Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Bigamy and Concealment of First Marriage (S. 82 BNS)
The provisions of Section 82 of the Bharatiya Nyaya Sanhita, 2023 (BNS) is also called as an offence of Bigamy. This section applies to Hindus, Christians, Paris whether male or female but in case of Muslims, it applies only to females as under the Muslim personal law, males are allowed in bigamy but not women. The second marriage to someone who is already legally married is void and may be annulled, while there is no effect on the first marriage. When bigamy is committed knowingly, the person is guilty of a crime. The Section aims to uphold the sanctity of marriage and protect individuals—particularly spouses—from deception and exploitation. In a society where marriage is not only a legal contract but also a deeply rooted social institution, bigamy is considered a serious violation of both legal and moral norms. This article explores the legal provisions, essential ingredients, exceptions, and judicial interpretations related to the offence of bigamy under Section 82 BNS, while also examining its intersection with personal laws and contemporary societal realities.
Bigamy
Section 82 BNS:
Marrying Again During Lifetime of Husband or Wife:
(1) Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception:
This sub-section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
(2) Whoever commits the offence under sub-section (1) having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Offence of Bigamy and Punishment for it:
Section 82(1), defines the offence of bigamy and provides for the punishment for bigamy.
Essential Ingredients of Section 82(1) BNS:
- The first marriage should’ve occurred according to the law, that is, it must be legal in nature;
- The second marriage should have taken place;
- The first marriage should still be existing;
- The spouse must be alive; and
- Both marriages should be valid.
Both marriages, the first and the second, should be legally recognized and comply with the requirements set by the law. Thus to establish the offence of bigamy it must first be proved that both the marriages have been solemnized after due observance of rites and ceremonies. Various personal and customary laws necessitate the conducting of certain ceremonies and rites in order to constitute a valid marriage. What ceremonies are necessary depends upon the customs of the community to which the parties belong.
Exceptions:
- Any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction
- Where the spouse has been continually absent for a period of 7 years and not heard to be alive within such period
Burden to prove both the marriages as ingredients of the offence of bigamy is on the prosecution and both the marriages should be a valid marriage.
Punishment:
Imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Nature of Offence:
Non-cognizable, bailable, compoundable, triable by Magistrate of First Class.
Judicial Analysis:
In Sri. T. Manjanna v State of Karnataka, CRL. P 8940/2016 case, the petitioner sought to quash the FIR filed against him under Section 494 of the IPC (S. 82(1) BNS). The complainant, who was the petitioner’s legally married wife, alleged that he had contracted a second marriage during the pendency of their divorce proceedings. However, the court found that there was no evidence supporting the accusation of a second marriage.
In Pashaura Singh v state of Punjab, AIR 2010 SC 922 case, the Court held that, the first marriage should be subsisting at the time of second marriage and should be validly contracted one. If the first marriage is not a valid marriage, the second marriage does not amount to bigamy.
In Subir Kumar Kundu v. State of W.B., 1992 CriLJ 1502 case, the Court observed that Section 494 (S. 82(1) BNS) opens with the words “Whoever, having a husband or wife living, marries”. The expression “whoever marries” has been interpreted to mean “whoever marries validly” or “whoever marries and whose marriage is a valid one”. Therefore, the expression “marriage” would mean marriage valid in form though not in law.
In Kanwal Ram v. Himachal Pradesh Administration, AIR 1966 SC 614 case, the Court held that merely following certain ceremonies with the intention of going through marriage is not sufficient.
In Gopal Lal v. State of Rajasthan, AIR 1979 SC 713 case, the Court held that the vital features of the ceremonies must be proved.
In Baburao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564 case, It was established that two essential ceremonies were not performed at the time of second marriage, and neither there was any evidence on record to establish that performing these ceremonies has been abrogated by the custom prevalent in their community. The Court held that the marriage between the appellant and the alleged second wife was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu Law. The Supreme Court observed that the marriage between the appellant and Kamlabai does not fall within the expression ‘solemnized marriage’ occurring in Section 17 of the Act and consequently does not come within the mischief of Section 494 of I.P.C (S. 82(1) BNS) even though the second marriage was contracted during the subsistence of his first marriage with the respondent.
In Shafiullah v. Emperor, AIR 1934 All 589 case, the Court held that in a prosecution for abetment of bigamy the prosecution has to first prove that the person who is alleged to have committed bigamy was married lawfully once and has gone through a second valid marriage ceremony and then has to prove that the person alleged to have abetted the bigamy knew, when he arranged or assisted at the second marriage, that the person who was remarried had contracted a valid first marriage and that husband or wife of the first marriage was still living.
In Sarla Mudgal v. Union of India, AIR 1995 SC 1531, and in Lily Thomas v. Union of India, (2000) 6 SCC 224 cases,the apex court held that the second marriage of a converted Muslim (originally a Hindu) man solemnized under Muslim Law would be counted as a second marriage for the purpose of the offence of bigamy and such person would be liable to be punished. Thus the message was strongly expressed by the Supreme Court that it would not permit the misuse of personal laws for illegitimate purposes.
In Gopal Lal v. State of Rajasthan, AIR 1979 SC 713 case, where the accused have contracted both the marriages in accordance to the costumes and ceremonies of their respective personal law. In India, personal law governs marriage therefore section 11 of the Hindu Marriage Act has a provision to if a marriage is not performed as per the conditions laid in section 5(i) the marriage is voidable at the option of the other party. Therefore, until a competent court declares the marriage null and void the woman from the second marriage holds the title of wife and can maintain the complaint against her husband under Section 494 IPC (S. 82(1) BNS).
In Shaji V Gopinath, AIR 1995 Mad 161 case,the court said that both the traditional ceremonial marriage and registration of the said marriage has to be separate and independent, and registering a marriage and not marrying in accordance with the legal provision will not make it a valid marriage.
In Mousmi Chakraborty vs Subrata Ghua Roy, 95 CWN 380 case, the court said that registration of marriage is not a necessary proof of solemnization of marriage. As the registration of marriage does not validate a marriage and no registration does not invalidate it. Therefore, the validity of a marriage is not attributed to the registration alone.
Offence of Concealment of the First Marriage:
Section 82(2) BNS:
Essential Ingredients of Section 82(2) BNS:
- The first marriage is a valid marriage according to the customs and law of the land;
- The second marriage was contracted with concealing the fact of the first marriage;
- The spouse from the first marriage is still alive and not divorced; and
- Second marriage must be performed according to the valid customs of either party in the marriage.
For this section the accused has committed an offence of bigamy (as given under S. 82(1) BNS) and the accused concealed the subsistence of former marriage from the person with whom the subsequent marriage was entered into.
Punishment:
Imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Nature of Offence:
Non-cognizable, bailable, non-compoundable, triable by Magistrate of First Class
Judicial Analysis:
In Subhash Babu v State of Andhra Pradesh, AIR 2011 SC 3031 case, the interpretation of the term “wife” and “aggrieved person” under Section 495 of the Indian Penal Code (S. 82(2) BNS) was broadened. The Court looked beyond the technical explanation of the section and focused on the objective of the law in applying it. The Court recognized that the second wife should be considered a lawful wife because she was deceived by the concealment of her husband’s first living spouse. The Court deemed this act as the most severe form of fraud recognized by the law and emphasized the need for strict punishment. It was established that a second wife can file a complaint against her husband under Section 495 IPC (S. 82(2) BNS), and such a complaint is maintainable.
Conclusion:
Sections 82 of the Bharatiya Nyaya Sanhita, 2023 play a crucial role in safeguarding the institution of marriage by criminalizing bigamy and penalizing deceit within marital relationships. While Section 82(1) BNS addresses the act of contracting a second marriage during the subsistence of a valid first marriage, Section 82(2) BNS goes a step further by imposing stricter punishment where such marriage is accompanied by concealment of the former marriage. Together, these provisions aim not only to deter individuals from entering unlawful marital unions but also to protect unsuspecting spouses from fraud and emotional harm.
However, the effectiveness of these provisions is often shaped by the complexities of personal laws, evidentiary requirements, and evolving social realities. Courts have consistently emphasized the need for strict proof of valid marriages and proper solemnization, which, while ensuring fairness, can sometimes make prosecution challenging. Despite these hurdles, the law continues to serve as an important tool in promoting marital fidelity and legal accountability.
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