Does a wife have to first prove that her husband performed Saptapadi with another woman before a court can take cognisance of alleged bigamy? The Madhya Pradesh High Court answered this while dealing with a habeas corpus plea involving a husband who admitted eloping with his wife’s cousin.

GWALIOR: The Madhya Pradesh High Court has held that a complainant is not required to prove the actual performance of Saptapadi or other marriage rituals at the stage of taking cognisance of an alleged bigamy offence, where there are allegations that the husband contracted a second marriage while the first marriage was still subsisting.

A Division Bench of Justice G.S. Ahluwalia and Justice Anuradha Shukla was hearing a habeas corpus petition filed by Radha Prajapati, who alleged that her husband was missing.

During earlier proceedings, the Investigating Officer showed the Court a video in which the husband, his father and grandfather were seen together. The husband later appeared before the High Court voluntarily.

He told the Court that he had gone away with the daughter of his wife’s Bua, described in the proceedings as his “Sali,” and travelled to different cities. They first went to Bhopal and then Rajkot, where they stayed separately without informing his wife or father.

The husband also admitted that after contacting his mother, they “deliberately switched off with an intention to mislead the police so that their location may not be traced.” They thereafter travelled to Panvel and Goa before returning to Bhopal.

As a missing-person inquiry concerning the woman was already pending, both were brought back to Bhind. Police kept the woman at a One Stop Centre and recorded her statement before the SDM.

The husband later went to Jaipur and started working as a delivery boy. The woman was doing stitching work. He admitted before the High Court that they had developed a physical relationship, but claimed that he had not married her.

The wife’s counsel disputed this claim and submitted that the husband had already married the woman.

This brought the Court to the question of whether a complainant alleging bigamy must prove the actual performance of Saptapadi before cognisance can be taken.

The High Court relied upon the Supreme Court judgment in K. Neelaveni v. State Represented by Inspector of Police & Ors., (2010) 11 SCC 607. It held that, at the stage of taking cognisance, the complainant need not establish actual performance of the second marriage.

The Court clarified that where there are allegations that the husband performed a second marriage during the subsistence of the first marriage, such allegations can be sufficient for taking cognisance of an offence punishable under Section 494 IPC/Section 82 BNS.

Importantly, the ruling concerns the threshold for taking cognisance of a bigamy allegation. It should not be read as dispensing with the evidentiary requirements that may ultimately have to be satisfied for proving the offence at trial.

The High Court also dealt with the procedural position concerning a non-cognizable offence. It observed that a charge-sheet filed in such a matter can be treated as a complaint and the Investigating Officer can be treated as the complainant. The Court further observed that there is no bar on registration of an FIR merely because the offence is non-cognizable; the statutory restriction operates in relation to cognisance by the Court.

The case then took another turn when the husband admitted that the child born from his marriage with the petitioner was his child. He told the Court that his monthly income was only Rs.13,000.

The High Court, however, held that his stated salary alone could not determine his responsibility towards the child. Referring to the Supreme Court's ruling in Rajnesh v. Neha, (2021) 2 SCC 324, the Court noted that “an able-bodied person is also required to maintain his child” and held that the husband “cannot run away from his liability to maintain the child.”

The husband volunteered to deposit at least Rs.6,000 per month for the child. The Court accordingly directed the wife to open a bank account in the child's name and directed the husband to deposit Rs.6,000 in it by the second day of every month.

The Court made the consequence of default clear, stating that it “will be treated as a contempt of Court.”

At the same time, the Court did not compel the adult husband to return to his wife. It recorded that he did not want to reside with the petitioner and ultimately observed that “The corpus is free to live his life as per his own wishes, subject to the law of the land.”

The husband was directed to furnish a personal bond of Rs.1 lakh with one surety of the same amount and to remain available to the Investigating Officer whenever summoned. The police was given liberty either to continue the investigation or close it.

The wife was also granted liberty to pursue appropriate statutory matrimonial remedies, including maintenance available under civil law.

The High Court ultimately dismissed the habeas corpus petition and directed that after furnishing the required bond and surety, the husband be allowed to go to a place of his choice.

EXPLANATORY TABLE OF LAWS AND SECTIONS

CASE DETAILS

KEY TAKEAWAYS

• Bigamy allegation can start before saptapadi is proved- Accusation opens the door; proof still has to come later.
• An allegation is not a conviction- a man cannot be treated as guilty merely because bigamy is alleged.
• Marriage is not ownership of a husband- the court cannot force an adult man to live with his wife.
• A father must maintain his child-Responsibility stays, even when the marriage breaks down.
• Men have personal liberty too-Legal liability can be enforced, but a husband’s freedom cannot simply be switched off.