On the plain language of the provision, the Court held, the offender is the person who already has a living spouse. A woman who is herself unmarried and marries such a person without knowing of the earlier marriage does not thereby become an offender. Whether her plea of ignorance is true remains for investigation and trial.
Chennai: The Madras High Court has granted anticipatory bail to a woman arrayed as the second accused in a bigamy and cruelty case, holding that liability under Section 82 of the Bharatiya Nyaya Sanhita, 2023 attaches to the spouse who marries again during a subsisting marriage, and not to the person with whom that second marriage is contracted [Rajalakshmi v. The State].
Justice N. Ramesh allowed the petition under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, subject to conditions, while expressly confining the order to the prima facie assessment required at the anticipatory bail stage.
The background
The FIR was registered in July 2026 at the All Women Police Station, Panruti, in Cuddalore district, in respect of an occurrence said to have taken place the previous month. It invokes Sections 82, 85, 49, 296(b) and 351(2) of the BNS, covering bigamy, cruelty by a husband or his relative, abetment, obscene acts and criminal intimidation.
The complaint was made by the wife of the first accused, who alleged that the petitioner had entered into a marriage with him. The petitioner’s case is that she did not know at the time of that marriage that he already had a subsisting marriage, that the fact was concealed from her, that she is if anything a person deceived by that concealment rather than a participant in any offence, and that she has been drawn into a matrimonial dispute that is really between the complainant and the first accused.
Who the bigamy provision is aimed at
Setting out Section 82 in full, the Court noted that it reproduces in substance the former Sections 494 and 495 of the Indian Penal Code. Sub-section (1) punishes a person who, having a spouse living, marries again during the subsistence of that marriage. Sub-section (2) provides a higher punishment where the offender concealed the earlier marriage from the person with whom the second marriage was contracted.
From that structure the Court drew the conclusion at the centre of the order:
“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 recorded that this reading is settled under the predecessor provision and carries forward into the new Sanhita, citing a decision of the Karnataka High Court holding that only the spouse who marries again can be prosecuted and that relatives or the second spouse cannot be roped in absent material showing knowledge and participation, and a decision of the Chhattisgarh High Court holding that a person who was single at the time of the marriage cannot be prosecuted under the old Section 494.
Crucially, the Court did not accept the petitioner’s account as established. It held that whether her plea of want of knowledge is true is a matter for investigation and, if necessary, trial, but that in the absence of any material placed by the prosecution to show she knew of the subsisting marriage, the case against her under Section 82 did not at this stage disclose the gravity that would justify custodial interrogation.
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The cruelty provision and who counts as a relative
Turning to Section 85, the successor to Section 498A of the IPC, the Court held that the provision is not one of general application. By its own terms it reaches the husband and persons standing in the relationship of a relative to the husband, ordinarily by blood, marriage or adoption.
Relying on a decision of the Calcutta High Court quashing proceedings under Sections 498A, 494, 406 and 506 against a second wife, the Court held that the same reasoning applies to Section 85. A woman who entered an alliance believing herself to be a wife, while in fact being deceived about a subsisting earlier marriage, does not thereby become a relative of the husband of the complainant. It then framed the relationship between the two women in terms likely to be widely quoted:
“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 qualification in that sentence, that this is so on the petitioner’s case, is doing deliberate work and should not be dropped in the retelling.
A question left open
The Court also noticed, without resting its decision on the point, a ruling of the Calcutta High Court at its Jalpaiguri Circuit Bench in a case involving the same combination of provisions, which held that under Section 219 of the BNSS an offence under Section 82(2) is non-cognizable, cannot be set in motion by a police case, and must proceed as a complaint case.
If the Section 82 allegation in the present crime rests on the concealment limb, the Court observed, that reasoning would bear on the maintainability of the police case to that extent. It expressly left the question open for consideration at the appropriate stage, noting it only as reinforcing the conclusion that custodial interrogation was not shown to be necessary.
The order and its limits
Applying the settled considerations governing anticipatory bail, and recalling the Supreme Court’s caution in Arnesh Kumar v. State of Bihar against automatic or mechanical arrest in matrimonial offences carrying sentences of under seven years, the Court held that a case for anticipatory bail was made out.
The petitioner was directed to be released on bail in the event of arrest, on executing a bond of Rs 25,000 with two sureties before the Judicial Magistrate concerned within fifteen days of the order copy being made ready, failing which the order stands automatically cancelled. She is also required to report to the police daily at 10.30 am for four weeks.
The Court was careful about what it had not decided. Its observations are confined to the prima facie evaluation required at this stage, are not a finding on the merits of the prosecution case against the first accused or the other accused, and are not a determination of the validity of either marriage or of the applicability of any of the sections invoked. It directed in terms that nothing in the order shall enure to the benefit of the co-accused and that the investigation against them proceeds uninfluenced by it.
Why it matters
The pattern the order addresses is a familiar one. A complaint of bigamy is filed, and the second woman is arrayed alongside the husband, often with cruelty and other sections added. Once she is an accused, the threat of arrest does the work that the eventual trial may never do, because these cases frequently end in compromise or acquittal long after the coercive stage has passed.
What the Court has done is insist that the statutory text be read before the array of accused is settled. Section 82 identifies its offender by a status, that of a person with a living spouse. Section 85 identifies its offender by a relationship, that of husband or relative of the husband. Neither description fits a woman whose only connection to the case is that she married the man, unless the prosecution places material showing she knew. On this record, none was placed.
The observation on Section 82(2) is the part practitioners will watch. If the concealment limb is non-cognizable and can only be set in motion as a complaint case, a significant number of bigamy FIRs registered by the police may be vulnerable on that ground alone. The Court did not decide it, and flagged it as no more than a supporting consideration, but having noticed it in a reported order it is now available to be argued.
One limitation is worth keeping in view. The order turns entirely on the petitioner’s own account of what she knew, tested against the absence of contrary material at an early stage of investigation. If the investigation produces evidence that she was aware of the earlier marriage, the reasoning that protects her here does not survive. The complainant’s allegations remain to be investigated, and the case against the first accused is untouched.
Case Title: Rajalakshmi v. The State, represented by the Station House Officer, All Women Police Station, Panruti Taluk, Cuddalore District [Crl. O.P. No. 22231 of 2026]
Bench: Justice N. Ramesh, High Court of Judicature at Madras
Date of Order: August 28, 2026 | Uploaded: September 8, 2026
Appearances: Advocate S. Parthibarajan for the petitioner. Government Advocate (Criminal Side) R. Rajasekaran for the State.
Status: Anticipatory bail granted on conditions. Observations confined to the prima facie stage. Investigation continues against the co-accused.