Wife's Consent for Second Marriage Immaterial: Bigamy is a Continuing Offence : Karnataka HC

The Karnataka High Court has said that bigamy under section 494 of the Indian Penal Code (IPC) is a continuing offence and the consent of wife for the subsequent marriage would become immaterial for consideration of the offence.

A single judge bench of Justice M Nagaprasanna made the observation while dismissing a petition filed by a 76-year-old man and his third wife, seeking to quash the criminal proceedings initiated against them by the man's first wife.

The court said: The proceedings against the 1st and 2nd petitioners cannot be quashed as the offence is admitted by the 1^st petitioner in the petition. It being with the consent of the 1st wife or with the consent of the 1st and 2nd wives for the third time would become immaterial for consideration of offence of bigamy.

Case details: The marriage between the 1st petitioner and the respondent took place in 1968. It is averred that in the year 1972-73, the 1st petitioner with the consent of the respondent married her sister, Savitramma. The 1st petitioner again got married in the year 1993 with the 2nd petitioner/ Smt. Varalakshmi. Again, the averment is that, it was with the permission and consent of the 1st and 2nd wives.

It was also stated that the properties of the 1st petitioner were equally divided amongst all of them. Therefore, it is the contention that the 1st  wife was aware of the marriage of the 1st petitioner with Smt. Savitramma, the second marriage and both Smt. Savitramma and the respondent were aware of the marriage of the 1st petitioner with the 2nd petitioner i.e., the third marriage. It is also stated that all of them lived together peacefully.

The respondent in 2018, filed a private complaint invoking Section 200 of the Cr.P.C. against the petitioners herein alleging offences punishable under Section 494 of the IPC for bigamy, Section 109 of the IPC for abatement and Section 34 of the IPC. The respondent also filed an application under Section 12 of the Domestic Violence Act, 2015 on the very next day of registration of the aforesaid private complaint.

Later, the Magistrate issued summons to the petitioners in terms of Section 204 of the CrPC, which was after an order taking cognizance of the offences against the petitioners. It is this act of the Magistrate taking cognizance that was called in question in the subject petition.

Petitioners submissions: It was said that the allegation of polygamy against the 1st petitioner is unfounded as the complainant/respondent was very well aware of his relationships as with her consent, the 1st petitioner contracted subsequent marriages. It was further submitted that the complaint was registered in the year 2018, after about 25 years of the marriage with the 2nd petitioner and after about 45 years of the complainant being aware of the 2nd marriage.

Respondents’ submissions: The complainant submitted that she was not even aware of the marriage of the 1st petitioner with the 2nd petitioner. Suppressing the fact that the1st petitioner is already married, he married the 2nd petitioner which would definitely amount to bigamy and there can be no delay in cases of bigamy is his emphatic submission.

Findings:

The bench relied on the Apex Court judgment in the case of State Of Bihar V. Deokaran Nenshi And Another, (1972) 2 SCC 890, wherein it was held that a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It was observed.

Several other High Courts have also taken the similar view that bigamy is a continuing offence. If admitted facts as deliberated hereinabove are taken note of, it cannot be in doubt that the 1st petitioner has contracted second and even third marriages during the subsistence of the 1st marriage with the complainant. In the teeth of the admitted fact, no further interpretation need be given, as even today, the 1st petitioner admits that he is the husband of three women. Therefore, he is in the web of the offence punishable under Section 494 of the IPC.

It then held, "The 1st petitioner, the 2nd petitioner and the other two wives of the 1st petitioner have all married the 1st petitioner during the subsistence of each other's marriage and being fully aware of the preceding marriage. Therefore, the proceedings will have to be continued against them.

In regards to other petitioners the bench said, "Petitioner Nos.3, 4, 5, and 6 who are other family members or friends of the 1st petitioner cannot be hauled into these proceedings unless there are instances to demonstrate that they were responsible for the commission of second marriage or even the third marriage. That is not the averment in the complaint. The 2nd marriage took place in 1973 and the third marriage in 1993. Dragging all other members of the family and friends into the web of these proceedings’ sans countenance.

It is for the protagonists in the quadrangle to resolve the issue amongst themselves and not drag other persons into these proceedings. If the proceedings against other petitioners are not quashed, it would become an abuse of the process of law, result in miscarriage of justice and quadruplet harassment to petitioner Nos.3 to 6.

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