When a second marriage is a crime in India

Bigamy is punished under Section 82 of the Bharatiya Nyaya Sanhita, 2023 [Section 494 of the Indian Penal Code, 1860] with imprisonment of up to seven years and fine. Concealment of the first marriage from the second spouse is an aggravated form under Section 83 BNS [Section 495 IPC] carrying ten years. The substantive prohibition is reinforced by Section 17 of the Hindu Marriage Act, 1955, Section 4(a) of the Special Marriage Act, 1954, and the corresponding bars in the Indian Christian Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1936. The Supreme Court in Bhaurao Shankar Lokhande v State of Maharashtra, AIR 1965 SC 1564 held that the second marriage must be performed with all the essential ceremonies of the applicable personal law for the section to apply — a proof threshold that has made successful prosecutions rare. Sarla Mudgal v Union of India, (1995) 3 SCC 635 and Lily Thomas v Union of India, (2000) 6 SCC 224 closed the conversion-to-Islam route. This guide traces the statutory architecture, the proof requirements, the procedural execution under Section 218 of the BNSS [Section 198 CrPC], and the civil remedies that stack alongside the prosecution.

Bigamy is among the older offences on the Indian statute book. Section 494 of the Indian Penal Code, 1860 — re-enacted without substantive change as Section 82 of the Bharatiya Nyaya Sanhita, 2023 — punishes the act of marrying again during the lifetime of a husband or wife in any case in which the second marriage is void by reason of the first marriage subsisting. The penalty is imprisonment of up to seven years, with fine. The substantive prohibition is duplicated in the personal-law statutes — Section 17 of the Hindu Marriage Act, 1955 (reproducing the IPC penalty in the same words and reinforcing Section 5(i) of the HMA, which conditions the validity of a Hindu marriage on neither party having a spouse living at the time of the marriage); Section 4(a) of the Special Marriage Act, 1954 (the same monogamy bar for civil marriages); Section 60(2) of the Indian Christian Marriage Act, 1872; Section 5 of the Parsi Marriage and Divorce Act, 1936. The statutory architecture is uniform — the marriage entered into during the subsistence of a prior valid marriage is void in personal law and bigamous in penal law. The doctrinal complication is that the proof threshold for a conviction under the penal provision is considerably stiffer than the proof threshold for civil consequences in the personal-law forum. The Supreme Court in Bhaurao Shankar Lokhande v State of Maharashtra, AIR 1965 SC 1564 held — and the line has held since — that the prosecution must prove that the second marriage was performed by going through all the essential ceremonies of the applicable personal law. The asymmetry between civil status and criminal liability is the single most important feature of the bigamy framework.

The statutory architecture — Section 82 BNS and the personal-law bars

Section 82 of the Bharatiya Nyaya Sanhita, 2023 punishes any person who, having a husband or wife living, marries in any case in which the marriage is void by reason of its taking place during the life of such husband or wife — with imprisonment of either description for a term up to seven years and fine. The provision carries an Exception — the section does not extend to a person whose marriage with the prior spouse has been declared void by a Court of competent jurisdiction, nor to a person whose prior spouse has been continually absent for a space of seven years without being heard of as alive (the so-called Enoch Arden defence), subject to the further requirement that the party contracting the second marriage informs the second spouse of the real state of facts before the second marriage.

Section 83 of the BNS [Section 495 IPC] is the aggravated form — the same offence committed with concealment of the former marriage from the person with whom the subsequent marriage is contracted — punishable with imprisonment of up to ten years. Section 84 of the BNS [Section 496 IPC] covers the fraudulently performed marriage ceremony — going through a ceremony with dishonest or fraudulent intention while knowing that the ceremony does not amount to a lawful marriage — punishable with imprisonment of up to seven years. Section 85 of the BNS [Section 498-A IPC] — cruelty by husband or his relatives — frequently stacks alongside a bigamy prosecution where the cruelty is alleged to have been the means by which the first wife was forced to consent to or to acquiesce in the second marriage.

The personal-law layer reinforces the penal layer. Section 17 of the Hindu Marriage Act, 1955 declares that any marriage between two Hindus solemnised after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that Sections 494 and 495 of the IPC (now Sections 82 and 83 of the BNS) apply accordingly. Section 5(i) of the HMA conditions the validity of a Hindu marriage on neither party having a spouse living at the time of the marriage; Section 11 declares such a marriage void; Section 12 covers voidable marriages on grounds that do not include bigamy. Section 4(a) of the Special Marriage Act, 1954 prohibits a marriage under the Act where either party has a spouse living; Section 24(1)(i) declares such a marriage null and void. The Indian Christian Marriage Act, 1872, Section 60(2), and the Parsi Marriage and Divorce Act, 1936, Section 5, contain corresponding monogamy bars. The Muslim personal law permits a Muslim male to marry up to four wives simultaneously (subject to Quranic conditions); a Muslim female who marries during the subsistence of a prior marriage commits bigamy.

The combined effect is that the second marriage of a person already validly married is, in personal law, void ab initio (in each system except Muslim male polygamy); and the act of contracting such a second marriage is, in penal law, an offence under Section 82 of the BNS — subject to the proof requirements that Bhaurao Lokhande imposed.

The Bhaurao Lokhande proof requirement — essential ceremonies

The doctrinal anchor of the bigamy framework is Bhaurao Shankar Lokhande v State of Maharashtra, AIR 1965 SC 1564. The appellant had married the complainant in 1956 by Hindu rites; in 1962 he went through a "gandharva" form of marriage with another woman. The trial Court convicted him under Section 494 of the IPC; the High Court of Bombay affirmed. The Supreme Court (Justice Raghubar Dayal speaking for the Bench) set aside the conviction. The reasoning has shaped every bigamy prosecution since.

The Court began with the statutory text — Section 494 punishes one who "marries". The expression "marries", the Court held, must mean "marries validly" or "marries in a manner which would have produced a valid marriage but for the prior subsisting marriage". A loose form of cohabitation, however much it may resemble a marriage in social terms, is not a "marriage" within the section. The validity of the second marriage — for the purpose of the section — must be tested against the personal law applicable to the parties. For a Hindu marriage, Section 7 of the Hindu Marriage Act, 1955 recognises the customary rites and ceremonies of the parties; the essential ceremonies under most schools of Hindu law are saptapadi (the taking of seven steps by the bride and groom jointly before the sacred fire) and homam (the offering before the sacred fire). For a marriage solemnised in a form that does not include these essential ceremonies (or the recognised customary alternative for the community), there is no "marriage" within the section even though the parties may have cohabited and held themselves out as spouses. The "gandharva" form on the facts of Bhaurao Lokhande did not include saptapadi or homam and the appellant was therefore not guilty of the offence.

The line was reinforced in Kanwal Ram v Himachal Pradesh Administration, AIR 1966 SC 614 — admission of the second marriage by the accused, without proof of the actual performance of the essential ceremonies, is not sufficient for a conviction under Section 494; the prosecution must prove the ceremonies by independent evidence. Priya Bala Ghosh v Suresh Chandra Ghosh, AIR 1971 SC 1153 applied the same standard. Gopal Lal v State of Rajasthan, AIR 1979 SC 713 affirmed the proposition that a marriage performed with all the essential ceremonies of the personal law is a "marriage" within Section 494 even though it is void under Section 17 of the HMA — the void status under personal law does not displace the criminal liability where the ceremonies are made out.

The doctrine was revisited in S. Nagalingam v Sivagami, (2001) 7 SCC 487. The community of the parties followed customary rites in which saptapadi was not an essential ceremony; Section 7-A of the Hindu Marriage Act, 1955 (as inserted by the Tamil Nadu Amendment) recognised suyamariyathai and seerthiruththa marriages without the traditional ceremonies. The Court held that the performance of the ceremonies prevalent in the community — and not the orthodox saptapadi — was the operative test; on the facts, the parties had performed the customary ceremonies of their community and a conviction under Section 494 was sustained. S. Nagalingam is the principal modern qualification of the Bhaurao Lokhande rule — the prosecution need not prove saptapadi where the community's customary law does not require it, but it must prove the corresponding essential ceremonies of that customary law.

The combined effect of the line — Bhaurao Lokhande, Kanwal Ram, Priya Bala Ghosh, Gopal Lal, and S. Nagalingam — is that a successful bigamy prosecution requires the prosecution to lead positive evidence of the performance of the essential ceremonies of the applicable personal law (or of the customary law of the community) at the time of the second marriage. The mere production of a marriage certificate, the registration entry under the Special Marriage Act, 1954 or under the State Marriage Registration Rules, or the admission of the accused, is not sufficient. The asymmetry between the proof of marriage required for civil purposes (which is satisfied by the presumption from cohabitation under Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 [Section 114 IEA]) and the proof of marriage required for the bigamy section (which is not so satisfied — the presumption is expressly displaced by the proviso to Section 50 of the IEA / Section 71 BSA in prosecutions under the bigamy provisions) is the structural feature of the framework that has made the offence under-prosecuted.

Sarla Mudgal and Lily Thomas — conversion is not an escape

The single most important doctrinal extension of the bigamy framework is the line that runs through Sarla Mudgal v Union of India, (1995) 3 SCC 635 and Lily Thomas v Union of India, (2000) 6 SCC 224. The pattern in each was the same — a Hindu husband, married under the Hindu Marriage Act, 1955 with a subsisting first marriage, converted to Islam (where the male is permitted up to four wives) and contracted a second marriage during the subsistence of the first. The argument advanced was that the conversion dissolved the first marriage (because the HMA, by force of Section 1 read with Section 5, applies to "two Hindus") and that the second marriage, contracted under Muslim personal law as a Muslim, was not bigamous.

The Supreme Court in Sarla Mudgal (Kuldip Singh and R.M. Sahai JJ.) rejected the argument on the substantive ground that the first marriage, solemnised under the HMA, can be dissolved only on the grounds and through the procedure provided in the HMA itself — conversion of one spouse to another religion is not an automatic dissolution. The first marriage therefore subsists notwithstanding the conversion, and the second marriage contracted during its subsistence is a bigamous marriage within Section 494 of the IPC. The judgment relied on the principle that a person who has invoked a statute cannot, by a unilateral change of personal-law status, evade the consequences that the statute attaches to the subsisting transaction.

The Court in Lily Thomas (S. Saghir Ahmad and R.P. Sethi JJ.) was asked to reconsider Sarla Mudgal on the ground that it had violated the religious-freedom protection under Article 25 — the convert's right to embrace Islam and to live under its personal-law rules. The Court affirmed Sarla Mudgal. The right to convert is protected by Article 25 but does not carry with it the right to contract a second marriage during the subsistence of an earlier marriage solemnised under a statute that prescribes monogamy. The conversion does not annul the prior marriage; the second marriage contracted during its subsistence is bigamous; the husband is liable under Section 494 of the IPC read with Section 17 of the HMA.

The combined effect is that the conversion route is closed. A Hindu husband cannot convert to Islam and thereafter contract a second marriage; a Muslim husband whose first marriage was contracted under the Special Marriage Act, 1954 cannot rely on his personal-law right to polygamy to avoid the monogamy bar in Section 4(a) of the SMA; a Christian or Parsi husband whose first marriage was governed by the respective personal-law statute is in the same position. The doctrine of Sarla Mudgal and Lily Thomas operates as a one-way ratchet — once a marriage has been solemnised under a monogamous regime, the regime governs the dissolution and bars a parallel marriage even after conversion.

Procedural execution — Section 218 BNSS and the locus rule

The procedural route for a bigamy prosecution is governed by Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [Section 198 of the CrPC, 1973]. The provision restricts the locus to file a complaint in respect of an offence under Chapter V of the BNS (the chapter that includes the bigamy provisions, corresponding to Chapter XX of the IPC). Sub-section (1) provides that no Court shall take cognizance of an offence punishable under Chapter V of the BNS except upon a complaint made by some person aggrieved by the offence. The "aggrieved person" in a bigamy case is, in the first instance, the spouse from the first marriage — the spouse whose marriage rights are being violated by the second marriage. The first proviso to sub-section (1) extends the right to make the complaint to the father, mother, brother, sister, son, or daughter of the aggrieved wife (with the leave of the Court), or to her father's or mother's brother or sister, or to any other person related to her by blood, marriage or adoption.

Section 218 also addresses the position of the second wife. The Supreme Court in A. Subhash Babu v State of Andhra Pradesh, (2011) 7 SCC 616 held that the second wife — the woman who has been duped into the second marriage by a husband whose first marriage is subsisting — is also an "aggrieved person" within Section 198(1) of the CrPC. The reasoning is that the second wife suffers an independent legal injury — the status of an illegitimate cohabitee — through the same act that injures the first wife. The Court read the section purposively to extend the locus to her. The second-wife locus has not been narrowed since.

The route of prosecution available to the aggrieved spouse is, at the option of the spouse, either a private complaint under Section 223 of the BNSS [Section 200 of the CrPC] directly before the Magistrate of First Class, or an FIR under Section 173 of the BNSS [Section 154 CrPC] followed by police investigation. The bigamy offence under Section 82 of the BNS is, in most States, non-cognizable and bailable by default — the Andhra Pradesh State Amendment of 1992 made it cognizable, non-bailable, and triable by the Magistrate of First Class within the State, but other States retain the default position. Where the offence is non-cognizable, a police investigation requires the order of a Magistrate under Section 175(2) of the BNSS [Section 155(2) CrPC]. The Supreme Court in Ushaben v Kishorbhai Chunilal Talpada, (2012) 6 SCC 353 held that where the complaint discloses both Section 498-A IPC (cognizable) and Section 494 (non-cognizable), the police may take cognizance of the entire complaint by virtue of Section 155(4) CrPC [Section 175(4) BNSS] — a procedural workaround that has expanded the FIR route in practice.

The jurisdiction is governed by Section 197 of the BNSS [Section 182(2) CrPC] — the offence may be tried by a Court within whose local jurisdiction the offence was committed, the offender last resided with the spouse from the first marriage, or the first wife has taken up permanent residence after the commission of the offence. The third limb — the residence of the aggrieved wife — is particularly significant in inter-State bigamy cases where the second marriage has been performed in a different State.

The limitation period for a Section 82 BNS offence is governed by Section 514 of the BNSS [Section 468 CrPC] — three years for an offence punishable with imprisonment of up to three years; thereafter, no specific limitation applies to the seven-year-imprisonment offence under Section 82, except the general principle of laches and the Court's discretion to take cognizance of a stale complaint. Section 519 of the BNSS [Section 473 CrPC] preserves the Court's power to take cognizance after the period of limitation in the interests of justice.

The proof landscape — what the prosecution must lead

The prosecution in a Section 82 BNS case must lead evidence on each of the four ingredients of the offence — (i) the existence of a prior valid marriage, (ii) the subsistence of that marriage at the time of the second marriage, (iii) the performance of a second marriage, and (iv) the second marriage being void by reason of the first marriage subsisting under the personal law applicable to the parties.

The first ingredient — the existence of the prior valid marriage — is the easier portion. Direct evidence of the first marriage ceremony (testimony of witnesses, photographs, video recordings, the marriage certificate under the State registration rules) is admissible. The presumption from cohabitation under Section 116 of the BSA, 2023 [Section 114 IEA] is available — the long cohabitation of the accused and the first spouse as husband and wife is sufficient to raise the presumption of marriage. The certificate of marriage under Section 13 of the Special Marriage Act, 1954 or the corresponding State rules is the easiest documentary proof. The first wife's testimony is admissible and sufficient; she is a competent witness and not an accomplice.

The second ingredient — the subsistence of the first marriage at the time of the second marriage — is the absence of a decree of divorce, annulment, or declaration of presumed death under the seven-year-absence exception. The proof is by negative — the accused must show, if he relies on a decree, the certified copy of the decree; the prosecution may shift the burden by leading the first spouse to depose that no decree of divorce was obtained. Where an ex-parte decree of divorce was obtained and later set aside, the position is governed by Krishna Gopal Divedi v Prabha Divedi, AIR 2002 SC 389 — a second marriage entered into while the ex-parte decree was in force is not bigamous, even if the decree is later set aside.

The third and fourth ingredients are the difficult portion — the proof of the second marriage with the essential ceremonies. The prosecution must lead the witnesses who attended the second marriage ceremony — the priest, the relatives present, the photographer or videographer where available. The Supreme Court in Bhaurao Lokhande emphasised that the witnesses must depose to the actual performance of the essential ceremonies (saptapadi, homam, or the customary equivalent under S. Nagalingam). The proviso to Section 71 of the BSA, 2023 [Section 50 IEA] expressly bars the opinion-of-special-means-of-knowledge route — the reception of the parties as husband and wife by relatives, however widespread, is not admissible to prove the second marriage in a prosecution under Sections 82 or 83 of the BNS [Sections 494 and 495 IPC]. The presumption from cohabitation is similarly displaced by the proviso. The result is that the prosecution must lead direct evidence of the ceremonies. The most successful prosecutions in recent reporting are those backed by video evidence of the second marriage ceremony (admitted through the certification procedure under Section 75 of the BSA, 2023 [Section 65B IEA]) — the digital recording of the saptapadi or the corresponding ceremony has become the operative gate.

Where the second marriage was performed under the Special Marriage Act, 1954 — a civil ceremony before the Marriage Officer — the proof is the certificate issued under Section 13 of that Act and the entry in the Marriage Officer's register. The civil ceremony, the Supreme Court has held, is the equivalent of the religious ceremonies for the purposes of Section 494 — the marriage is valid (or would have been valid but for the prior subsisting marriage) and the section applies. The position under the SMA route is therefore the easiest for the prosecution because the documentary proof is conclusive of the ceremony.

The civil-side remedies that stack alongside the prosecution

The aggrieved spouse from the first marriage can stack a bundle of civil-side remedies on the bigamy prosecution. First, a petition for a decree of nullity of the second marriage under Section 11 of the Hindu Marriage Act, 1955 — the decree is in rem and operates as a determination that the second marriage is void; the petition is filed by the first wife (or by the second wife, in her own right, on the same ground). Second, a petition for divorce from the first marriage under Section 13(1)(i) of the HMA on the ground that the husband has, after the solemnisation of the first marriage, had voluntary sexual intercourse with another person — the existence of the second marriage and the cohabitation thereunder is conclusive proof of the adultery ground. Third, maintenance pendente lite and a permanent alimony order under Sections 24 and 25 of the HMA; or, in the alternative, maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (entitling a Hindu wife to maintenance from her husband on grounds that include the husband's keeping a concubine in the matrimonial home or living with one habitually); or maintenance under Section 144 of the BNSS [Section 125 CrPC] (the summary route, available also to the duped second wife on the Badshah equity); or monetary relief under Section 20 of the PWDVA, 2005 (where the second marriage and the cohabitation thereunder amount to economic abuse or to the cessation of financial support to the first wife).

The civil-side remedies, taken together, are more accessible than the prosecution — the standard of proof for civil consequences is the preponderance of probabilities, and the strict-essential-ceremonies threshold of Bhaurao Lokhande does not apply. The first wife who wishes to leave the marriage can obtain a divorce, a maintenance order, and a custody order without ever invoking the bigamy section; the second wife who has been duped can obtain a declaration of nullity of her marriage (with the legitimacy of any children of the second marriage preserved under Section 16 of the HMA — see also Revanasiddappa v Mallikarjun, (2011) 11 SCC 1) and a maintenance order under the Badshah route. The bigamy prosecution is therefore best understood as a coercive tool that operates alongside, rather than in place of, the civil remedies.

The asymmetry — and what remains contested

The doctrinal asymmetry at the heart of the bigamy framework is the gap between the criminal proof threshold and the civil proof threshold. A second marriage that has been gone through with social acceptance but not with the formal essential ceremonies — a "Devgad Temple" marriage of the kind that Badshah recognised, where the parties exchange garlands before a deity and cohabit thereafter — is sufficient to attract civil consequences (nullity, maintenance, legitimacy of children) but not sufficient to sustain a Section 82 BNS conviction. The result is that the offence is widely committed and rarely prosecuted to conviction. The Law Commission of India in its Report No. 227 on the prevention of bigamy via conversion noted the asymmetry and recommended (a) the elimination of the essential-ceremonies threshold from Section 494 by way of an Explanation deeming any form of public cohabitation as husband and wife after a marriage solemnisation, however performed, to be a marriage for the purposes of the section; and (b) the strengthening of the conversion-bigamy provisions by force of a statutory codification of the Sarla Mudgal / Lily Thomas rule. Neither recommendation has been carried into Section 82 of the BNS, which reproduces Section 494 IPC without substantive change.

The Muslim-husband polygamy carve-out is the second contested area. Section 82 of the BNS does not, by its terms, apply to a Muslim male who marries up to four wives under his personal law — his second, third, or fourth marriage is not "void by reason of its taking place during the life of such husband or wife", because Muslim personal law recognises the validity of the subsequent marriages. The position is the same as under Section 494 of the IPC. Where, however, the first marriage of a Muslim male was solemnised under the Special Marriage Act, 1954 (which imposes monogamy as a matter of civil-law election), the subsequent marriage is void by reason of Section 4(a) read with Section 24 of the SMA, and the offence under Section 82 BNS is attracted — the Allahabad High Court applied the principle in Anwar Ahmed v State of UP, 1991 Cr LJ 717. The SMA route is therefore the only route through which a Muslim male can be convicted of bigamy.

The Uniform Civil Code reference — the third contested area — sits in the background of the bigamy framework. The Uttarakhand Uniform Civil Code, 2024 makes monogamy uniform across communities within the State of Uttarakhand, with the consequence that the Muslim-male polygamy is no longer a defence to a Section 82 BNS charge in that State; the doctrine of Sarla Mudgal and Lily Thomas is codified into statute. The constitutionality of the State UCC is under challenge; the model has not been replicated elsewhere; the doctrinal direction across the rest of India remains the case-law direction of Sarla Mudgal and Lily Thomas.

The Ravinder Kaur and Yamunabai lines — overlap with adjacent offences

Two adjacent doctrines complete the bigamy framework. The first is the overlap with Section 493 of the BNS [Section 493 IPC] — cohabitation caused by a man deceitfully inducing a belief of lawful marriage. The Supreme Court in Ravinder Kaur v Anil Kumar, (2015) 8 SCC 286 held that where an ex-parte decree of divorce was in force during the cohabitation, the cohabitation could not be characterised as deceit-induced under Section 493 — the marriage was treated as subsisting until the decree was set aside. The line is the same as in Krishna Gopal Divedi on the bigamy side.

The second is the maintenance overlap with Yamunabai Anantrao Adhav v Anantrao Shivram Adhav, (1988) 1 SCC 530 and Savitaben Somabhai Bhatiya v State of Gujarat, AIR 2005 SC 1809. The line held — until Badshah qualified it — that a woman whose marriage was void on the ground of the man's subsisting first marriage was not a "wife" within Explanation (b) to Section 125 of the CrPC and could not claim maintenance under that section. The Badshah qualification — that the duped second wife is entitled to maintenance — operates alongside the bigamy framework. The duped second wife who chooses to prosecute under Section 82 of the BNS is also entitled to claim maintenance under Section 144 of the BNSS [Section 125 CrPC]; the two remedies operate independently and the success of the maintenance application does not turn on the success of the prosecution.

The 2026 prosecution practice — a doctrinal sketch

The bigamy prosecution practice in 2026 can be sketched in five propositions. One, the substantive offence under Section 82 of the BNS is uniform across communities (other than for a Muslim male's marriages under his personal law) and operates alongside the personal-law void-marriage rules. Two, the proof threshold imposed by Bhaurao Lokhande — strict proof of the essential ceremonies of the personal law (or of the customary law of the community under S. Nagalingam) — is the operative reason why successful prosecutions are rare. Three, the conversion route to Islam is closed by Sarla Mudgal and Lily Thomas; the bigamy section operates on a Hindu, Christian or Parsi husband notwithstanding his subsequent conversion. Four, the locus rule under Section 218 of the BNSS — restricted to the aggrieved spouse and the listed blood relatives — has been extended to the duped second wife by A. Subhash Babu; the FIR route is available where the complaint discloses a cognizable offence (Section 85 BNS or another). Five, the civil-side remedies (nullity, divorce, maintenance, legitimacy of children) operate on a lower proof standard and are routinely used as the primary route, with the bigamy prosecution operating as a coercive tool alongside. The asymmetry between the strict criminal proof and the easier civil proof is the structural feature of the framework; reform proposals to harmonise the two thresholds remain on the legislative anvil.