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Section 43: Penalty on married person marrying again under this Act

Special Marriage Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1954
Section 42 All 51 Sections of Special Marriage Act Section 44

Legal Commentary & Landmark Judgments: Section 43

Section 43 imposes criminal penalties on any married person who solemnizes a marriage under the Special Marriage Act while having a subsisting spouse, subjecting the offender to prosecution for bigamy.

  • Criminal Penal Liability for Bigamy: Any person who, being married, contracts a marriage under this Act, shall be deemed to have committed an offence under Section 494 or Section 495 of the Indian Penal Code (Sections 82 and 83 of BNS, 2023).
  • Voidness of Second Marriage: The marriage so contracted under the Act is void ab initio under Section 24(1).
  • Severity of Sanctions: Punishable with imprisonment of either description for a term which may extend to seven or ten years, alongside mandatory fine.
Key Landmark Precedents:
  • Sarla Mudgal v. Union of India (1995) 3 SCC 635: The Supreme Court held that a married person whose marriage was solemnized under civil or personal law cannot contract a second marriage under another law or after conversion without prior legal dissolution; such second marriage is void and constitutes bigamy under Section 43/44 SMA r/w Section 494 IPC.
  • Lily Thomas v. Union of India (2000) 6 SCC 224: Reaffirmed Sarla Mudgal, ruling that the strict bigamy prohibition in secular statutes like SMA protects women from fraudulent matrimonial abandonment.
Courtroom Practice & Strategic Litigation Guidance:

If a client discovers that the spouse had a prior subsisting marriage at the time of the SMA marriage, immediately file a petition for declaration of nullity under Section 24 and lodge a criminal complaint under Section 43 r/w Section 494 IPC / Section 82 BNS.

Section 42 All 51 Sections of Special Marriage Act Section 44