Woman Not Having Knowledge Of Husband’s Earlier Subsisting Marriage Can’t Be Charged With Bigamy: Madras High Court

The petitioner arrayed as an accused approached the High Court by filing a Criminal Original Petition under Section 482 of BNSS, praying that she be enlarged on anticipatory bail in the event of her arrest in connection with a case on the file of the All Women Police Station.

The Single Bench of Justice N. Ramesh held, “It is seen that Section 82 BNS reproduces, in substance, former Sections 494 and 495 of the Indian Penal Code, 1860. Sub-section (1) punishes a person who, having a spouse living, marries again during the subsistence of that marriage. Sub-section (2) enhances the punishment where the offender has concealed the fact of the former marriage from the person with whom the subsequent marriage is contracted. On the plain language of the provision, the offender is the person who already has a living spouse; a person who is herself unmarried and marries such a person, without knowledge of the subsisting marriage, does not thereby become an offender under Section 82.”

Advocate S. Parthibarajan represented the Petitioner while Government Advocate (Crl.Side) R. Rajasekaran represented the Respondent.

Factual Background

The de facto complainant/wife of A1 had alleged that the petitioner/A2 entered into a marriage with A1. The petitioner claimed that she had no knowledge, at the time she entered into the marriage with A1, that he already had a subsisting marriage with the de facto complainant. It was the petitioner’s case that the said fact was concealed from her. She claimed that she was a person deceived by that concealment rather than a participant in any offence. The FIR was registered for offences punishable under Sections 82, 85, 49, 296(b) and 351(2) of the BNS.

Reasoning

The Bench explained that Section 82 (1) of the BNS punishes a person who, having a spouse living, marries again during the subsistence of that marriage. Reference was made to the judgment of the Karnataka High Court in Thimmappa v. Bharathi (2024), wherein it has been held that it is only the spouse who marries again during the subsistence of the earlier marriage who can be prosecuted under Section 494 IPC, and the relatives or the second spouse cannot be roped in without material showing knowledge and participation.

Dealing with the petitioner's specific case that she was unaware of the subsistence of A1’s marriage with the de facto complainant, the Bench stated, “Whether that plea of want of knowledge is true is a matter for investigation and, if necessary, trial; but for the purpose of anticipatory bail, in the absence of any material placed by the prosecution to show that the petitioner was aware of the subsisting marriage, the case against her under Section 82 does not, at this stage, disclose the gravity that would justify custodial interrogation.”

Reference was also made to Section 85 of the BNS (corresponding to Section 498A IPC), which punishes cruelty inflicted on a woman by her "husband or relative of the husband". According to the Bench, if the petitioner's alliance with A1 was, as she claimed, one she entered into believing herself to be his wife while in fact being deceived as to the subsistence of his earlier marriage, she did not thereby become a "relative of the husband of the de facto complainant within the meaning of Section 85. “She and the de facto complainant occupy, on the petitioner's case, the position of the two women deceived and wronged by the same man, not that of an accused and her victim”, it added.

The Bench took note of the fact that the core allegation under Section 82 was on the statutory language and the authorities directed at the person who already had a subsisting marriage i.e. A1, and not at the petitioner in her case of want of knowledge. The Bench made it clear that the allegation under Section 85 was not, prima facie, sustainable against the petitioner, who was not shown to be a "relative of the husband" of the de facto complainant, and the petitioner was a woman who had approached the Court promptly.

Thus, the Bench allowed the application and ordered the petitioner to be released on bail in the event of arrest or on her appearance on the condition that she would execute a bond for a sum of Rs 25,000 with two sureties each for a like sum to the satisfaction of the Magistrate concerned.

Cause Title: A v. The State (Case No.: CRL OP No. 22231 of 2026)

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