Family Members Not Liable U/S 495 IPC For Accused’s Concealment Of First Marriage Unless They Abetted Or Conspired: Patna High Court

The Court further held that family members who neither marry nor personally conceal the earlier marriage cannot be charged directly under the provision unless the allegations attract common intention, abetment, or criminal conspiracy.

The Court was hearing an application under Section 482 of the Code of Criminal Procedure filed by the alleged husband’s parents and first wife, challenging the Magistrate’s order taking cognizance against them for offences under Sections 323, 420, 495 and 496 IPC and the subsequent rejection of their discharge application under Section 245 CrPC.

A Bench of Justice Soni Shrivastava observed: “… family members of an accused husband cannot be directly charged with the offence under Section 495 IPC being similar and based upon 494 IPC and can only be pursued against the individual entering into the second marriage while keeping the first marriage a secret to a new partner. The family members and relatives who have not committed the primary act of marrying or concealing the marriage himself, even presence or attendance at the wedding would not make them liable under the said offence and the provisions apply only to the erring spouse who contracts the subsequent marriage”.

The Bench further added: “A family member would only be dragged with charges of criminal conspiracy or abetment, but such ingredients are also not disclosed either in the complaint or in the exhaustive S.A. of the complainant, in the background that the complaint was filed after inordinate delay of 42 days after due thought and deliberation.”

Advocate Ravindra Kumar Singh appeared for the petitioners. Additional Public Prosecutor Abhay Kumar appeared for the State, while Advocate Dharmendra Kumar Paswan appeared for the complainant.

Background

The Court noted that the complainant alleged that she came into contact with a man through a matrimonial website, where he represented himself as unmarried and employed as a Sub-Inspector in the Bihar Police. She alleged that she married him at a temple on the strength of those representations and that substantial amounts, jewellery and other articles were subsequently given to him.

According to the complaint, the man did not take her to his home and kept her in a hotel. The complainant alleged that she later learnt from his parents and first wife that he was already married and had two children. She further alleged that his family members had acted in connivance with him by concealing his marital and employment status and facilitating the subsequent marriage.

The petitioners contended that the allegations concerning misrepresentation, receipt of money, concealment and physical assault were directed against the alleged husband. They argued that no specific overt act, financial receipt or participation in the marriage had been attributed to them.

The complainant opposed the application by contending that her complaint, statement on solemn affirmation, witness statements and documents disclosed sufficient prima facie material. She submitted that the petitioners’ knowledge and participation required examination at trial and could not be determined through a mini-trial under Section 482 CrPC.

Court’s Observations

Allegations Were Principally Directed Against The Alleged Husband

The Court observed that the principal allegations in the complaint concerned the alleged husband’s representations about his marital status and employment. It noted that the monetary transactions were alleged to have been made into his account, while only incidental conversations were attributed to his father.

The Court further noted that the complainant’s statement did not allege that the petitioners were present at the marriage. It found that the reference to gifts allegedly given to the family members was vague.

“Had there been any involvement of the family members in the said marriage, there would be no reason for the parents and the first wife of Amit Kumar coming to the hotel in December 2022, where she was staying with the said Amit Kumar to inform her that he is already married and also has children,” the Court observed.

The Court added that the allegations concerning ill-treatment and the scuffle were directed against the alleged husband. It held that the family members’ subsequent assurance to return the money and articles could not establish that they had known about or actively participated in the marriage.

Sections 494, 495 And 496 IPC Apply To The Spouse Contracting The Marriage

The Court examined Sections 494, 495 and 496 IPC and observed that Section 495 begins by referring to a person who commits the offence defined under Section 494 while concealing the former marriage from the person with whom the subsequent marriage is contracted.

The Court stated that Section 496 similarly applies to a person who dishonestly or fraudulently goes through a marriage ceremony despite knowing that no lawful marriage results.

“None of these provisions expressly contemplate the implication of members of the family of the person who actually gets married unlawfully and with fraudulent intention including concealment of earlier marriage. It is only the spouse against whom the aforesaid offences would be attracted,” the Court held.

The Court identified the ingredients of Section 494 IPC as requiring the accused spouse to have contracted the first marriage, contracted a second marriage during the subsistence of the first and performed both marriages in accordance with the personal law governing the parties.

The Court consequently held that no person other than the spouse entering the second marriage could be prosecuted for the substantive offence under Section 494 simpliciter. It applied the same reasoning to Sections 495 and 496 because both provisions depended upon the offence contemplated under Section 494.

Mere Knowledge Or Attendance Does Not Establish Liability

The Court relied on S. Nitheen and Others v. State of Kerala and Others (2024), in which the Supreme Court quashed a charge under Section 494 read with Section 34 IPC against relatives and friends, including persons who had attended the second marriage, while permitting the trial to continue against the persons who had entered the allegedly bigamous marriage.

The Court also referred to a subsequent Supreme Court decision concerning Sections 494 and 498A read with Section 34 IPC, which had relied upon S. Nitheen and distinguished the case of the alleged husband from that of his family members.

The Court stated that “mere knowledge that an act is being or has been committed by another person does not, by itself establish the requisite common intention.”

It further noted that the present complaint did not invoke Section 34 IPC concerning common intention, Section 109 IPC concerning abetment or Section 120B IPC concerning criminal conspiracy. The Magistrate had also not taken cognizance under any of those provisions.

The Court held that the prosecution against the petitioners became further untenable because the complaint and the complainant’s statement did not disclose the ingredients of conspiracy or abetment.

Offences Of Cheating And Assault Not Made Out Against Family Members

The Court found that the ingredients of Sections 323 and 420 IPC were also not disclosed against the petitioners. It observed that the alleged misrepresentation and cheating, as well as the alleged scuffle, had been specifically attributed to the alleged husband.

The Court also relied on the complainant’s statement that the petitioners themselves had informed her about the subsisting first marriage.

“In such circumstances, there appears to be a patent illegality in the order taking cognizance of the aforesaid offences against these petitioners whose case is clearly distinct from the case of the alleged husband,” the Court held.

Invalid Cognizance Vitiated The Subsequent Discharge Order

The Court found the original cognizance order against the petitioners legally unsustainable. It consequently held that the later order rejecting their discharge application could not survive.

Relying on State of Orissa v. Mamata Mohanty (2011) and Anand Kumar Mohatta v. State (NCT of Delhi) (2019), the Court observed that when the initial order is invalid, the proceedings consequentially founded upon it must also fail.

The Court further held that the case fell within categories one and seven identified in State of Haryana v. Bhajan Lal (1992), since the alleged offences were not made out against the petitioners and the allegations against the alleged husband’s family members were vexatious and attended by mala fides.

Conclusion

The Court held that continuing the criminal proceedings against the petitioners would constitute an abuse of the judicial process. It quashed the Magistrate’s cognizance order insofar as it concerned the alleged husband’s parents and first wife.

Consequently, the Court also set aside the subsequent order rejecting their discharge application and allowed their petition.

Cause Title: Indrajeet Rai and Others v. State of Bihar and Another

Appearances

Petitioners: Advocates Ravindra Kumar Singh, Dharmendra Kumar Paswan, Suraj Kumar, Rinki Kumari and Chandra Kishor

Respondents: Additional Public Prosecutor Abhay Kumar; Advocates Dharmendra Kumar Paswan and Deepshikha

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