Second Spouse Or Their Family Can't Be Prosecuted For Bigamy Under Section 494 IPC: Karnataka High Court

The Karnataka High Court has made it clear that it is only the husband or wife who marries for the second time during the subsistence of an earlier marriage and the life time of the earlier spouse, who can be prosecuted under Section 494 of the Indian Penal Code.

A single judge bench of Justice Suraj Govindaraj added that the second spouse or their parents can't be prosecuted under the provision.

The respondent herein had filed a private complaint against her husband alleging he entered into a second marriage during subsistence of their marriage. She had also made the husband's second wife and her family a party to the proceedings on the ground that they participated in the second marriage ceremony.

The petitioners (second wife's family) argued that they cannot be prosecuted under Section 494 of IPC inasmuch as the prosecution contemplated therein is only as regards the person who has committed the said offence. Merely because the petitioners participated in the wedding ceremony, they cannot be prosecuted for the offences punishable under Section 494 of IPC, it was argued.

The respondent then contended that Trial Court may introduce the charge under Section 506 of IPC for abetment against the petitioners herein.

On a perusal of Section 494 IPC, the bench said- whoever, having a husband or wife living, marries during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend for seven years. Though there are certain exceptions which have been provided, those exceptions would not be attracted in the present case.

“What is important for this Court to consider is that in terms of Section 494 of IPC it is only the person who marries during the subsistence and the life time of the earlier spouse and the earlier marriage could be prosecuted and punished for the offences punishable under Section 494 of IPC. The said provision does not even contemplate the person to whom the husband or wife has married to be prosecuted under Section 494 of IPC. Let alone the father, mother and sister who had participated in or attended the wedding.”

Noting that the only allegation made in the complaint is that petitioners had knowledge of this being the second marriage of respondent's husband, Court said, "There is no averment made therein that they were aware of the subsisting marriage between the complainant and accused No.1 or further, there is no allegation made as regards the intention on part of accused Nos.3 to 6 having involved themselves in a offence punishable under Section 494 of IPC or felicitated or abated the said offence."

Accordingly it allowed the petition.

Appearance: Advocate Praveen C for Petitioners

Advocate .Jagruth for Advocate Rahul Rai K for Respondent.

Citation No: 2024 LiveLaw (Kar) 148

Case Title: Thimmappa & Others AND Bharathi

Case No: CRIMINAL PETITION NO. 7517 OF 2017

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