Section 82 of the BNS – Marrying Again During the Lifetime of Husband or Wife

Imagine a situation where a person, still legally married, enters into a new marriage without disclosing the truth to their new partner. The story begins with two individuals who meet through mutual acquaintances, develop affection for each other, and eventually decide to marry. Everything seems perfect until one day, the truth surfaces — one of them is already legally married to another person. This shocking revelation destroys trust, causes immense emotional suffering, and leads to serious legal consequences. This story is not just fiction; it reflects a real legal and moral wrong addressed under Section 82 of the Bharatiya Nyaya Sanhita (BNS), 2023, which deals with marrying again during the lifetime of a husband or wife.

Understanding Section 82 of the Bharatiya Nyaya Sanhita, 2023

Section 82 of the Bharatiya Nyaya Sanhita replaces Section 494 and 495 of the Indian Penal Code (IPC). It criminalizes bigamy — the act of marrying again while a lawful spouse is still living. The section ensures that the sanctity of marriage is preserved and that individuals do not deceitfully engage in multiple marriages at the same time.

The section states:

  1. Basic Offence (Sub-Section 1):
    Whoever, having a husband or wife living, marries again, and such marriage is void by reason of its taking place during the lifetime of the spouse, shall be punished with imprisonment up to seven years and fine.
  2. Exception:
    This provision does not apply in the following cases:
    • If the first marriage has been declared void by a competent court.
    • If the spouse has been absent continuously for seven years and not heard of as being alive during that period, and the person contracting a new marriage has informed the new partner about these facts before marriage.
  3. Aggravated Offence (Sub-Section 2):
    If a person conceals the fact of the first marriage from the new partner and marries again, the punishment increases to imprisonment up to ten years and fine.

Thus, Section 82 of BNS protects individuals from deceitful and fraudulent marriages while maintaining the sanctity of matrimonial institutions.

Essential Ingredients of the Offence under Section 82 BNS

To establish the offence of marrying again during the lifetime of husband or wife, the following conditions must be fulfilled:

  1. The accused must have a living spouse at the time of the second marriage.
  2. The first marriage must be valid and subsisting under the personal law applicable to the parties.
  3. The second marriage must also be performed with necessary ceremonies and legal formalities.
  4. The accused must have knowledge of the subsistence of the first marriage.
  5. The second marriage must be void because of the existing valid marriage.

If these elements are proven, the act constitutes an offence under Section 82 BNS.

Purpose and Objective of Section 82 BNS

The primary objective of this provision is to:

  • Prevent fraud and deception in marital relationships.
  • Protect the institution of marriage from misuse.
  • Ensure that individuals who are already married do not misuse emotional vulnerability of others by entering into deceitful marriages.
  • Preserve the dignity and faith of lawful spouses and their rights.

The law, therefore, acts as a shield for individuals who may unknowingly become victims of deceitful bigamous relationships.

Illustrative Example

Suppose a man marries a woman and lives with her for several years. Without divorcing her or seeking annulment, he secretly marries another woman by concealing his first marriage. This act constitutes bigamy under Section 82(2) BNS, since he has concealed the fact of his previous marriage. He may face imprisonment of up to ten years and fine.

On the other hand, if he had married again after believing his spouse to be dead because she had not been heard from for over seven years, and he had informed the second woman of the same before marriage, he would not be guilty under this section due to the statutory exception.

Legal Consequences of Marrying Again During Lifetime of Spouse

  1. Criminal Liability:
    The offender can face imprisonment up to seven years or ten years depending on the gravity (whether the first marriage was concealed or not).
  2. Civil Consequences:
    • The second marriage is void and has no legal recognition.
    • The first spouse continues to enjoy all marital rights.
    • The second spouse cannot claim marital benefits such as maintenance or property rights, unless protected under personal law or equitable principles.
  3. Protection for Victims:
    The deceived spouse (first or second) can file a criminal complaint under Section 82 BNS. In addition, the aggrieved woman may seek relief under:
    • Protection of Women from Domestic Violence Act, 2005 (for emotional and financial abuse).
    • Section 125 of Cr.P.C. for maintenance.
    • Section 498A BNS (formerly Section 498A IPC) for cruelty by husband.

Judicial Perspective

Indian courts have consistently upheld the seriousness of this offence. Some important judicial observations include:

  • In Sarla Mudgal v. Union of India (1995) 3 SCC 635, the Supreme Court held that a person who converts to another religion just to remarry without dissolving the first marriage is still guilty of bigamy.
  • In Lily Thomas v. Union of India (2000) 6 SCC 224, the Court clarified that a second marriage during the subsistence of the first one is void, and the second spouse does not acquire the status of a wife.
  • In Kanwal Ram v. The Himachal Pradesh Administration (AIR 1966 SC 614), the Court stated that proof of solemnization of the second marriage with necessary ceremonies is essential to prove the offence.

These cases establish that the essence of Section 82 BNS lies in proving a valid first marriage and an unlawful second one.

Defenses Available Under Section 82 BNS

A person accused under this section may defend themselves if they can prove:

  1. The first marriage was void or not legally valid.
  2. The spouse had been absent for seven years or more and was not heard of during that time, and the fact was disclosed before remarriage.
  3. There was no valid solemnization of the second marriage (for example, essential ceremonies were not performed).
  4. The second marriage occurred after a valid divorce decree.

These defenses are critical in differentiating between genuine cases and those arising out of misunderstanding or procedural confusion.

Impact on Society

Bigamy causes severe social and emotional damage. It leads to:

  • Emotional trauma for both spouses.
  • Disturbance of family peace and trust.
  • Legal complications in property, inheritance, and child custody.
  • Violation of women’s rights and dignity.

By enacting Section 82 BNS, the legislature intends to uphold monogamy and ensure honesty in matrimonial relationships.

Conclusion

In simple terms, Section 82 of the Bharatiya Nyaya Sanhita, 2023, prohibits marrying again during the lifetime of a husband or wife, making such an act punishable with imprisonment up to seven or ten years, depending on the circumstances. This law ensures that no person is deceived into an unlawful marriage and that the sanctity of marital commitment is preserved.

The story we imagined at the beginning—where one partner hides an existing marriage—serves as a reminder of why such legal safeguards exist. Marriage is not merely a social contract; it is a bond of trust, faith, and legal responsibility. Section 82 BNS reinforces this foundation by punishing deceit and protecting the integrity of marriage in India.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304

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