Marriage of the Unmarried: Legal Implications of Live-in Relationships on Bigamy

The Supreme Court rightly struck down the offence of adultery in the landmark judgement of Joseph Shine v. Union of India,[1] and made it a ground for divorce, on the grounds that the offence violated a woman’s right to equality and dignity. An unexpected consequence of this progressive step was the vacuum created by the law in relation to matters of infidelity within marriage. This blog discusses the grey area which exists in the prevailing penal laws of India, owing to interplay of adultery, bigamy and live-in relationships. A number of cases have emerged where one of the spouses starts living with someone else during the subsistence of marriage. Because no law punishes such behaviour, the spouse from the first marriage has no remedy except divorce. This blog brings in the concept of ‘presumption of marriage’ under live-in relationships in order to explore more available legal remedies in such cases.

The Issue of the ‘Valid Second Marriage’

A recent ruling of the Rajasthan High Court reads as follows: ‘It is settled law that the offence punishable under Section 494 IPC would be made out against any person if he/she solemnises a marriage during the lifetime of either the husband or wife; as the case may be. The mere fact of a man and a woman living together as husband and wife would not be considered as an offence punishable under Section 494 IPC if they have not performed a valid marriage in accordance with the existing law.’[2] Accordingly, citing the lack of evidence of a second marriage, the court quashed the criminal proceedings against the petitioner husband.

This ruling is not surprising as this interprets the definition of bigamy under section 494 of the Indian Penal Code (IPC) literally. The Supreme Court has, in the case of Gopal Lal v. State of Rajasthan,[3] delineated the three essential ingredients of the offence of bigamy. They are as follows:

(1) That the accused spouse must have contracted the first marriage,

(2) That while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and

(3) That both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.

It is notable that the third essential laid down by the Supreme Court regarding the performance of necessary ceremonies has not been explicitly stated in the section of the IPC which talks about bigamy. Section 494 lays down an exception that the section does not extend to any marriage which has been declared as void by any competent court. However, it is pertinent that in cases such as the present case in question, no court had declared the marriage as void; the court presumed that the marriage was void because it did not abide by the third essential laid down by the Supreme Court in Gopal Lal.[4]

Interestingly, in a series of recent judgements of the Punjab and Haryana High Court, a different viewpoint has been expressed. In cases where the divorce from the first marriage was pending and the husband had started living with some other woman, the court has time and again remarked that ‘married man living a lustful and adulterous life with unmarried woman, may constitute bigamy.’[5]

The Concept of Presumption of Marriage

It may be useful to take a look at the evolution of live-in relationships. Live-in relationships are a testimony to the ever-evolving nature of our social fabric. With the gradual erosion of the traditional concept of marriage, owing to globalisation and modernisation, India has also seen the emergence of live-in relationships. This is a system wherein a man and a woman cohabit and project themselves as husband and wife to the society, without having completed the traditional rites or formalities of marriage as per personal law or civil law.

The Supreme Court has taken note of the changing times and respected the choice of people to spend their life together without marrying. In Madan Mohan Singh v. Rajni Kant, the court ruled that when two consenting adult individuals live together for a long time, it cannot be termed as a ‘walk in and walk out’ relationship, rather there is a presumption of marriage and against concubinage between them.[6] The court also held the same in context of inheritance, while entitling the children out of a live-in relationship to a share in the property of their father on the ground that the couple had been living together for a long and consistent period of time.[7] This is also in keeping with the sections 50 and 114 of the Indian Evidence Act, where cohabitation and conduct are giving importance while presuming a man and a woman to be married.[8]

Harmonisation of the Law

It can be understood that the presumption of marriage is a legal fiction created by the courts in order to give certain rights to a couple which would normally be present in a marriage. However, this now accepted legal fiction is at odds with the ruling of the Rajasthan High Court in question. While quashing the criminal proceedings against the husband, the court did not apply the notion of presumption of marriage to the impugned relationship. Had the court done this, the impugned relationship would have been considered as a valid marriage, and the offence of bigamy would have been made out, making the husband liable for punishment under section 494.

The Delhi High Court’s observations in a similar matter in the case of Pooja Sharma Bajaj v. Kunal Bajaj are thought-provoking. The courts says that the safeguards provided by the law to live-in relationships should not come at the expense of the legal rights and protections of the lawfully wedded spouses.[9] The relationships, unions and marriages which occur secretly during the subsistence of a valid marriage are absolutely against the sanctity of marriage which is founded on the principles of mutual trust and faithfulness. Therefore, the absence of adultery from the category of offences under the Indian Penal Code should not empower individuals to exploit the loopholes of law.

Conclusion

The above-discussed string of cases of the Supreme Court and various High Courts present a question of law, which has not been settled yet. This presents an opportunity to the court to can delve into the concept of presumption of marriage in live-in relationships, and its implications in the law on bigamy as well. Admittedly, the concept of presumption of marriage has not been heard to be used in penal laws. However, the court must take into account the interests of all the parties, especially the spouse and children from the first marriage, in order to determine the status of the impugned relationship and develop the law in a progressive fashion. The current interpretations of the law on bigamy need to be tailored to the changing nature of society, and to account for the kinds of relationships that are now emerging. This way, the court will be able to prevent the obsolescence of the law and ensure that it adapts with the changing times.

[1] Joseph Shine v Union of India 2019 (3) SCC 39.

[2] Ratna Singh, ‘Not bigamy if married man lives with another woman as long as they do not marry: Rajasthan High Court’ (Bar and Bench, 21 May 2024) <https://www.barandbench.com/news/not-bigamy-married-man-lives-with-another-as-long-as-they-do-not-marry-rajasthan-high-court> accessed 23 May 2024.

[3] Gopal Lal v State of Rajasthan (1979) 2 SCC 170.

[4] ibid.

[5] Reena Devi v State of Punjab 2023 SCC OnLine P&H 2818; Lakhvir Kaur v State of Punjab 2023 SCC OnLine P&H 4102; Kailash Rani v State of Punjab SCC OnLine P&H 4643.

[6] Madan Mohan Singh v Rajni Kant 2010 (9) SCC 209.

[7] SPS Balasubramnayam v Suruttayan 1992 Supp (2) SCC 304; Tulsa v Durghatiya (2008) 4 SCC 520.

[8] Vijendar Kumar, ‘Live In Relationship: Impact on Marriage and Family Institutions’ <https://www.academia.edu
/1881774/Live_In_Relationship_Impact_on_Marriage_and_Family_Institutions> accessed 23 May 2024.

[9] Pooja Sharma Bajaj v Kunal Bajaj 2024 SCC OnLine Del 38.