The Madras High Court has observed that a woman who marries a man without knowing that his earlier marriage is still subsisting cannot be prosecuted for bigamy under Section 82 of the Bharatiya Nyaya Sanhita (BNS).

Justice N Ramesh made the observation while granting anticipatory bail to Rajalakshmi, who was named as the second accused in a case alleging bigamy.

The Court noted that Section 82(1) of the BNS, which replaced Section 494 of the Indian Penal Code, applies to a person who marries again while having a living spouse.

“On the plain language of the (provision punishing bigamy), the offender is the person who already has a living spouse; a person who is herself unmarried and marries such a person, without knowledge of the subsisting marriage, does not thereby become an offender under Section 82,” the Court observed.

The Court, therefore, expressed doubts over whether the bigamy case could be maintained against Rajalakshmi. This was one of the factors considered while granting her anticipatory bail.

The case arose from a complaint filed by Mayakrishnan's first wife. She alleged that Rajalakshmi had married Mayakrishnan even though his marriage with her was still subsisting.

Rajalakshmi, however, claimed that Mayakrishnan had concealed his first marriage from her. She said that she was herself deceived by him and had been unnecessarily dragged into the matrimonial dispute between the couple.

The High Court clarified that whether Rajalakshmi was actually unaware of the first marriage would have to be examined during the investigation and, if required, at trial. However, at the anticipatory bail stage, the prosecution had not placed any material showing that she knew about the subsisting marriage.

The Court also questioned the applicability of Section 85 of the BNS, which deals with cruelty by a husband or his relatives. It observed that a woman who was allegedly deceived about a man's existing marriage would not, merely by marrying him, become a “relative of the husband” of his first wife.

“She and the de facto complainant occupy, on the petitioner’s case, the position of the two women deceived and wronged by the same man, not that of an accused and her victim,” the Court said.

The High Court also referred to a March 2026 judgment of the Calcutta High Court, which held that an offence under Section 82(2) of the BNS relating to concealment of an earlier marriage is non-cognisable and cannot be initiated through a police case. Such proceedings, it held, must be initiated through a complaint under Section 219 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Justice Ramesh, however, did not decide whether the present criminal proceedings could continue despite allegedly not following this procedure. The issue was left open for consideration at the appropriate stage.

The Court said this aspect only further supported its conclusion that custodial interrogation of Rajalakshmi was not necessary.

The High Court accordingly granted Rajalakshmi anticipatory bail subject to certain conditions.

Advocate S Parthibarajan appeared for Rajalakshmi, while Government Advocate R Rajasekaran represented the State.