Second wife unaware of husband's existing marriage to first wife can't face bigamy charge: Madras HC

The Madras High Court recently observed that a woman who marries a man without knowing that his earlier marriage is still subsisting cannot be prosecuted for bigamy under Section 82 of the Bharatiya Nyaya Sanhita (BNS) [Rajalakshmi v. State].

Justice N Ramesh made the observation while granting anticipatory bail to a woman named Rajalakshmi, who was named as the second accused in a bigamy case.

“On the plain language of the (provision punishing 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 observed.

Therefore, the Court expressed reservations about whether the bigamy case could stand against Rajalakshmi at all. This was one of the factors that led the Court to grant her anticipatory bail. It, however, clarified that these are prima facie observations made to examine whether anticipatory bail should be given, and not comments on the merits of the allegations.

"Nothing in this order shall enure to the benefit of Mayakrishnan (the first accused) or the other co- accused, and the investigation against them shall proceed uninfluenced by anything stated herein," the Court said.

The case was registered on a complaint by the first wife (complainant) of a man named Mayakrishnan. She alleged that Rajalakshmi had married Mayakrishnan while his marriage with the complainant was still subsisting.

Rajalakshmi maintained that Mayakrishnan had concealed his first marriage from her. She argued that she was herself a victim of his deception and had been unnecessarily implicated in a matrimonial dispute between him and the complainant.

The Court noted that Section 82(1) of the BNS, which replaced Section 494 of the Indian Penal Code, punishes a person who marries again while having a living spouse.

The Court clarified that whether Rajalakshmi was genuinely unaware of Mayakrishnan's first marriage was a question to be examined during the investigation and, if necessary, at trial. However, the prosecution had not produced any material at the anticipatory bail stage to show that she knew of Mayakrishnan's subsisting first marriage.

The Court also found that another charge cited by the police under Section 85 of the BNS, which punishes cruelty by a husband or his relatives, was prima facie inapplicable to Rajalakshmi.

It reasoned that a second wife who was deceived about the man’s existing marriage would not become a “relative of the husband” of the first wife merely because she underwent a marriage ceremony with him.

“She and the de facto complainant occupy, on 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 said.

The Court further referred to a March 2026 ruling of the Calcutta High Court, which held that an offence under Section 82(2) of the BNS involving concealment of an earlier marriage is non-cognisable and cannot be initiated through a police case. It must instead proceed as a complaint case under Section 219 of the Bharatiya Nagarik Suraksha Sanhita, the Court noted.

Justice Ramesh, however, refrained from deciding on whether the present criminal case could survive despite not following the above procedure.

"This aspect is left open for such consideration as may be appropriate at the proper stage and is noted here only as a factor reinforcing the conclusion that custodial interrogation of the petitioner is not shown to be necessary," it said.

The Court proceeded to grant Rajalakshmi anticipatory bail on certain conditions.

The petitioner (Rajalakshmi) was represented by advocate S Parthibarajan.

Government advocate R Rajasekaran appeared for the State.

[Read Judgment]