Second Marriage and Bigamy Under Section 82 BNS: How Lucknow Courts Handle It

Section 82 replaces the old bigamy provisions of the Indian Penal Code without changing their substance. There are two limbs:

• Section 82(1): Whoever, having a husband or wife living, marries again where that marriage is void by reason of the earlier marriage subsisting. Punishment: imprisonment up to seven years plus fine.
• Section 82(2): The same offence, but the accused concealed the existence of the first marriage from the new spouse. Punishment: imprisonment up to ten years plus fine.

The word void is the hinge. Section 82 only bites where the second marriage is void because a prior marriage subsists. For Hindus, Section 5 read with Section 11 of the Hindu Marriage Act, 1955 makes such a marriage void. The provision does not apply to communities whose personal law permits plural marriage, which is why the offence is almost always charged against Hindus, Christians, Parsis and, after conversion cases, converts who claim a change of religion.

The single most important fact for anyone accused of or complaining about bigamy in Lucknow is this: the second marriage must be proved to have been solemnised with the essential religious ceremonies applicable to the parties. The Supreme Court settled this decades ago and it remains binding law.

In Bhaurao Shankar Lokhande v. State of Maharashtra (AIR 1965 SC 1564), the Court held that a marriage is not solemnised unless performed with the proper ceremonies and in due form; without invocation before the sacred fire and saptapadi (where those are the required rites), there is no valid second marriage and therefore no bigamy. This was reaffirmed in Kanwal Ram v. Himachal Pradesh Administration (AIR 1966 SC 614), which held that in a bigamy trial the second marriage and its essential ceremonies must be strictly proved, and an admission of marriage by the accused is not enough.

The practical consequence at the Lucknow magistracy is that a complainant who files only wedding photos, a hotel register, or witnesses who saw the couple exchange garlands often fails, because none of that establishes saptapadi or the fire ritual. This is very different from a maintenance claim, where a woman living as a wife may still get relief regardless of ceremony. If your dispute is really about financial support, our note on wife maintenance under Section 125 BNSS and the DV Act is the more relevant remedy.

Bigamy is not an FIR-and-arrest offence. Under Section 219 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the successor to Section 198 CrPC), a court cannot take cognizance of an offence under Sections 81 to 84 BNS except on a complaint made by the person aggrieved. That means:

• Only the first spouse can ordinarily set the law in motion for bigamy; a stranger, neighbour or NGO cannot file.
• Where the aggrieved wife cannot file herself, close blood relatives (father, mother, brother, sister, son, daughter) may complain on her behalf, and any other related person with the court's leave.
• The deceived second spouse is the aggrieved person for the concealment offence under Section 82(2).

Because the offence is non-cognizable, the complainant does not go to the police for an FIR. The correct route in Lucknow is a private complaint before the Judicial Magistrate First Class under Section 223 BNSS, followed by the complainant's statement and inquiry before the magistrate issues process. Bigamy complaints rarely travel alone; they are frequently filed together with a pending divorce petition, a domestic violence protection application, or a cruelty case, as part of the wider matrimonial dispute.

The table below sets out how the two limbs of Section 82 differ in punishment and procedure. The classification (non-cognizable, bailable, complaint-based) follows the First Schedule of the BNSS and mirrors the position under the old IPC.

Note that several web summaries wrongly describe Section 82 as cognizable and non-bailable. That is incorrect for the base offence and reflects confusion with unrelated provisions; the BNSS Schedule retains the old non-cognizable, bailable classification.

A recurring question is whether a Hindu husband who converts to Islam can take a second wife and escape Section 82. The answer is a firm no. In Sarla Mudgal v. Union of India (1995) 3 SCC 635, the Supreme Court held that conversion to Islam does not dissolve a subsisting Hindu marriage; a second marriage after such conversion is void, and the husband is liable for bigamy. This was expressly reaffirmed in Lily Thomas v. Union of India (2000) 6 SCC 224.

So the first marriage must first be legally ended, by a decree of divorce or nullity, before any fresh marriage. If it is not, the second marriage is void and the offence is complete. For clients weighing whether to pursue divorce first, our family and divorce practice page explains the routes, and the Allahabad High Court, Lucknow Bench is where writ and appellate challenges in these matters are heard.

In my experience before the Lucknow family and magistrate courts, a bigamy complaint is rarely the client's real objective. It is usually one lever in a larger matrimonial fight, filed alongside a maintenance claim under Section 125 BNSS or a domestic violence application, to build pressure toward a settlement.

When I defend a Section 82 accused, the first thing I examine is whether the complainant can actually prove the ceremonies of the alleged second marriage. Very often the evidence is a garland photograph and a temple visit, which under Bhaurao Lokhande and Kanwal Ram is legally insufficient. When I act for an aggrieved first wife, I tell her honestly that a bigamy conviction is hard to secure and slow, and that her maintenance and residence rights are frequently the faster, surer relief. On the concealment limb, Section 82(2), I look at what the second spouse was actually told, because concealment must be proved, not assumed.

My practical advice: do not treat a bigamy FIR attempt as a shortcut. It is a complaint case that will take years, and it should be built on ceremony evidence and marriage records from the outset, or defended on their absence. If you are facing or considering such a case, speak to us before you file or respond, so the strategy fits the real goal rather than the emotion of the moment.

Advocate Onkar Pandey practises before the Allahabad High Court, Lucknow Bench, and the district and family courts of Lucknow, handling criminal, matrimonial and property matters. He is enrolled with the Bar Council of Uttar Pradesh (enrolment no. UP 4825-1999) and advises clients across Lucknow on bigamy, maintenance, divorce and domestic violence litigation.

Chamber A-406, High Court, Lucknow, Awadh Bar Association, Uttar Pradesh 226001. Phone: +91 98392 71553. For a considered view on your matrimonial dispute, arrange a consultation.