Offences Relating to Marriage (Sections 493–498 IPC) — Bigamy, Adultery (Pre-Joseph Shine)

Sections 81 to 84 of the Bharatiya Nyaya Sanhita, 2023 (BNS) — re-enacting Sections 493 to 498 of the Indian Penal Code, 1860 (IPC) — codify the cluster of offences that the Code uses to police the boundary between lawful marriage and the various ways in which that boundary can be transgressed. Section 81 BNS punishes deceitful cohabitation. Section 82 BNS folds bigamy and bigamy with concealment into a single section with two sub-sections. Section 83 BNS punishes the fraudulent marriage ceremony. Section 84 BNS punishes the enticement of a married woman with criminal intent. The cluster has one significant absentee — Section 497 IPC on adultery, struck down by the Supreme Court in 2018, was not carried into the BNS. The omission and the surviving cluster together form the field. The wider scheme of Indian Penal Code and BNS notes on offences against women situates this cluster between the matrimonial-cruelty regime of Sections 80, 85 and 86 BNS and the residual offences against the human body.

The cluster's drafting style is unusually old. The four surviving offences read more like the original Macaulay text than any other group in the BNS. The legislative choice was deliberate: the cluster works in conjunction with the personal-law statutes — the Hindu Marriage Act, 1955, the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Special Marriage Act, 1954, and the various Muslim personal-law statutes — and the criminal provisions therefore had to fit the existing personal-law architecture. Drafting innovations on the criminal side would have required parallel innovations on the personal-law side, and the legislature chose not to undertake that wider exercise in 2023.

Statutory anchor and the BNS scheme

Section 81 BNS reproduces Section 493 IPC verbatim. The actus reus is deceit by a man causing a woman who is not lawfully married to him to believe that she is so married, and to cohabit or have sexual intercourse with him in that belief. The maximum is ten years and fine. Section 82(1) BNS reproduces Section 494 IPC — bigamy — and Section 82(2) BNS reproduces Section 495 IPC — bigamy with concealment of the former marriage from the new spouse. Section 83 BNS reproduces Section 496 IPC — going through a marriage ceremony dishonestly or fraudulently knowing that one is not thereby lawfully married. Section 84 BNS reproduces Section 498 IPC, with one minor textual excision: the words "from that man or from any person having the care of her on behalf of that man" are dropped, broadening the section to cover enticement irrespective of where the wife is taken from.

The cluster is gendered in design. Section 81 BNS punishes only a man. Section 84 BNS protects a married woman from enticement by another. Sections 82 and 83 BNS use "Whoever" and apply to either gender. The personal-law gradient — the Mohammedan male's permission to marry up to four wives under his personal law — produces a Section 82 BNS exemption for that population, but Mohammedan females remain within the section, as do Hindus, Christians and Parsis of either sex.

Cohabitation by deceitful inducement — Section 81 BNS

The actus reus has two limbs: deceit causing a false belief in the existence of a lawful marriage, and cohabitation or sexual intercourse with the person inducing the belief. The Supreme Court in Ram Chandra Bhagat v. State of Jharkhand, (2013) 1 SCC 562, held that the deceit need not consist in the performance of any particular ceremony or ritual. Anything from which it can reasonably be inferred by ordinary prudence that the woman believed she was the man's lawfully wedded wife is enough. The provision will not, however, attach where the deceit was incomplete: in Amruta Gadtia v. Trilochan Pradhan, 1993 Cr LJ 1022 (Ori), an exchange of garlands and a promise of formal marriage was held not enough to induce the requisite belief.

The Section 81 BNS charge often runs in parallel with the rape charge under Section 63 BNS and the deceitful-means charge under Section 69 BNS. The relationship is layered. Where the woman believed herself married to the man, the act of intercourse may also be rape under the Fourthly description of Section 63 BNS (consent obtained because the woman believes the man to be her husband when in fact he is not). Where the act does not amount to rape but the consent was obtained by a false promise of marriage or by suppressing identity, Section 69 BNS is the appropriate residual charge. Section 81 BNS occupies the narrower space where the deceit is the marriage itself — the man induced a false belief that the marriage had already taken place.

Bigamy — Section 82(1) BNS

The four ingredients of bigamy were stated by the Supreme Court in Pashaura Singh v. State of Punjab, AIR 2010 SC 922. First, the accused must have contracted a first marriage. Second, he must have married again. Third, the first marriage must be subsisting. Fourth, the first spouse must be living. The validity of each marriage is to be determined under the law applicable to the parties — the Hindu Marriage Act for Hindus, the Indian Christian Marriage Act for Christians, the Parsi Marriage Act for Parsis, the Special Marriage Act for marriages registered thereunder, and the personal-law rules for Muslims and Jews.

The requirement that the second marriage be valid in form has produced a peculiar evidentiary rule. The Supreme Court in Kanwal Ram v. H.P. Administration, AIR 1966 SC 614, held that admission of marriage by the accused is not by itself evidence of marriage for the purposes of bigamy or adultery — the prosecution must prove the essential ceremonies (saptapadi for a Hindu marriage governed by Section 7 of the Hindu Marriage Act; the appropriate equivalents for other faiths). The mere registration of the second marriage under the Special Marriage Act is not enough. The reasoning has often been criticised as enabling polygamy by leaving a small lacuna in the ceremony, but the Court has continued to insist on strict proof.

Bigamy and conversion — the Sarla Mudgal line

The most significant decision in the bigamy field is Sarla Mudgal v. Union of India, AIR 1995 SC 1531, followed and clarified in Lily Thomas v. Union of India, AIR 2000 SC 1650. A married Hindu husband contracted a second marriage after embracing Islam and claimed the protection of Muslim personal law. The Supreme Court held that mere conversion did not automatically dissolve his first marriage. The first Hindu marriage continued to subsist, and the second marriage was therefore void under Section 17 of the Hindu Marriage Act read with Section 494 IPC. The husband was guilty of bigamy. The reasoning carries undisturbed into Section 82(1) BNS — conversion is not a defence to a charge of bigamy where the first marriage was solemnised under a personal law that does not permit polygamy. The cognate general-definitions framework of Section 2 BNS on terms like "voluntarily" and "dishonestly" supplies the mens rea threshold for the offences in this cluster.

The bigamy exception — seven-year absence

The Exception to Section 82(1) BNS retains the IPC formula. The section does not extend to a person whose first marriage has been declared void by a competent court, nor to a person whose first spouse has been continually absent for the space of seven years and not heard of as alive within that time, provided the new spouse is informed of the real state of facts before the marriage. The seven-year absence rule is the criminal-law mirror of the doctrine of presumed death. It operates to protect a spouse who has remarried in good faith after the long absence of the first spouse. The Supreme Court in Krishna Gopal Divedi v. Prabha Divedi, AIR 2002 SC 389, treated an ex parte divorce that was later set aside as a defence to bigamy — at the time of the second marriage the divorce was operative, and a subsequent setting-aside cannot retrospectively make the second marriage criminal.

Bigamy with concealment — Section 82(2) BNS

Section 82(2) BNS reproduces Section 495 IPC and is an aggravated form of bigamy. The aggravation is the concealment of the first marriage from the new spouse. The maximum is ten years, three years more than Section 82(1) BNS's seven. The Supreme Court in A. Subhash Babu v. State of A.P., AIR 2011 SC 3031, held that the new wife is an "aggrieved person" within the meaning of Section 198 of the predecessor Code (now Section 218 BNSS) and may file the complaint herself, even before she has obtained a declaration of voidness under Section 11 of the Hindu Marriage Act. The reasoning gives the deceived second spouse standing to prosecute, which had earlier been a contested point.

Fraudulent marriage ceremony — Section 83 BNS

Section 83 BNS punishes the dishonest or fraudulent participation in a marriage ceremony with the knowledge that one is not thereby lawfully married. The two ingredients are: dishonestly or fraudulently going through the ceremony, and knowledge that one is not lawfully married thereby. The section punishes the mock or sham marriage — a ceremony staged to give the appearance of marriage without any intention or capacity to enter into a valid marriage. Unlike Section 81 BNS it does not require deceit of the woman or cohabitation; the ceremony itself, performed with the requisite mens rea, is enough. Unlike Section 82 BNS it does not require a previous subsisting marriage; the fraudulent character of the ceremony is enough on its own.

The relationship between Sections 82 and 83 BNS turns on the accused's intention. If the accused intended a valid marriage and went through the necessary ceremonies during the lifetime of the existing spouse, Section 82 BNS applies. If the accused intended only a show of marriage and went through the ceremony fraudulently knowing it would not produce a valid marriage, Section 83 BNS applies. The two sections are mutually exclusive on the conceptual plane but are sometimes charged in the alternative where the prosecution is uncertain about the accused's true intention — Kailash Singh v. State of Rajasthan, 1982 Cr LJ 1005 (Raj).

Enticing a married woman — Section 84 BNS

The three ingredients of Section 84 BNS were set out in Alamgir v. State of Bihar, AIR 1959 SC 436. First, taking or enticing away or concealing or detaining the wife of another man. Second, the taking, enticing, concealing or detaining must be with intent that she may have illicit intercourse with any person. Third, the accused must know or have reason to believe that the woman is the wife of another man. The maximum is two years and fine.

The expression "detains" was read by the Supreme Court in Alamgir as not requiring physical force. Persuasion, allurement, blandishment — anything that operates as a keeping-back of the woman from her husband — qualifies. The reach is therefore wide. The textual excision in the BNS — dropping the words "from that man or from any person having the care of her on behalf of that man" — broadens the section further. The earlier IPC text had been read narrowly to require that the wife be taken away from a person who had her actual care or custody on behalf of the husband. The BNS removes that limiting clause. Enticement of a married woman from any place will now attract Section 84 BNS, provided the other two ingredients are made out.

Adultery — Joseph Shine and the BNS omission

The most striking absentee in this cluster is the offence of adultery. Section 497 IPC criminalised sexual intercourse by a man with the wife of another man without the consent or connivance of that other man, with the wife being expressly excluded from punishment as an abettor. The Supreme Court in Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618, had upheld the constitutional validity of the section, but a Constitution Bench in Joseph Shine v. Union of India, AIR 2018 SC 4898, decriminalised adultery and struck the section down as violative of Articles 14, 15 and 21. The Court held that treating adultery as a crime was an immense intrusion into the privacy of the matrimonial sphere, that the section's gendered structure (only the man punishable, the wife treated as the husband's chattel) violated equality, and that the act was better left as a ground for divorce.

The BNS, drafted in 2023, did not include any equivalent of Section 497 IPC. The drafting choice respected the constitutional position settled in Joseph Shine and avoided the temptation to re-introduce a recast version of the offence. Adultery now sits entirely in the civil-law domain — as a ground for divorce under the personal-law statutes (and under Section 27 of the Special Marriage Act), and as a factor in the determination of maintenance and custody. It is no longer a criminal offence. The cognate offence of Section 85 BNS on cruelty remains available where adultery is part of a wider pattern of matrimonial cruelty driving the wife to grave injury or suicide.

Procedure — Section 218 BNSS / Section 198 CrPC

Section 218 BNSS (previously Section 198 CrPC) restricts cognizance of the offences in this cluster. No court may take cognizance of an offence under Sections 81 to 84 BNS except upon a complaint by some person aggrieved. Where the aggrieved person is the wife and is unable to file the complaint, the section permits the complaint to be filed on her behalf by a specified set of relatives — father, mother, brother, sister, son, daughter, or with leave of the court by any other person related to her by blood, marriage or adoption. The procedural restriction reflects the legislative judgment that prosecutions in this cluster should be initiated only by the aggrieved family and not by strangers.

An exception to the bar arises where the bigamy or related offence is also linked with a cognizable offence under the matrimonial-cruelty cluster. The Supreme Court in Ushaben v. Kishorbhai Chunilal Talpada, (2012) 6 SCC 353, held that where a complaint contains allegations under both Section 498A IPC (a cognizable offence) and Section 494 IPC (a complaint-only offence), the magistrate may take cognizance of both even on a police report under what was then Section 155(4) of the predecessor Code. The reasoning carries into the BNS framework where Section 85 BNS is the cognizable parallel.

Defences and the no-defence bar

The Supreme Court in Narantakath v. Parakkal, (1922) 45 Mad 986, established the long-standing rule that good faith and mistake of law are no defences to a charge of bigamy. A person who marries a second time in the genuine belief that personal law permits the marriage is not on that account excused. The cognate general exceptions framework of Sections 14 to 44 BNS applies in principle, but the mistake-of-fact defence under Section 14 BNS is rarely available because the relevant fact — the existence and validity of the first marriage — is one the accused is presumed to know. The mistake-of-law defence is barred outright.

The seven-year absence exception to Section 82(1) BNS is the principal statutory defence, with three preconditions. The community-custom defence — that the parties belong to a tribe whose personal law permits polygamy — was accepted in Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938, but only on proof of a custom of polygamy in the community; the burden of proving the custom lies on the defence. The cognate offence of Section 61 BNS on criminal conspiracy may be added where the bigamous marriage was a coordinated scheme involving family members or a priest who knowingly performed the ceremony, and Section 45 BNS on abetment may be added against any third party who facilitated the offence.

Sentencing patterns

Sentencing in this cluster is moderate. Section 84 BNS carries up to two years. Section 82(1) BNS carries up to seven years; Section 82(2) BNS carries up to ten years for the aggravated form with concealment. Section 81 BNS carries up to ten years; Section 83 BNS carries up to seven. Trial courts typically impose between one and three years for bigamy where the second marriage produced no other harm; the maximum is reserved for cases where the second wife was deceived as to the existence of the first marriage and where there is evidence of cruelty or property fraud. The wider sentencing framework of Sections 4 to 13 BNS applies; community service under Section 4(f) BNS is not available because each section in the cluster prescribes imprisonment.

Cognate offences and the wider matrimonial-fraud field

The cluster intersects with several other BNS provisions. the deceitful-means offence under Section 69 BNS overlaps with Section 81 BNS where the deceit was a false promise of marriage that did not amount to inducing a belief in an existing marriage. the rape provision under Section 63 BNS overlaps with Section 81 BNS in the impersonation-of-husband fact pattern. Sections 80, 85 and 86 BNS on dowry death and cruelty are charged in parallel where the bigamous or fraudulent marriage produced cruelty against either wife. The cheating provisions of Sections 318 to 322 BNS may be invoked where the deceit produced a property loss to the deceived spouse or to her family — a dowry given in connection with a sham marriage is a classic instance. The picture is a tightly integrated criminal-law field in which a single fact pattern can produce four or five concurrent charges.

Exam angle and quick recap

For any objective question on this cluster, the four anchors are: the four-fold ingredients of bigamy in Pashaura Singh; the Sarla Mudgal–Lily Thomas line that conversion is not a defence; the BNS folding of Sections 494 and 495 IPC into Section 82 BNS as two sub-sections; and the BNS omission of adultery following Joseph Shine. For prelims-style questions the most often-tested points are the Exception to Section 82(1) BNS (seven-year absence with information to the new spouse), the requirement of strict proof of ceremonial validity for the second marriage, and the standing rule that the second wife is an "aggrieved person" under Section 218 BNSS. For mains-style answers the policy debate around the proof-of-marriage rule and the policy choice to drop adultery from the BNS are the headline reform points.

Frequently asked questions

Why does the BNS not include any provision on adultery?

Because the Constitution Bench of the Supreme Court in Joseph Shine v. Union of India, AIR 2018 SC 4898, struck down Section 497 IPC as violative of Articles 14, 15 and 21. The Court held that treating adultery as a crime was an immense intrusion into the privacy of the matrimonial sphere; that the section's gendered structure (only the man punishable, the wife treated as the husband's chattel) violated equality; and that the act was better left as a ground for divorce. The BNS, drafted in 2023, respected the constitutional position and did not re-introduce any recast version of the offence.

Is conversion to Islam a defence to a charge of bigamy under Section 82(1) BNS?

No. The Supreme Court in Sarla Mudgal v. Union of India, AIR 1995 SC 1531, and again in Lily Thomas v. Union of India, AIR 2000 SC 1650, held that mere conversion does not automatically dissolve the first marriage. A Hindu husband who converts to Islam and contracts a second marriage during the subsistence of the first marriage is guilty of bigamy under Section 17 of the Hindu Marriage Act read with Section 494 IPC (now Section 82(1) BNS). The reasoning has been carried unchanged into the BNS framework.

What is the difference between Sections 82(1) and 83 BNS?

The two sections turn on the accused's intention. Section 82(1) BNS applies where the accused intended a valid marriage and went through the necessary ceremonies during the lifetime of the existing spouse. Section 83 BNS applies where the accused intended only a show of marriage and went through the ceremony fraudulently knowing that it would not produce a valid marriage. The two are mutually exclusive on the conceptual plane but are sometimes charged in the alternative where the prosecution is uncertain about the accused's true intention. Section 83 BNS does not require a previous subsisting marriage; Section 82(1) BNS requires it.

Can the second wife herself file a complaint of bigamy against her husband?

Yes. The Supreme Court in A. Subhash Babu v. State of A.P., AIR 2011 SC 3031, held that until a declaration of voidness is made by a competent court, the woman with whom the second marriage was solemnised continues to be a 'wife' within the meaning of Section 494 IPC and is therefore an 'aggrieved person' under Section 198 of the predecessor Code (now Section 218 BNSS). The reasoning expanded the standing to file the complaint to the deceived second wife herself, removing the earlier doubt about whether she could prosecute her bigamous husband.

Why does proving a Hindu second marriage for bigamy require evidence of saptapadi?

Because the Supreme Court in Kanwal Ram v. H.P. Administration, AIR 1966 SC 614, held that the prosecution must prove the essential ceremonies of the second marriage — for a Hindu marriage governed by Section 7 of the Hindu Marriage Act, that includes saptapadi (the seven steps before the sacred fire) and homam. Mere registration under the Special Marriage Act, or admission of the marriage by the accused, is not enough. The reasoning is the strict-construction rule applied to penal provisions and the textual force of 'solemnised' in Section 17 of the Hindu Marriage Act. The rule has been criticised as enabling polygamy by leaving a small lacuna in the ceremony.