H married W in the year 2000 and deserted her in 2001. She made all possible enquirers and came to know that her husband died in a ship accident in a country outside India. After seven years she married another man in 2008 thinking that she was a widow. She explained about her first marriage to second husband. One day, H suddenly reappeared and filed a criminal case against W for the offence of bigamy. Defend W.
1. Whether W has guilty intention to remarry?
2. Whether the act of W amounts to bigamy?
Mens rea: Actus non facit reuim, nisi mens sit rea
The facts of the instant problem is similar to R V. Mrs. Talson, (1889) 23 QBD 168, Mr. Talaon married Mrs. Talson in 1880 and deserted her in 1881. She made all possible enquiries and came to know that her husband died in a ship accident in America. Afterr seven years she married another man in 1887 thinking that she was a widow. She explained about her first marriage to second husband.
One day, Mr. Talson suddenly reappeared and filed a criminal case against Mrs. Talson for the offence of bigamy. The Trial Court punished her but the Court of Appeal did not punish her because she had no mens rea. It is well settled principle of Common Law that mens rea is an essential ingredient of criminal offence. Actus non facit reuim, nisi mens sit rea means 'the act itself does not constitute crime unless done with a guilty mind'. Mere physical act without criminal intention is not a crime. Mens rea is an essential ingredient of every criminal offence. The prosecution must prove the criminal intention to punish an accused person.
R.v. Prince, ( 1875) LR 2CCR 154, it has been held that the prince's belief about the age of the girl was not a defence. 16 Judges unanimously decided that even though the accused had said that he had no mens rea he had committed an unlawful act which was not only a legal wrong but also a moral wrong. Therefore, the accused was punished for the offence of kidnapping.
In the instant problem, W has no mens rea i.e. guilty intention to remarry. Hence the act of W does not amount to bigamy.
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