If the first marriage is not a valid marriage no offence is committed by contracting a second marriage.
The Hindu Law does not recognize the right of a Hindu husband or a Hindu wife to contract a valid second marriage in the life-time of his or her spouse. The Hindu Marriage Act, 1955, prohibits bigamy even in the case of a Hindu husband. A Mohammedan can marry four wives at a time, but the marriage by a Mohammedan to a fifth wife is illegal. Polygamy in Mohammedans is limited up to four wives. Section 494, however, fully applies to Christians, Buddhists and Zoroastrians (both males and females) as their faith sanctions only monogamous marriages. The Exception to Section 494 provides the circumstances where a woman in the life-time of one husband or vice versa can marry another without incurring the offence of bigamy.
It provides that Section 494 does not extend (a) to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor (b) to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. In a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it must be proved. Admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case. Where, therefore, in prosecution for offences under Sections 494/109, I.P.
C., the evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed, the conviction of the accused persons on statement of the alleged bridegroom that he had sexual relationship with the alleged bride and on admission of the accused in a written statement that the parties married after the first marriage was dissolved, was not justified. (Kanwal Ram v. The Himachal Pradesh Administration, A.I.R.
1966 S.C. 614. The accused was alleged to have contracted a second marriage, both the parties being Hindu. The performance of ‘saptapadi’ was not proved. No plea was raised that the second marriage was performed as per custom which dispensed with ‘Saptapadi’. Oral evidence was adduced that the accused and his alleged second wife were living as husband and wife.
It was not found sufficient to draw an inference as to performance of ceremonies essential for valid marriage. The accused was entitled to be acquitted. (Shanti Dev Berma v. Smt. Kan- chan Prava Devi, 1991 Cri. L.J.