Second Wife Unaware Of Husband's First Marriage Can't Be Prosecuted For Cruelty, Bigamy: Madras High Court

Justice N Ramesh held that the provision is confined to a person who is related to the husband by blood, marriage or adoption. The court held that the second wife, who was unaware of the husband's existing first marriage, would not be a husband's relative. The court added that in such cases, both the women were deceived by the husband and are not accused and victim.

“Section 85 of the BNS (corresponding to Section 498A IPC) punishes cruelty inflicted on a woman by her "husband or relative of the husband". The provision is not one of general application: it is confined, by its own terms, to the husband and to persons who stand in the relationship of a relative to the husband, ordinarily by blood, marriage or adoption. The Calcutta High Court in SAGARI HEMBRAM v. STATE OF WEST BENGAL AND ANR., (2024 SCC ONLINE CAL 10278) quashed proceedings under Sections 498A, 494, 406 and 506 IPC against a second wife on the ground that the offence under Section 494 IPC is applicable only to the person who has married a second time during the subsistence of a valid marriage, and not to the person with whom that marriage is contracted. The same reasoning applies with equal force to Section 85 of the BNS,” the court noted.

The court noted that the offence of bigamy under Section 82 of BNS (Section 494 and 495 of IPC) punished a person who entered into a marriage during the subsistence of an earlier marriage where the spouse was living. The court also noted that the provision enhances the punishment if the offender had concealed the fact of the former marriage from the person with whom the subsequent marriage was contracted.

The court thus observed that, on a plain reading of the section, only the spouse who had married subsequently can be prosecuted for bigamy and the second spouse could not be roped in without any material showing knowledge or participation.

"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," the court said.

The court was hearing a petition filed by a woman seeking anticipatory bail in case of her arrest with respect to a case registered by the All Women Police Station for offences under Section 82, 85, 49, 296(b) and 351(2) of the BNS. The case was registered based on a complaint by the husband's first wife.

While seeking anticipatory bail, the woman submitted that at the time of marriage, she had no knowledge that the husband was already married and the fact was concealed from her. It was submitted that if anything, she was deceived by the concealment and was not a participant in the offence, and she had been falsely implicated in the case.

In the present case, the court noted that since the petitioner was unaware of the first marriage, she was not an offender under Section 82(1) of the BNS. The court added that the custodial interrogation of the petitioner for Section 82(2) of the BNS was not necessary since the plea of want of knowledge was a matter for investigation.

With respect to the case for cruelty, the court noted that the petitioner would not come within the purview of a relative of the husband and she was equally deceived by the husband as she was not made aware of the existing marriage.

Thus, noting that the petitioner has made out a case for grant of anticipatory bail, the court was inclined to allow the plea with some conditions.

Counsel for Petitioners: Mr. S. Parthibarajan

Counsel for Respondent: Mr. R. Rajasekaran Government Advocate (Crl.Side)

Case Title: Rajalakshmi v The State

Citation: 2026 LiveLaw (Mad) 445

Case No: CRL OP No 22231 of 2026