Bigamy : Kerala High Court Issues Notice On Plea Challenging Constitutionality Of S.494 IPC

A plea has reached the Kerala High Court challenging the constitutionality of Section 494 of the Indian Penal Code, which provides punishment for bigamy.

When the matter came up before the Court on Tuesday, Justice K Haripal issued notice to the respondents. 

The petitioner, who is facing a criminal prosecution in a case related to bigamy, stated that the Indian Penal Code is a secular piece of legislation enacted with the sole purpose of uniform application to the whole of India and that it is applicable to every person, irrespective of caste, creed, sex, religion, race and even nationality.

Section 494 of IPC is the only provision of law that criminalizes an act purely based on applicable personal law and discriminates between people belonging to different religions, the plea contends.

According to the petitioner, Section 494 essentially classifies people based on their personal law and selectively criminalises the act of second marriage based on the applicable personal law. Such an approach in penal legislation is not only arbitrary but unreasonable and unconstitutional.

Therefore it was argued to be violative of Article 14 of the Constitution since it militates against the basic tenets of the constitutional mandate of equality.

Additionally, it was contended that the provision lacked the element of mens rea.

"In order to constitute a crime, the act had to be coupled with a criminal intention, which is summarised in the maxim actus non facit reum nisi men sit rea."  

Hence, it was alleged that the provision falls within the category of strict liability offences. 

As such, a statute that permits selective application of law and which is conspicuously silent about any criminal intention cannot be the basis either for prosecution or conviction of an individual, resulting in loss of liberty of an individual, the petitioner argued.

"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 law as it stands today, 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. In that view of the matter, permitting the act of bigamy to continue as an offence is not only anachronistic, but also arbitrary and illegal", the plea said.

Under such circumstances, the petitioner bereft of any other alternate efficacious remedy was contained to approach the Court seeking to challenge the constitutional validity of Section 494 of IPC and to limit the extent of Section 17 of the Hindu Marriage Act. 

The petition has been filed through Advocates P.G Jayashankar, P.K Reshma, Revathy P. Manoharan, S Rajeev and Anns Thanku Paul. 

Case Title: Rajan v. State of Kerala & Ors