Even If Second Marriage Took Place Outside India, Offence Of Bigamy U/S 494 IPC Cannot Be Said To Be Diluted: Supreme Court

The Apex Court was considering a matter of matrimonial forum shopping, wherein the husband after failing to get his first marriage dissolved under the Indian jurisdiction, approached the foreign court, procured a divorce decree under the foreign jurisdiction and thereafter solemnized a second marriage. The Appeal before the Apex Court was filed against the Andhra Pradesh High Court dismissing the petitions filed by the parents and second wife of a man under Section 482 of the Code of Criminal Procedure, 19737 seeking quashing of the criminal proceedings.

The Division Bench of Justice Prashant Kumar Mishra and Justice Shree Chandrashekhar held, “Now coming to the argument of accused No.1/husband that since he was a British citizen when the second marriage with accused No.4/second wife was solemnized and since the second marriage took place outside India, keeping in view the mandate of Section 4 of the IPC, he cannot be held liable. We cannot accept this submission in the manner canvassed as accused No.1/husband was married to respondent No.2/first wife in India under the Hindu rites, rituals and customs, thus, even if the second marriage took place outside India, the allegations under Section 494 of the IPC cannot be said to be diluted since enquiry for the offence of bigamy cannot be confined to the place of second marriage but must necessarily take into account the subsisting matrimonial relationship. Even otherwise, legal consequences flowing from the subsisting marriage cannot be defeated by a subsequent change in the nationality of accused No.1/husband.

Senior Advocate Nitya Ramakrishnan represented the Appellant while Senior Advocate Anjana Prakash represented the Respondent.

Factual Background

The first accused (husband) married the second respondent (first wife) at Sattenapalli, Andhra Pradesh, according to Hindu rites and customs. After the marriage, they resided in Hyderabad where husband was doing post-graduation from Osmania Medical College. In 2005, the husband went to the United Kingdom to pursue his career as a doctor. In 2006, the second respondent (first wife) joined accused husband in the United Kingdom. In August 2007, the first wife returned to her parental home in Andhra Pradesh, for delivery and their son was born. The husband alleged that despite repeated requests, the first wife did not return to United Kingdom. As the matrimonial relationship of the parties deteriorated, the husband instituted a divorce and custody proceedings before the competent Court at Narasaraopet, Guntur District, Andhra Pradesh, which were dismissed.

Against the dismissal of the divorce proceedings, the husband preferred an appeal before the High Court, but subsequently, he withdrew the same. Thus, the original Hindu marriage continued to subsist. The husband was granted citizenship of the United Kingdom (by naturalization) after 8 years of continuous residence. In 2013, the husband instituted divorce proceedings against the first wife before the Cambridge County Court in England. The divorce decree issued by the Cambridge County Court was made absolute wherein the marriage was dissolved on the ground of irretrievable breakdown of marriage.

In 2014, the husband married fourth accused (second wife). Almost after two years, the first wife lodged a complaint with the Sattenapalli Town Police Station, Guntur District, under Sections 494, 120B read with Section 34 of the Indian Penal Code, 1860, which was the subject matter of the Appeals. A chargesheet came to be filed against the husband and his parents as other accused persons respectively, but the name of the second wife was deleted from the chargesheet. It was, however, at the cognizance stage that the Magistrate decided to take cognizance against the second wife as well. Aggrieved by the same, the appellants filed petitions under Section 482 of the Cr.PC praying for quashing of the proceedings. Aggrieved by the dismissal of the petitions , the petitioners approached the Apex Court.

Reasoning

The Bench noted that the first accused/husband initially approached the Court of the Civil Judge, Guntur, Andhra Pradesh seeking dissolution of marriage with the first wife and having failed to obtain the required relief, he preferred an appeal before the High Court, but chose to withdraw it later. The Bench noted that instead of contesting his appeal here in India, the first accused/husband chose to file for divorce proceedings before a foreign court after allegedly obtaining the citizenship of the United Kingdom in the interregnum.

The foreign Court thereafter made the decree of divorce final, on the ground of irretrievable breakdown of marriage; a ground not statutorily recognized under the Hindu Laws under which the accused husband and the first wife were married. “Such a decree cannot automatically be accorded recognition in India. “In our view, the foreign divorce decree was passed in contravention of the existing matrimonial law in India and on a ground that is not even recognized statutorily. This not only violates the legal threshold of Section 13 of the CPC, which every foreign decree has to pass through, but also the observations made by this Court in Y. Narasimha Rao (supra) as to the conditions required to be fulfilled by a foreign decree to be enforceable in India”, it added.

The Bench considered the fact that the proceedings before the Foreign Court indicated that the second respondent/first wife did raise an objection to the jurisdiction of the foreign court. “Therefore, her participation cannot, at this stage, be equated with an unconditional submission to the jurisdiction of the foreign court and make the foreign decree binding on her”, it added while also clarifying that the legal consequences flowing from the subsisting marriage cannot be defeated by a subsequent change in the nationality of the husband.

The Bench next dealt with the allegations against the parents of the husband. It was alleged that they conspired with the husband for commission of the bigamy. As per the chargesheet, the accused parents made criminal conspiracy against the first wife for execution of certain properties in favour of the husband and thereby encouraged the second marriage of the accused husband with the second wife. The Bench was of the view that this was not sufficient material to hold allegations against the parents. “There is no material to show the existence of any agreement between the parties for commission of the offence of bigamy”, it added.

Coming to role played by the second wife, the Bench noted that apart from her alleged cohabitation or marriage with the husband, no other overt act was demonstrated that she participated in the alleged commission of the offence knowingly or even had the conscious knowledge that the first marriage of the husband was still subsisting. “In our view, criminal liability must be established qua each accused separately and, thus, continuance of the criminal proceedings against accused No.4 would result in an abuse of the process of law”, it held.

Thus, allowing the continuance of criminal proceedings against the accused husband for the offence under Section 494 of the IPC, the Bench quashed the proceedings with respect to the parents of the husband and his second wife.

Cause Title: A v. The State of A.P. Through Secretary and Others (Neutral Citation: 2026 INSC 1191)

Appearance

Appellant: Senior Advocate Nitya Ramakrishnan, AOR Rashmi Nandakumar, Advocate Yashmita Pandey

Respondent: Senior Advocate Anjana Prakash, AOR Guntur Pramod Kumar, Advocates Prerna Singh, Dhruv Yadav, Vanshikha Singh, Advocates Prakhar Sharma, Saumya Behki, AOR Anu Gupta, Advocates Anuj Prakash, Niraj Dubey, Pradum Kumar, Sohini Bardhan, Sohini Bardhan

Click here to read/download Judgment