Second Wife Unaware of Subsisting Marriage Not an Offender Under Section 82 BNS, Madras High Court Grants Anticipatory Bail

Madras High Court holds that Section 82 BNS targets the bigamous spouse, not a second wife who lacked knowledge of the first marriage, and grants anticipatory bail to Accused No. 2.

Justice N. Ramesh, sitting singly at the Madras High Court, granted anticipatory bail on 28 August 2026 to Rajalakshmi, arrayed as Accused No. 2 in Crime No. 74 of 2026 registered by the All Women Police Station, Panruti, Cuddalore District. The FIR, filed on 8 July 2026 for an alleged occurrence on 19 June 2026, charged Rajalakshmi under Sections 82, 85, 49, 296(b) and 351(2) of the Bharatiya Nyaya Sanhita. The court held, at the prima facie stage required for anticipatory bail, that a person who marries without knowledge of the spouse's earlier subsisting marriage does not become an offender under Section 82 BNS, and that the charge under Section 85 was equally unsustainable against her on the facts alleged.

The FIR and Rajalakshmi’s Case

The FIR was lodged by the wife of Mayakrishnan, the first accused. The complainant alleged that Rajalakshmi had married Mayakrishnan while his marriage with the complainant was still subsisting.

Rajalakshmi's case, set out in her affidavit, was that she had no knowledge at the time of her marriage to Mayakrishnan that he was already married. She contended that Mayakrishnan had concealed the fact of his prior marriage from her, making her a person deceived by that concealment rather than a participant in any offence. She characterised the dispute as one essentially between the complainant and Mayakrishnan, and argued she had been falsely implicated in a matrimonial conflict that did not concern her in any culpable sense.

The petition was filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking anticipatory bail in the event of her arrest.

What Section 82 BNS Says and Who It Targets

Justice Ramesh set out the text of Section 82 BNS in full. Sub-section (1) punishes whoever, having a husband or wife living, marries again during the subsistence of that marriage. Sub-section (2) enhances the punishment where the offender has concealed the fact of the earlier marriage from the person with whom the subsequent marriage is contracted.

The court observed that 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 enters into marriage without knowledge of the other party's subsisting marriage does not thereby become an offender under Section 82. The court noted that Section 82 BNS reproduces, in substance, the former Sections 494 and 495 of the Indian Penal Code, 1860.

The court found this construction to be well settled under the predecessor provision and carried forward under the BNS. It relied on two High Court decisions. The Karnataka High Court in Thimmappa v. Bharathi (2024:KHC:10412) had held that only the spouse who marries again during the subsistence of an earlier marriage can be prosecuted under Section 494 IPC, and that relatives or the second spouse cannot be roped in without material showing knowledge and participation. The Chhattisgarh High Court in Dr. Manju Sinha v. Smt. Pyari Dadsena (2025:CGHC:4513) had held that a person who was single at the time of the marriage and married another whose earlier marriage was subsisting cannot be prosecuted under Section 494 IPC, since liability attaches only to the spouse whose earlier marriage is in force.

Applying these principles, the court held that on Rajalakshmi's specific case of want of knowledge, she was not, prima facie, the person contemplated as an offender under Section 82(1). Whether that plea was true was a matter for investigation and, if necessary, trial; but for anticipatory bail, in the absence of any material placed by the prosecution to show she was aware of the subsisting marriage, the case under Section 82 did not disclose the gravity that would justify custodial interrogation.

The Section 85 BNS Charge and the “Relative of the Husband” Requirement

Section 85 BNS, corresponding to Section 498A IPC, punishes cruelty inflicted on a woman by her “husband or relative of the husband.” The court emphasised that the provision is not of general application; by its own terms, it is confined to the husband and persons who stand in the relationship of a relative to the husband, ordinarily by blood, marriage or adoption.

Justice Ramesh relied on the Calcutta High Court's decision in Sagari Hembram v. State of West Bengal (2024 SCC Online Cal 10278), where proceedings under Sections 498A, 494, 406 and 506 IPC were quashed against a second wife on the ground that Section 494 IPC applies only to the person who has married a second time during the subsistence of a valid marriage, not to the person with whom that marriage is contracted.

The court applied the same reasoning to Section 85 BNS. On the petitioner's case — that she entered the marriage believing herself to be Mayakrishnan's wife while being deceived about his earlier marriage — she did not become a “relative of the husband” of the complainant within the meaning of Section 85. The court observed that on the petitioner's case, she and the complainant occupied the position of two women deceived and wronged by the same man, not that of an accused and her victim.

The Cognizability Question Under Section 82(2) BNS

Justice Ramesh noted an additional point without resting the decision on it alone. The Calcutta High Court (Jalpaiguri Circuit Bench) in Ajay Kumar v. The State of West Bengal (CRR/77/2026, decided 23 March 2026) — a case involving the identical combination of Sections 82(2) and 85 of the BNS — had held that under Section 219 of the BNSS, an offence under Section 82(2) BNS is non-cognizable and cannot be set in motion by a police case; it must proceed only as a complaint case.

The court noted that if the offence invoked under Section 82 in the present crime was founded on the concealment limb under Section 82(2), that observation would bear on the very maintainability of the police case to that extent. This aspect was expressly left open for consideration at the appropriate stage and was noted only as a factor reinforcing the conclusion that custodial interrogation of the petitioner was not shown to be necessary.

The Arnesh Kumar Framework Applied

The court set out the considerations governing jurisdiction under Section 482 BNSS: the nature and gravity of the accusation, the role attributed to the applicant, the possibility of fleeing from justice or tampering with evidence, and the need, if any, for custodial interrogation.

It referred to the Supreme Court's caution in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 against automatic or mechanical arrest in matrimonial offences carrying sentences of less than seven years, requiring that the necessity for arrest be objectively justified. The court noted that Section 85 BNS is the successor provision to Section 498A IPC, the very provision at issue in Arnesh Kumar.

Applying these considerations, the court summarised its findings: the core allegation under Section 82, on the statutory language and the authorities cited, was directed at Mayakrishnan and not at the petitioner on her case of want of knowledge; the allegation under Section 85 was not prima facie sustainable against the petitioner, who was not shown to be a relative of the husband of the complainant; and the petitioner was a woman who had approached the court promptly.

Scope of the Order

Justice Ramesh was explicit that the observations in the order were confined to the prima facie evaluation required at the anticipatory bail stage. They were not to be construed as findings on the merits of the prosecution case against Mayakrishnan or any other accused, nor as a final determination of the validity of either marriage or the applicability of any section invoked. Those questions were to abide investigation and, if a charge sheet was filed, trial.

The court further made clear that nothing in the order would enure to the benefit of Mayakrishnan or any other co-accused, and that the investigation against them was to proceed uninfluenced by anything stated in the order.

Order

The Criminal Original Petition was allowed. Rajalakshmi was ordered to be released on bail in the event of arrest, or on her appearance within fifteen days from the date the order copy was made ready, before the Judicial Magistrate No. I, Panruti, Cuddalore District.

The conditions imposed were:

• Execution of a bond for Rs. 25,000 with two sureties each for a like sum, to the satisfaction of the Magistrate.
• If the petitioner fails to surrender before the Magistrate within fifteen days of receipt of the order copy, the order shall stand automatically cancelled.
• Sureties to affix photographs and left thumb impressions in the application for suretyship in Judicial Form No. 46 annexed to the Criminal Rules of Practice, 2019; the Magistrate to obtain a copy of any one identity proof to verify their identity.
• The petitioner to report before the respondent police daily at 10.30 am for a period of four weeks.
• On breach of any condition, the Magistrate or Trial Court is entitled to take appropriate action as if the conditions had been imposed and the petitioner released on anticipatory bail by that court, as laid down in P.K. Shaji v. State of Kerala (2005) AIR SCW 5560.
• If the petitioner thereafter absconds, a fresh FIR can be registered under Section 269 of the BNS.