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KERALA HIGH COURT
Ashok Bhushan A.C.J. and A.M. Shaffique, J.
Venugopal —Petitioner
versus
Union of India —Respondent
Counsel for the Parties:
For the Petitioner:Rajit, Advocate
For the Respondent: N. Nagaresh, Asst. Solicitor General of India and Girija Gopal, Spl. Govt. Pleader.
IMPORTANT POINT:
The sine 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.
Headnote:Indian Penal Code, 1860—Section 494—Offence of bigamy—Writ petition as public interest litigation seeking a direction to register offence of bigamy against all citizens who committed offence irrespective of their personal law—Sine qua non for offence u/s 494 IPC was whether second marriage performed by a husband or wife when the spouse was living was void—Muslim personal law allowed a Mohammadan to take four wives together—Section 494 IPC does not discriminate between offender belonging to Hindu/Muslim/Christian male or female belonging to any caste or creed—Petitioner was not entitled to relief. (Paras 4, 5, 8, 9 & 12)
Result: Petition dismissed
JUDGMENT
Ashok Bhushan, A.C.J.—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.
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 30.4.2014. 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 Section 494 IPC against all citizens, who commit the offence of bigamy, irrespective of their personal law.
(b) Issue a Writ of Mandamus or any appropriate writ order or direction commanding the 7th respondent to register a case under Section 494 IPC against the 8th respondent.
(c) Declare that the offence of Section 494 will be attracted against all classes of citizens who conduct a bigamous marriage irrespective of their personal law.”
2. 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.
3. We have considered the submissions of the learned counsel for the petitioner and perused the records.
4. 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 v
