Bigamy and False Declarations under the Special Marriage Act

Monogamy is a core condition of a special marriage, and the Act backs it with criminal sanctions. Section 43 punishes a married person who marries under the Act, and section 44 punishes a person married under the Act who marries again; in both cases the later marriage is void. Section 45 punishes false declarations, and section 46 punishes a Marriage Officer who solemnizes a marriage in breach of the Act. Since 1 July 2024, the Indian Penal Code provisions they refer to are read as the corresponding sections of the Bharatiya Nyaya Sanhita. This note covers each provision.

1. The Penal Provisions

Figure 1: Sections 43 to 46

• Section 43. Save as otherwise provided in Chapter III, a person who, being already married, procures a marriage of himself or herself to be solemnized under the Act is deemed to commit an offence under s.494 or s.495 of the IPC, and the marriage so solemnized is void.
• Section 44. A person whose marriage is solemnized under the Act and who, during the lifetime of the spouse, contracts any other marriage is subject to the penalties in ss.494 and 495 of the IPC, and the later marriage is void.
• Any other marriage. Section 44 applies whatever the form of the second marriage. A person married under the Act cannot escape it by marrying again under personal law or after converting to a religion that permits polygamy.
• Section 45. Every person making, signing or attesting a declaration or certificate required by the Act, which is false and which he knows or believes to be false or does not believe to be true, is guilty of the offence under s.199 of the IPC.
• Section 46. A Marriage Officer who knowingly and wilfully solemnizes a marriage in breach of the Act's provisions on notice, the objection period and the like is punishable with imprisonment up to one year, fine up to five hundred rupees, or both.

2. The Bharatiya Nyaya Sanhita

Figure 2: Corresponding provisions

• Reading the references. The IPC was repealed by the Bharatiya Nyaya Sanhita, 2023 with effect from 1 July 2024. Under the General Clauses Act, references to repealed provisions are read as references to the re-enacted ones.
• Bigamy. Section 494 IPC is now s.82(1) BNS (up to seven years and fine) and s.495 is s.82(2) (up to ten years and fine, where the former marriage is concealed)
• False declaration. Section 199 IPC is now s.236 BNS, punishable as for giving false evidence.

3. Related Points

• Saving, s.42. Nothing in the Act affects the validity of any marriage not solemnized under it, nor is the Act a bar to marriage in any other form. A couple may still choose personal law.
• Bigamy by conversion. In Sarla Mudgal v Union of India (1995), the Supreme Court held that a Hindu husband who converts to Islam to marry again, without dissolving his first marriage, commits bigamy, since the first marriage subsists. Under the Special Marriage Act, s.44 makes the position explicit.
• Chapter III exception. Section 43 is subject to Chapter III because registration of an existing marriage between the same parties is not a second marriage.

4. Frequently Asked Questions

Can a person married under the Special Marriage Act marry again after converting to Islam?

No. Section 44 applies to any other marriage contracted during the lifetime of the spouse, whatever its form. The second marriage is void and the person is liable under s.82 of the BNS (formerly ss.494 and 495 IPC). Sarla Mudgal (1995) reached the same result for Hindu marriages.

What is the punishment for a false declaration under the Special Marriage Act?

Under s.45, making, signing or attesting a false declaration or certificate required by the Act is an offence under s.199 IPC, now s.236 BNS, punishable as for giving false evidence.

5. Related Topics

• Topic 3: Conditions for a Special Marriage, Section 4. Monogamy as a condition.
• Topic 12: Void Marriages, Section 24. Nullity of a bigamous marriage.