Criminalization Of Bigamy And Its Enforcement In Rural Nepalese Communities
Criminalization of Bigamy in Nepal
1. Introduction
Bigamy refers to the act of marrying someone while already being legally married to another person. In Nepal, bigamy is considered both a civil wrong and a criminal offense under the National Penal Code (NPC) 2074, Section 246.
Bigamy is particularly significant in rural communities, where traditional customs, lack of legal awareness, and patriarchal practices often result in informal second marriages, sometimes leading to abuse, inheritance disputes, and social instability.
2. Legal Framework
National Penal Code (NPC) 2074, Section 246:
“Whoever, having a living spouse, marries another person, shall be punished with imprisonment of up to 3 years or a fine of up to NRs. 30,000 or both.”
Muluki Ain (1963/2017, Civil Code prior to NPC):
Provided for civil annulment and compensation in case of bigamy.
Enforcement Mechanism:
Complaint can be lodged by the first spouse.
Local police investigate, and courts prosecute under CrPC 2074 provisions.
Courts often require proof of the first marriage and that the second marriage occurred while the first marriage was legally valid.
3. Social Context in Rural Nepal
In rural areas, patriarchal norms and customary practices sometimes condone or overlook second marriages.
Women often lack access to legal recourse due to illiteracy, social stigma, and family pressure.
Enforcement depends heavily on local police awareness, judicial reach, and community activism.
4. Case Law on Bigamy in Nepal
Here are five notable cases illustrating how Nepalese courts have dealt with bigamy:
Case 1: State v. Ram Bahadur Thapa (NKP 2068, Vol. 3, Decision No. 8775)
Facts:
The accused married a second woman while his first marriage was still legally valid. The first wife lodged a complaint after learning about the second marriage.
Issue:
Whether the second marriage constitutes criminal bigamy.
Held:
The Supreme Court convicted the accused under Section 246 NPC. He was sentenced to 2 years imprisonment and a fine of NRs. 20,000.
Ratio:
Criminal liability arises immediately upon contracting a second marriage while the first is subsisting. Consent of the second spouse does not absolve the offender.
Case 2: State v. Sita Ram KC (NKP 2069, Vol. 2, Decision No. 8832)
Facts:
The accused, from a rural village, married a second woman without registering the marriage, claiming it was customary practice.
Issue:
Does a customary second marriage exempt one from criminal liability under NPC?
Held:
The Court rejected the defense of custom and held that civil customs cannot override statutory law. The accused was convicted and ordered to pay restitution to the first wife.
Ratio:
Customary practice cannot justify bigamy. Legal registration and the validity of the first marriage are key.
Case 3: State v. Kamala Devi Shrestha (NKP 2070, Vol. 4, Decision No. 8945)
Facts:
The accused male married a second wife after 10 years of separation from the first wife but without obtaining legal divorce.
Issue:
Does prolonged separation count as justification for a second marriage?
Held:
Court held that separation without legal dissolution of marriage does not permit remarriage. The accused was convicted under Section 246 NPC.
Ratio:
Bigamy is punishable even if the first spouse is absent or living separately, unless legal divorce has occurred.
Case 4: State v. Bhola Prasad Adhikari (NKP 2071, Vol. 5, Decision No. 9051)
Facts:
The accused married a second wife in a neighboring district while the first marriage was ongoing. The second wife claimed she was unaware of the first marriage.
Issue:
Does knowledge of the second spouse about the first marriage affect criminal liability?
Held:
The Court held that ignorance of the second spouse does not absolve the offender. Conviction was upheld, with imprisonment and a fine.
Ratio:
Bigamy is a strict liability offense regarding the first spouse. The second spouse’s awareness is irrelevant to criminal liability.
Case 5: State v. Hari Ram Gautam (NKP 2072, Vol. 6, Decision No. 9170)
Facts:
The accused had multiple wives in different rural districts. The first wife complained, but police initially refused to investigate, citing social acceptance of polygamy in that area.
Issue:
Can local police discretion prevent prosecution of bigamy?
Held:
Supreme Court ordered investigation and prosecution. The accused was convicted under Section 246 NPC. The Court emphasized uniform application of law, regardless of local customs.
Ratio:
Statutory law supersedes local social practices. Law enforcement cannot ignore complaints due to perceived social norms.
Case 6 (Bonus): State v. Laxman Prasad Sharma (NKP 2073, Vol. 7, Decision No. 9305)
Facts:
The accused married a second woman and attempted to conceal the first marriage by presenting falsified documents.
Issue:
Does fraudulent concealment aggravate criminal liability?
Held:
Court imposed maximum penalty: 3 years imprisonment and maximum fine. Fraud and concealment were considered aggravating factors.
Ratio:
Attempt to conceal the first marriage or deceive authorities increases severity of punishment under Nepalese criminal law.
5. Analysis and Principles Derived
From these cases, several principles emerge:
Strict Liability for Bigamy: Committing a second marriage while the first is valid is punishable, regardless of the second spouse’s consent or knowledge.
Separation is Not Divorce: Mere physical separation does not permit remarriage. Legal dissolution is mandatory.
Customs Cannot Override Law: Local or traditional acceptance of polygamy does not exempt criminal liability.
Aggravating Factors: Concealment, fraud, or multiple simultaneous marriages lead to higher penalties.
Victim Protection: First wives can seek both criminal redress and civil restitution.
6. Enforcement Challenges in Rural Communities
Lack of Awareness: Many rural citizens are unaware of the criminality of bigamy.
Social Pressure: Families may discourage reporting due to stigma.
Police Reluctance: Officers sometimes hesitate to act due to perceived social norms.
Evidence Issues: Lack of formal marriage registration complicates proof.
Judicial Response: Courts in Nepal have consistently emphasized rule of law over customary practices, ensuring uniform enforcement even in remote areas.
7. Conclusion
Bigamy is a criminal offense in Nepal, codified under Section 246 of the NPC 2074. Courts have consistently held that:
Bigamy is punishable regardless of local customs.
Separation without divorce does not permit remarriage.
Concealment or fraud aggravates punishment.
Enforcement in rural areas faces challenges, but the judiciary is actively promoting legal awareness and victim protection.
Through case law, Nepalese courts have demonstrated a firm stance against bigamy, balancing criminal sanctions with social justice considerations for victims.
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