Second Wife Cannot Be Held Liable For Bigamy & Cruelty To First Wife? Madras High Court Answers

Can a woman be prosecuted for bigamy and matrimonial cruelty when she claims the husband concealed his existing marriage from her? The Madras High Court examined who can actually be prosecuted under Sections 82 and 85 of the BNS and granted the second woman anticipatory bail.

TAMIL NADU: The Madras High Court has granted anticipatory bail to a woman arrayed as Accused No.2 in a matrimonial criminal case involving allegations under Sections 82, 85, 49, 296(b) and 351(2) of the Bharatiya Nyaya Sanhita (BNS). The Court examined whether a woman who claims she was unaware that the man she married already had a subsisting marriage could herself be prosecuted for bigamy and cruelty.

The case arose from Crime No.74 of 2026 registered by the All Women Police Station, Panruti, Cuddalore District. Petitioner Rajalakshmi was arrayed as A2. She said that when she married A1 Mayakrishnan, she did not know he was already married to the de facto complainant. According to her, the existing marriage had been concealed from her and she was herself deceived rather than being a participant in any offence. She also claimed that she had been falsely implicated in what was essentially a matrimonial dispute between Mayakrishnan and the complainant.

Justice N. Ramesh first examined Section 82 BNS, which deals with marrying again during the lifetime of a husband or wife. The Court noted that the provision substantially reproduces the earlier Sections 494 and 495 IPC. It found that the primary offender contemplated by Section 82 is the person who already has a living spouse and contracts another marriage while the first marriage continues.

The Court observed that

“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.”

Referring to Thimmappa v. Bharathi, the Court noted that only the spouse who marries again while the earlier marriage continues can be prosecuted for the substantive bigamy offence, while the second spouse or relatives cannot simply be brought into the case without material showing knowledge and participation. The Court also referred to Dr. Manju Sinha v. Smt. Pyari Dadsena, where similar reasoning was applied under Section 494 IPC.

Applying this principle, the High Court found that Rajalakshmi was, prima facie, not the person contemplated as an offender under Section 82(1) BNS if her claim of having no knowledge of the first marriage was correct. The Court clarified that whether she actually lacked such knowledge would still have to be examined during investigation and, if required, trial. However, no material had been placed at the bail stage showing that she knew about the subsisting marriage.

The High Court then examined Section 85 BNS, the successor to Section 498A IPC. It noted that the provision punishes cruelty to a woman by her “husband or relative of the husband” and is not a general penal provision applicable to everyone connected with a matrimonial dispute.

On the petitioner’s version, if she entered the marriage believing herself to be Mayakrishnan’s lawful wife because his existing marriage had been concealed from her, she could not automatically become a “relative of the husband” of the first wife for the purpose of Section 85.

In a significant observation, the Court said that “She and the de facto complainant occupy, in 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.”

The Court also referred to the Calcutta High Court decision in Ajay Kumar v. State of West Bengal, concerning Sections 82(2) and 85 BNS. It noted the view that an offence under Section 82(2) BNS, read with Section 219 BNSS, is non-cognizable and must proceed through a complaint case rather than being initiated as a police case. The Madras High Court, however, left that legal issue open for consideration at the appropriate stage.

On the question of arrest, the Court relied on Arnesh Kumar v. State of Bihar, where the Supreme Court cautioned against automatic or mechanical arrests in matrimonial offences and required the necessity of arrest to be objectively justified.

The High Court found at this stage that the core allegation of bigamy was directed at Mayakrishnan, who allegedly already had a subsisting marriage, while the cruelty provision was also prima facie not sustainable against Rajalakshmi as she had not been shown to be a “relative of the husband”.

Importantly, the Court clarified that its observations were only for deciding anticipatory bail. They were not final findings on the prosecution against Mayakrishnan or the other accused, nor did the order finally determine the validity of either marriage or the applicability of the offences invoked. The investigation against the other accused was directed to continue independently.

Accordingly, the Madras High Court granted Rajalakshmi anticipatory bail. She was directed to execute a bond of Rs.25,000 with two sureties and comply with other conditions, including reporting before the respondent police daily at 10.30 am for four weeks.

EXPLANATORY TABLE OF LAWS AND SECTIONS

CASE DETAILS

KEY TAKEAWAYS

• Second Wife Gets Legal Protection: Madras HC found bigamy and cruelty charges prima facie unsustainable against her on her claim of no knowledge of the first marriage.
• Bigamy Liability Has Limits: Section 82 BNS primarily targets the person who marries again while an earlier marriage subsists.
• Cruelty Law Cannot Cover Everyone: The second wife was prima facie not a “relative of the husband” under Section 85 BNS.
• Husband Gets No Benefit From Her Bail: The Court specifically kept the investigation against the husband and other accused unaffected.
• The Standard Must Apply To Men Too: If relationship alone cannot create criminal liability, husbands and their relatives should equally not be mechanically roped into matrimonial cases without supporting material.