First Wife Cannot Be Asked To Prove Every Ceremony Of Her Husband's Second Marriage Even Before Issuing Summons In Her Complaint Alleging Bigamy: Delhi HC

The Delhi High Court held that the first wife cannot be asked to prove every ceremony of second marriage of her husband even before issuing the summons in her complaint alleging Bigamy.

It said that the absence of law making adultery an offence cannot provide individuals with a blanket immunity, in a sense that they can marry other persons in secrecy during subsistence of their first marriage.

The Court held thus in a batch of two instant petitions preferred against the order passed by the Additional Sessions Judge, Saket Courts vide which a summoning order of the Metropolitan Magistrate was set aside.

A Single Bench of Justice Swarana Kanta Sharma observed, "In this Court’s view, the law has to live in reality, and a law and its application sans practicality and being alive to realities of life cannot be a good law. Therefore, to insist that all the ceremonies of marriage, as performed for the purpose of a valid marriage, must be proved for the purpose of even summoning the accused for offence of bigamy will put the first wife into a situation where though she knows that her husband is living with another woman after performing some kind of marriage ceremony, and are living and projecting themselves as husband and wife, but still she can take no action against him since one of the ceremonies of marriage could not be proved by her. ... It will be a cumbersome burden on a woman to be asked to first prove every ceremony of the second marriage of the husband, even before issuing summons"

The Bench said that in such a situation, the Courts cannot afford to leave individuals without a legal remedy, especially those wives or husbands, whose partners have entered into another marriage.

Advocates Malavika Rajkotia and Ramakant Sharma represented the petitioner while Advocates Giriraj Subramanium, Ravi Pathak, and Akhilesh Tallur represented the respondents.

Factual Background -

The petitioner i.e., wife had filed a complaint under Sections 494 and 406 of the Indian Penal Code (IPC) against the accused persons/respondents. The parties had met in New York, USA in the year 2000 and their marriage was solemnized in 2001 in New Delhi. The husband decided to take up an assignment in India on short-term basis but the same continued for about two years after which he did not want to go back to USA and hence started his own business. It was alleged that he started making young and single friends and started ignoring his wife. He begun to stay out till late and partying till wee hours of morning.

In 2009, he went to USA without taking his wife and upon his return, started spending most of his time away from home and was busy on phone always. In 2010, he started visiting lawyers for dissolution of marriage and one day he met with an accident. The wife looked after him but he again invited his friends and later it was found that there was another girl in the car when the accident took place. The wife came to know that he was in a relationship with another woman and thereafter, he proposed her for marriage in Paris in 2015. He got married and had a baby girl afterwards with her. Hence, the wife filed a complaint under Section 200 of the Criminal Procedure Code (CrPC) and alleged bigamy.

The High Court in view of the facts and circumstances of the case noted, “In these facts and circumstances, the determination of whether saptapadi was performed or not, while performing the second marriage, is a matter that requires thorough examination during the course of trial. Further, whether any other acceptable form of marriage between the accused no.1 and 4 as per their customs etc. was performed or not cannot be decided without leading evidence and trial. The complexity of issues such as the validity of marriage and performance of rituals should be reserved for comprehensive scrutiny during the trial proceedings, where evidence can be presented, cross-examined, and evaluated in a more elaborate manner.”

The Court said that the victim cannot be left remediless in case his/her legally wedded wife/husband marry during their lifetime and they are not in possession of proof of Saptapadi, especially in the absence of offence of adultery. It also further said that since a second marriage during subsistence of first legally valid marriage will generally be a clandestine marriage performed by a priest, the nature of such clandestine act is capable of producing difficulties in proving whether persons were married by following all the rituals or they were married by any other form of legally accepted marriage.

“Though many persons may not agree that threat to the institution of marriage can be foundation to justify criminal sanction against a person who does not respect or abide by its norms, this Court, however, notes that the offence of bigamy by its special nature gives rise to special problems for the victim concerned. Bigamy i.e. getting married to another person while being legally married to one is a serious prohibited behaviour. While people in today’s era may or may not agree to the relevance of institution of marriage, but once legally married, the duty and the obligation by virtue of solemnization of marriage gives both the parties a new social and legal status.The solemnity of institution of marriage has been respected by law as is evident by Section 494 of IPC”, remarked the Court.

The Court observed that a significant number of individuals no longer prioritize or hold in high regard the institution of marriage and that the preference for live-in relationships, which is legally permissible in our country, is reflective of these changing societal norms. It added that while recognizing and respecting the legal standing of live-in relationships and the individuals who opt for this lifestyle, it is crucial to strike a balance that ensures legal protection for those who have committed to the sanctity and values of marriage.

“The criminal law framework has to extend adequate protection to these spouses who have willingly entered into the sacred commitment of marriage, ensuring that their legal rights are upheld and preserved even as societal norms undergo transformations. … The law cannot be powerless to stop, punish or limit clandestine marriages and unions when the first wife or husband are alive and the valid marriage subsists, as now a spouse performing a second clandestine marriage would not also be liable to punishment for adultery as it is no more an offence”, said the Court.

Furthermore, the Court noted that preserving the sanctity of monogamy does not negate the possibility of evolving legal interpretations or adapting to changing societal norms, however, any reform must be approached cautiously to ensure that it aligns with the foundational principles of Hindu Law and does not inadvertently compromise the essence of monogamous unions.

“Thus, while contemplating changes to legal frameworks, it becomes imperative to strike a delicate balance between upholding traditional values and responding to the evolving dynamics of contemporary society. … it will be contrary to the general spirit of Indian law at the stage of summoning itself in a case of bigamy filed by a wife, to prove beyond reasonable doubt that all ceremonies required for solemnization of a marriage were performed by the accused while marrying to the second partner, and will amount to over-technical approach and against the judicial precedents”, it added.

The Court, therefore, said that at this stage, to burden the complainant, who is the victim wife, would amount to encumbering her unfairly with duty of proving second marriage of her husband which was allegedly a clandestine marriage of which she had been able to procure one photograph with great difficulty.

"In essence, the absence of law making adultery an offence cannot provide individuals with a blanket immunity, in a sense that they can marry other persons in secrecy during subsistence of their first marriage, and then argue that the first partner must prove that such second marriage was solemnized after performing essential rites and ceremonies, even for summoning such an accused for the offence of bigamy, and since adultery no longer remains an offence, such a partner would remain immune from any legal consequences.”, it also observed.

The Court held that in any case, it cannot be expected that the husband of a wife will get married for the second time, during the subsistence of earlier marriage, after informing her first wife or in her presence so that she can collect evidence of his second marriage and the ceremonies performed therein.

“… this Court takes cognizance of the fact that the inability of one partner to prove performance of saptapadi by the other partner while marrying for the second time during subsistence of first marriage, at the stage of summoning itself, especially when the other partner may have solemnized such marriage with the third person in secrecy, should not be exploited as a clever tactic to circumvent the legal consequences of committing offence of bigamy. While legal proceedings do involve strategic elements, such smart maneuvers should not be allowed to compromise the principles of fairness and justice”, it further said.

Hence, the Court concluded by saying that the mere inability of one partner, either a wife or a husband, to prove performance of saptapadi qua the second marriage at the summoning stage should not be misused as a loophole to evade legal consequences and that the legal proceedings must remain guided by the pursuit of justice and the goal to protect legal rights of all citizens. It said that the courts must remain vigilant against any attempts to exploit procedural nuances for tactical advantages that may compromise the fairness and integrity of the legal process.

Accordingly, the High Court disposed of the petitions, set aside the order of Sessions Court, and upheld the summoning order of the Metropolitan Magistrate.

Cause Title- ABC v. XYZ (Neutral Citation: 2024:DHC:21)

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