"Husband" U/S 80, 85 BNS Covers Legally Married Man, Not Person In Void Second Marriage: Allahabad High Court Grants Bail In Dowry Death Case

The Court was hearing a bail application in a case registered under Sections 85 and 80(2) BNS and Sections 3/4 of the Dowry Prohibition Act, where the applicant argued that the deceased was his second wife and that the marriage was performed during the subsistence of his first marriage.

A Bench of Justice Arun Kumar Singh Deshwal, while deciding the preliminary legal issue, observed:

“In view of the above analysis, it is clear that the presumption of dowry death in case of unnatural death within seven years of marriage as per Section 80 B.N.S. (Section 304B I.P.C.) read with Section 118 of B.S.A. should be interpreted strictly in such a manner which favours to an accused, therefore, this Court is of the view that the word "husband" in section 80 BNS as well as Section 85 B.N.S. will cover person only when he is legally married to a women, not the person whose marriage is itself void with a women.”

Advocate Suneel Kumar appeared for the applicant, while State Law Officer Mayuri Mehrotra appeared for the State.

Background

The applicant sought bail during trial in a dowry death case. His principal submission was that the deceased was his second wife and that the second marriage was void because it was performed while his first wife was alive.

The Court framed the preliminary legal issue whether a person who performed a second marriage during the lifetime of his first wife would fall within the expression “husband” for Section 80 BNS and Section 118 BSA.

The State relied on decisions that had taken a wider view of the term “husband” in cruelty and dowry death provisions, including where parties were living in a void or voidable marital relationship or a relationship like marriage.

The applicant, however, relied on the strict interpretation of penal provisions and on Supreme Court decisions holding that where the marriage itself was void, prosecution or conviction under cruelty provisions against the alleged husband would not be sustainable.

Court’s Observations

The Court examined Section 80 BNS, which corresponds to Section 304B IPC, and Section 85 BNS, which corresponds to Section 498A IPC. It noted that both provisions use the expression “husband” or “relative of husband”.

The Court observed that Section 80 BNS creates a presumption of dowry death in cases of unnatural death within seven years of marriage where cruelty or harassment soon before death is shown in connection with dowry demand.

It then held that because the provision is penal in nature, ambiguity must be resolved in favour of the accused. The Court relied on Tolaram Relumal v. State of Bombay (1954) and M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (2021) on strict construction of penal statutes.

The Court quoted Tolaram Relumal (1954): “The question that needs our determination in such a situation is whether Section 18(1) makes punishable receipt of money at a moment of time when the lease had not come into existence, and when there was a possibility that the contemplated lease might never come into existence. It may be here observed that the provisions of Section 18(1) are penal in nature and it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty.”

The Court considered Reema Aggarwal v. Anupam (2004), where the Supreme Court had adopted a purposive interpretation of the term “husband” for the limited purpose of Sections 498A and 304B IPC.

However, the Court found that the later three-judge Bench decision in Shivcharan Lal Verma v. State of Madhya Pradesh (2007) had taken a different view where the marriage itself was null and void. It also relied on P. Sivakumar v. State (2023), where the Supreme Court held that conviction under Section 498A IPC would not be sustainable where the marriage was found null and void.

The Court stated: “This Court is of the view that though there was a detailed reasoning in the case of Reema Aggarwal (supra) for including the alleged husband of void marriage for the purpose of Section 498A/ 304B I.P.C. but subsequent judgement of larger bench in the case of Shivcharan Lal Verma (supra) took a different view, therefore, that must prevail and the same was again reiterated in the year 2023 by the Apex Court in the case of P. Shivakumar v. State, 2023 (supra).”

The Court added that the word “husband” is not defined in any statute, but as per Black’s Law Dictionary, it means a married man with a lawful spouse living.

The Court clarified that its conclusion would not apply mechanically in every case of alleged second marriage.

It held that where there is doubt about the first marriage, a person living as “husband” in an alleged second marriage would be covered under Sections 80 and 85 BNS because criminal proceedings cannot be used to decide complex questions of marital validity.

The Court further held that if a man performs a second marriage without disclosing his existing valid marriage and continues to live with the woman as her husband, and the woman remains unaware of the earlier marriage till the offence, he would be deemed “husband” for Sections 80 and 85 BNS, since he cannot be allowed to take advantage of his own wrong.

The Court stated that a second marriage performed during the subsistence of the first marriage would be void if the first marriage was performed under the Special Marriage Act, 1954; Foreign Marriage Act, 1969; Christian Marriage Act, 1872; Parsi Marriage and Divorce Act, 1936; or Hindu Marriage Act, 1955.

It further clarified: “Therefore, if the first marriage is performed under any of the above mentioned acts, then the second marriage would be void. However, in the case of Muslim, if the marriage is performed as per Sharia law, second, third and fourth marriage shall also be valid and in such cases if a Muslim person is living as a husband whether with second, third or fourth wife would also cover under the definition of husband for the purposes of Section 80 and 85 BNS.”

After deciding the legal issue, the Court proceeded to consider bail on merits. The applicant submitted that the first informant admitted that the marriage with the deceased was his second marriage during subsistence of the first marriage, and that the first wife was alive and residing with them.

The State opposed bail but could not dispute the factual position recorded by the Court. The applicant also submitted that the deceased had consumed poison, no specific allegation had been made against him, he had no criminal history, the chargesheet had been filed, and custodial interrogation was no longer required.

The Court, without expressing any opinion on the merits, held that the applicant was entitled to bail.

Conclusion

The Court allowed the bail application and directed the applicant’s release on furnishing a personal bond and two sureties, subject to conditions including non-tampering of evidence, cooperation with the trial, and not indulging in any criminal activity after release.

It also directed the trial court to send the release order through the Bail Order Management System to ensure early release.

Cause Title: Sarvesh Alias Chhotu Alias Chhotelal v. State of U.P. (Neutral Citation: 2026:AHC:151064)

Appearances

Applicant: Advocate Suneel Kumar

State: State Law Officer Mayuri Mehrotra and A.G.A. Rakesh Kumar Mishra

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