Void Second Marriage Cannot Make a Man “Husband” Under BNS Sections 80 and 85, Rules Allahabad HC

Justice Arun Kumar Singh Deshwal holds that the word “husband” in BNS Sections 80 and 85 covers only a legally married man, but carves out two exceptions where a void marriage will not shield an accused.

On 22 July 2026, Justice Arun Kumar Singh Deshwal, sitting singly at the High Court of Judicature at Allahabad, decided a preliminary legal question in Criminal Misc. Bail Application No. 22566 of 2026 before proceeding to grant bail to the applicant. The question was whether a man who contracts a second marriage during the lifetime of his first wife can be prosecuted as a “husband” for the purpose of dowry death and cruelty offences under Sections 80 and 85 of the Bharatiya Nyaya Sanhita, 2023. After surveying conflicting Supreme Court decisions and two divergent single-bench rulings of the Allahabad High Court itself, the court held that the word “husband” in both provisions must be strictly construed to mean a man who is lawfully married to the woman concerned. A void second marriage therefore does not attract those provisions—with two specific exceptions carved out to prevent an accused from profiting by his own wrong.

The Bail Application and the Preliminary Issue

The applicant, Sarvesh Alias Chhotu Alias Chhotelal, was arrested on 28 January 2026 in connection with Case Crime No. 24 of 2026, registered at Police Station Madhautanda, District Pilibhit. The case was registered under Sections 85 and 80(2) of the BNS and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The allegation was that his second wife died of suspected dowry harassment.

When the matter was first heard on 6 July 2026, counsel for the applicant, Mr. Suneel Kumar, raised a threshold legal argument: the deceased was the applicant's second wife, the marriage having been performed during the subsistence of a valid first marriage with his first wife alive. That second marriage was therefore void. A void marriage, counsel argued, makes the applicant a non-husband in the eye of law, so Sections 80 and 85 BNS and the presumption under Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 cannot operate against him.

The court treated this as a distinct preliminary question of law, directed both the Additional Government Advocate and the State Law Officer to prepare submissions, and heard the matter afresh on 22 July 2026.

The Conflicting Legal Landscape

Ms. Mayuri Mehrotra, learned State Law Officer, placed three decisions before the court. The first was Reema Aggarwal v. Anupam and others, (2004) 3 SCC 199, in which the Supreme Court adopted purposive construction and held that the word “husband” in Sections 498-A and 304-B IPC should extend to a person who enters into a marital relationship under the colour of that status, irrespective of the legal validity of the marriage. The court reasoned that a literal reading would allow an accused to take shelter behind the voidness of a marriage to escape liability for greed-driven harassment.

The second decision was a single-bench ruling of the Karnataka High Court in Dr. Lokesh B H and others v. State of Karnataka, (2025) SCC Online 21706, which extended the definition further to cover void or voidable marriages and even live-in relationships bearing the attributes of marriage. That judgment, however, had been challenged before the Supreme Court in SLP Criminal No. 2240–2241 of 2026; the Apex Court stayed the Karnataka High Court order on 13 February 2026, heard the matter on 28 May 2026, and reserved judgment.

The third was a co-ordinate bench ruling of the Allahabad High Court in Application under Section 482 No. 27734 of 2024 (Adarsh Yadav v. State of U.P. & another), decided on 20 September 2024, which held that for Sections 304-B and 498-A IPC to apply it was sufficient to show that the victim and the accused were residing as husband and wife at the relevant time, since the validity of a marriage cannot be determined in criminal proceedings.

Mr. Rakesh Kumar Mishra, learned AGA, additionally relied on Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, which defines “domestic relationship” to include persons who live or have lived together in a shared household “through a relationship in the nature of marriage.” This, he submitted, meant that even a void marital relationship attracts the protective provisions.

Against these, the court considered two Supreme Court decisions that pulled in the opposite direction. In Shivcharan Lal Verma v. State of Madhya Pradesh, (2007) 15 SCC 369, a three-judge bench of the Supreme Court set aside a conviction under Section 498-A IPC on the ground that where the marriage itself was null and void, prosecution under that provision was not maintainable. This position was reiterated by the Supreme Court in P. Sivakumar v. State, 2023 SCC OnLine SC 1737, where it held that when a marriage has been found null and void, a conviction under Section 498-A IPC cannot be sustained.

The Allahabad High Court itself had previously taken a strict view in Akhilesh Kesari and 3 others v. State of U.P. and another, Application under Section 482 No. 38288 of 2023, decided on 28 March 2024, holding that because the IPC is a penal provision requiring strict interpretation, proceedings under Section 498-A against the alleged husband of a void marriage are not maintainable.

How the Court Reasoned

Justice Deshwal began with the text. Section 80 BNS defines “dowry death” as a death caused by burns, bodily injury, or otherwise than under normal circumstances within seven years of marriage, where it is shown that soon before her death the woman was subjected to cruelty or harassment by her “husband” or any relative of her husband in connection with any demand for dowry. Section 85 BNS punishes cruelty by a “husband” or his relatives. Neither provision defines “husband.”

The court turned to the Dowry Prohibition Act, 1961. Section 2 defines dowry as property or valuable security given or agreed to be given in connection with “the marriage of the said parties.” If the marriage is void, the court observed, a demand not connected to a valid marriage would not qualify as a demand for dowry in the strict statutory sense.

The court then resolved the conflict between Reema Aggarwal and Shivcharan Lal Verma by applying the basic principle that a later decision of a larger bench prevails. Shivcharan Lal Verma was decided by three judges; Reema Aggarwal was decided by two. The three-judge view, subsequently reaffirmed in P. Sivakumar in 2023, must therefore prevail. The detailed purposive reasoning in Reema Aggarwal could not override a numerically larger bench expressing a contrary position.

Strict interpretation of penal provisions was independently reinforced. The court quoted Tolaram Relumal and another v. State of Bombay, (1954) 1 SCC 961, for the proposition that where two reasonable constructions of a penal provision are possible, the court must lean towards the construction that exempts the subject from penalty rather than the one that imposes it. It also relied on M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485, which stated that ambiguity in the construction of a penal statute must favour the accused, given the power disparity between an individual and the State. The court further cited the Supreme Court's recent observation in M/s. Balaji Traders v. State of U.P. & Anr., SLP (Crl.) No. 3159 of 2025, that the scope of a penal provision cannot be extended by reading in words that are not there.

On the dictionary meaning, the court noted that Black's Law Dictionary defines “husband” as a married man who has a lawful spouse living—which excludes a man whose purported marriage is itself void.

Regarding the Domestic Violence Act definition, the court did not treat Section 2(f) of that Act as transplantable into the BNS. The definition of “domestic relationship” under a protective statute designed for civil remedies does not, the court held, enlarge the meaning of “husband” in a penal statute.

The Two Exceptions

Having reached the general rule, Justice Deshwal carved out two situations where the accused cannot hide behind the voidness of a second marriage.

The first exception applies where there is a genuine doubt about whether the first marriage was valid. In such a case, the person living as “husband” in an alleged second marriage will be covered within the definition for purposes of Sections 80 and 85 BNS, because the validity of a marriage cannot be conclusively determined in criminal proceedings.

The second exception applies where a man contracts a second marriage without disclosing to his second wife that he has a validly married and living first spouse, and the second wife remains unaware of this fact until the commission of the offence. In that situation, the court held, the man will be deemed a “husband” for the purposes of Sections 80 and 85 BNS, since he cannot be permitted to take advantage of his own wrong.

The court also addressed the position of Muslim men. Under Shariat law, a second, third, or fourth marriage is valid. A Muslim man living as a husband with a second, third, or fourth wife therefore falls squarely within the definition of “husband” for purposes of Sections 80 and 85 BNS.

Application to the Facts

Turning to the merits of the bail application after delivering the preliminary ruling, the court noted that it was admitted by the first informant that the marriage of the applicant with the deceased was his second marriage, performed during the subsistence of his first marriage, with his first wife alive and residing with them. Neither exception applied: there was no doubt about the first marriage, and the first wife was living openly in the same household, making concealment from the second wife an open factual question unfavourable to the prosecution's invocation of the second exception.

The applicant's counsel also pointed out that the deceased had died by consuming poison, that no specific allegation had been made against the applicant beyond his marital status, that the charge sheet had already been filed, and that the applicant had no criminal history. He had been in custody since 28 January 2026.

The State Law Officer opposed bail but could not dispute the factual position regarding the marriage.

Order

The court allowed the bail application. It directed that Sarvesh Alias Chhotu Alias Chhotelal be released on bail upon furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, subject to standard conditions: not tampering with evidence or witnesses, cooperating in the trial without seeking unnecessary adjournments, not committing any further offence, and attending as required under the bond. Breach of any condition was stated to be a ground for cancellation.

The court directed identity, status, and residence proof of the applicant and sureties to be verified before bonds are accepted, and mobile number and Aadhaar card of the applicant and sureties to be verified by the trial court. The release order is to be transmitted to the concerned jail through the Bail Order Management System. The court further directed that a copy of the order be sent to the applicant through the Jail Superintendent, Pilibhit, via e-mail or the e-Prison portal, and to the trial court via e-mode within 24 hours.