitation is pursuant to a formal arrangement, such an arrangement is made culpable, and not the cohabitation. Hence, permitting the act of bigamy to continue, as an offence is not only anachronistic, but also arbitrary and illegal.

Thus the petitioner has prayed that S 494 is declared void and violative of Article 14 of the Constitution, in lieu of which it should be struck down.

Case Title: Rajan v. State of Kerala & Ors.