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.