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Synopsis

The Bombay High Court has recently quashed a complaint against a second wife of a man and her father for abetting bigamy while observing that the onus of finding out if a man's first marriage is subsisting cannot be put on the second wife.

“A plain reading of Section 494 would give a cause to the wife from the first marriage to register an offence under Section 494 of the IPC against the husband. There is nothing on record to indicate that the second wife contracted the marriage with the husband being aware that the first marriage is subsisting. A penal statute must be strictly construed. The onus cannot be cast on the second wife to find out if the first marriage is subsisting. That is not the contemplation of Section 494 of the IPC,” the order reads.

A single-judge bench of the high court, comprising Justice MS Karnik, was hearing an application moved by the second wife of the man and her father seeking to quash the complaint filed against them by the man's first wife.

The man and his first wife married in 1990 and had three children out of wedlock. Due to ill-treatment by the husband, the first wife left the matrimonial house on 10th July 2005. After moving to her father’s house, she came to know that the husband had married another woman on 9th October 2005.

Therefore, the first wife filed a complaint against the second wife and her father for abetting bigamy. Based on the complaint, the trial court issued a process to the second wife and her father.

The high court, in its order, noted that the husband being the principal offender can be proceeded under Section 494 of the IPC, but there was no mention in the complaint as to in what manner the second wife and her father have aided or instigated the husband and abetted him in the commission of the offence under Section 494 of the IPC.

The high court observed that the mere assertion of performing a second marriage is not sufficient to proceed against the applicants without there being any allegation making out a case of abetment.

Therefore, the high court concluded that the offence of abetment was not made out against the second wife and her father and quashed the complaint.

Case title: Anita Sudam Ahire & Anr vs state of Maharashtra & Ors