Bigamy Second Marriage Complaint — Advocate at Asansol Court

Section 82 of the Bharatiya Nyaya Sanhita, 2023 punishes whoever, having a husband or wife living, marries again, provided the second marriage is void by reason of its taking place during the life of the first spouse. It also covers a person who marries while the earlier marriage remains valid. The offence carries imprisonment and fine. It applies to the party who remarries and to any person who assists or arranges the second marriage. Where the second marriage is void because the first still subsists, the offence is complete once the second ceremony is performed.

The complaint is normally filed by the first spouse, who is the person most directly aggrieved. Where the first spouse chooses to prosecute, the court may take cognisance of the offence. For a Hindu, Muslim, Christian or Parsi marriage, the personal law of the parties determines whether the second marriage is void, and the criminal section applies only when the second marriage is void for that reason.

Under the Hindu Marriage Act, 1955, one condition for a valid marriage is that neither party has a spouse living at the time of the marriage. A marriage in breach of that condition is void, and either party may seek a decree of nullity under Section 11. This means the second wife or husband has no legal status as a spouse, though the children of the second marriage are generally treated as legitimate under the Act. The second spouse, too, may seek a declaration of nullity, because the second marriage confers no valid status on either party.

In the personal law context, a valid customary divorce or a valid divorce decree obtained before the second marriage defeats a complaint of bigamy. If the first marriage had already been dissolved by a competent court, there is no bigamy at all. Proving that the first marriage still subsisted on the exact date of the second is therefore the heart of the entire case for the first spouse.

The first spouse files a complaint before the competent magistrate, or an FIR at the police station, setting out the first marriage, its subsisting status, the fact of the second marriage and the names of the witnesses. A complaint under Section 82 BNS is generally pursued on the complaint of the first spouse. Legal help is advisable because the complaint must be precise about the two marriages and their exact dates. Documents such as the first marriage certificate should be filed along with the complaint to fix the sequence of events.

If the police decline to act or delay, the magistrate can be approached directly under the criminal procedure. Under the Bharatiya Nagarik Suraksha Sanhita, 2023, the procedure for complaints to the magistrate and for the recording of evidence is set out clearly, and a zero FIR may be registered at any police station and later transferred to the correct one. Keep the acknowledgement and the complaint number safely.

A second marriage is proved by evidence that the essential ceremony required by the personal law was actually performed. For a Hindu marriage, the marriage must be solemnised in accordance with Section 7 of the Hindu Marriage Act, 1955, which for many communities requires the saptapadi, the seven steps, or another customary ceremony. Registration alone, or a bare exchange of garlands, may not suffice to establish a valid second marriage before the court.

Witnesses who attended the second ceremony, photographs, the invitation card, hotel records, a marriage certificate or a religious record are all valuable evidence. Living together is not by itself proof of a valid second marriage, however strong the suspicion it creates. Because this is the hardest element to establish, the first spouse should gather the evidence carefully, often with the help of a lawyer or an investigator, before and during the complaint. Delay can allow the accused to rearrange records, which makes the proof harder to obtain.

The first spouse can claim maintenance under the Hindu Marriage Act, 1955 or under the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the maintenance provision of the Criminal Procedure Code. The second marriage does not automatically end a wife's right to maintenance from the husband, though the court considers whether she was living separately by choice. Interim maintenance may also be sought during the pendency of the case.

Custody of the children of the first marriage is decided on their welfare, and bigamy by a parent is one factor the court may weigh, not the deciding rule. Property rights depend on title and on the applicable law, and a decree of nullity for the second marriage settles the legal status of the parties to it. An Asansol lawyer can coordinate the criminal complaint, the nullity petition and the maintenance claim before the Family Court. Maintaining one consistent set of facts across all three proceedings strengthens each of them.