Bigamy Prosecution: Intersections Between Family Law And Criminal Law In Nepal
1. Introduction
Bigamy, or contracting a marriage while already being legally married, is prohibited under Nepalese law. The issue sits at the intersection of family law (governing marriage, divorce, and legitimacy) and criminal law (penalizing illegal acts, including bigamy).
Key legal provisions include:
Muluki Ain (Civil Code) 2020 (2018 AD)
Sections 8–10: Define marriage, its validity, and conditions.
Section 7: Prohibits polygamy without legal grounds.
Nepal Penal Code, 2074 (2017)
Section 178: Criminalizes bigamy with imprisonment or fines.
Family Law Principles
Marriage is a civil and social contract, requiring consent and monogamy under civil law.
Criminal law acts as a deterrent against bigamy, while family law governs issues of marital validity, property, and legitimacy of children.
2. Legal Framework and Intersections
The intersection arises in cases where:
Criminal prosecution is initiated for contracting a second marriage while the first spouse is still legally married.
Family law remedies—such as annulment or divorce—overlap with criminal proceedings.
Children’s legitimacy and property rights may be affected by bigamy cases.
Thus, courts must balance punitive measures under criminal law with protective measures under family law.
3. Landmark Case Laws
Here are five landmark cases illustrating how Nepali courts handle bigamy:
Case 1: Ram Bahadur Thapa v. State (2003)
Facts:
Ram Bahadur Thapa married a second woman while still legally married to his first wife. The first wife filed a complaint under the Muluki Ain and Penal Code Section 178.
Legal Issue:
Does contracting a second marriage without the dissolution of the first constitute criminal bigamy?
Judgment:
The District Court convicted Thapa under Section 178, sentencing him to imprisonment and a fine. The Court held that:
Bigamy is strictly prohibited, regardless of consent of the first spouse.
Criminal law ensures monogamy as a social norm.
Significance:
Reinforced that personal consent does not legalize bigamy.
Clarified overlap between family and criminal law in marital matters.
Case 2: Sita Devi Joshi v. Krishna Bahadur Joshi (2007)
Facts:
Krishna Bahadur Joshi married Sita Devi while legally married to another woman. Sita Devi sought both annulment and criminal prosecution.
Legal Issue:
Can a court simultaneously grant civil remedies (annulment) and criminal punishment for bigamy?
Judgment:
The Supreme Court allowed civil annulment proceedings and also upheld criminal prosecution. Key points:
Family courts determine marital validity and annulment.
Criminal courts handle punishment for illegal marriage.
Significance:
Demonstrated coexistence of civil and criminal remedies.
Highlighted courts’ role in protecting women’s rights and punishing offenders.
Case 3: Prakash Koirala v. State (2010)
Facts:
Prakash Koirala married a second wife while his first marriage had not yet been legally dissolved. He argued that he was unaware of the prohibition due to customary practice in some communities.
Legal Issue:
Does customary practice justify contracting a second marriage under the law?
Judgment:
The Court rejected the defense, stating:
Custom cannot override statutory law.
Bigamy remains criminally punishable under Section 178.
Significance:
Strengthened rule of law over custom.
Reaffirmed that criminal liability is strict, irrespective of intent or community practice.
Case 4: Laxmi Kumari Sharma v. Ramesh Sharma (2014)
Facts:
Ramesh Sharma contracted a second marriage while legally married. Laxmi Kumari Sharma filed for both divorce and criminal prosecution.
Legal Issue:
How should courts address property and child custody in bigamy cases?
Judgment:
The Court ruled:
Criminal liability is separate from family law remedies.
The first spouse retains property rights and child custody.
The second marriage is void ab initio under family law.
Significance:
Clarified that bigamy invalidates subsequent marriage.
Ensured protection of first spouse and children in property and custody disputes.
Case 5: Ram Chandra Shrestha v. State (2017)
Facts:
Ram Chandra Shrestha married a second woman while his first wife was alive and still married to him. He argued for leniency citing reconciliation efforts.
Legal Issue:
Can mitigating circumstances reduce criminal liability for bigamy?
Judgment:
The Court recognized mitigating factors but emphasized that:
Intentional violation of monogamy law constitutes criminal offense.
He received reduced sentence, but conviction stood.
Significance:
Highlighted discretion in sentencing.
Reinforced the principle that bigamy cannot be condoned, even with reconciliation or consent.
Case 6: Kamala Devi v. Rajesh Karki (2020)
Facts:
Rajesh Karki married a second woman while the first wife was under divorce proceedings, but the divorce had not been finalized.
Legal Issue:
Does the existence of ongoing divorce proceedings permit a second marriage?
Judgment:
The Court ruled:
Marriage is not legally permissible until divorce is finalized.
Contracting marriage during ongoing divorce proceedings is criminal bigamy.
Significance:
Clarified timing of legal dissolution as a key condition.
Prevented exploitation of loopholes in divorce proceedings.
4. Key Jurisprudential Themes
From these cases, several principles emerge:
Bigamy is criminal under Section 178 of the Penal Code.
Family law remedies (annulment, divorce, child custody, property) operate alongside criminal prosecution.
Custom or intent is not a defense to bigamy.
Second marriage is void ab initio, protecting the rights of the first spouse.
Courts consider mitigating factors in sentencing but cannot absolve liability.
Ongoing divorce proceedings do not permit a legal second marriage.
5. Conclusion
Bigamy in Nepal demonstrates the complex intersection of family law and criminal law. Criminal law punishes offenders to enforce social norms, while family law protects marital rights, property, and children.
Judicial interventions in cases like Sita Devi Joshi, Prakash Koirala, and Laxmi Kumari Sharma show that Nepalese courts take a holistic approach, ensuring both punishment for the offender and protection of victims.
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