Woman unaware of husband’s first marriage not bigamy offender: Madras High Court

The court was dealing with an anticipatory bail plea of a woman who alleged that she had no knowledge when she married her husband that he already had a subsisting marriage.

The Madras High Court recently granted anticipatory bail to a woman accused in a bigamy-related case, observing that a woman who marries a man without knowing that his earlier marriage is subsisting cannot be prosecuted for the bigamy offence.

Justice N Ramesh passed the order on a plea filed by a woman who sought pre-arrest bail after a case was registered against her on a complaint filed by her husband’s first wife.

“On the plain language of the provision (offence of bigamy), 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 on August 28.

Justice N Ramesh granted anticipatory bail to the woman.

According to the provisions of the Bharatiya Nyaya Sanhita, it is a criminal offence for any person with a living spouse to marry again if that subsequent marriage is legally void due to the ongoing marriage. Anyone committing this offence faces a penalty of imprisonment for up to seven years along with a fine. The punishment increases in severity if the offender conceals the existence of the former marriage from the new partner, in which case the term of imprisonment can extend up to ten years in addition to a fine.

Why court granted relief to the woman?

The petitioner had told the court that she had no knowledge when she married her husband that he already had a subsisting marriage, claiming that the fact had been concealed from her. She argued that she was herself deceived rather than a participant in any offence.

After examining the relevant section, the court found that the offender is the person who already has a living spouse. It added that a person who is herself unmarried and marries such a person, without knowledge of the subsisting marriage, does not thereby become an offender.

The court, however, clarified that whether she was actually unaware of her husband’s existing marriage would remain a matter for investigation and, if necessary, trial. At the anticipatory-bail stage, the prosecution had not placed material showing that she knew about the subsisting marriage, the court said.

It noted that power to grant anticipatory bail must be exercised considering the nature and gravity of the accusation, the role attributed to the applicant, the possibility of the applicant fleeing from justice or tampering with evidence, and the need, if any, for custodial interrogation.

Considering these aspects, the court observed that the core allegation of bigamy is to be directed at the person who already has a subsisting marriage, that is the husband in this case, and not at the petitioner due to her defence of lack of knowledge.

The court stressed that its observations were limited to the prima facie assessment required for anticipatory bail and would not amount to a final finding on the prosecution case, the validity of either marriage or the applicability of the offences invoked. The investigation against the husband and the other accused was directed to proceed independently.

The court therefore allowed the petition and granted anticipatory bail to the petitioner .