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2026 Supreme(All) 1273
HIGH COURT OF JUDICATURE AT ALLAHABAD
ARUN KUMAR SINGH DESHWAL, J.
Sarvesh Alias Chhotu Alias Chhotelal - Applicant
Versus
State of U.P. - Opposite Party
CRIMINAL MISC. BAIL APPLICATION No. - 22566 of 2026
Decided On : 22-07-2026
For the Applicant : Suneel Kumar
For the Opposite Party : G.A.
In penal statutes like Sections 80 and 85 of the BNS, the term 'husband' is strictly interpreted to mean a legally wedded spouse; thus, a person in a void second marriage is not a 'husband' unless the second wife was deceived or the first marriage's validity is doubtful.
Headnote:The court analyzed Sections 80 and 85 of the Bharatiya Nyaya Sanhita (BNS) and Section 2 of the Dowry Prohibition Act, 1961, in a bail application where the applicant contended that his second marriage, performed during the subsistence of a first marriage, was void, thus excluding him from the definition of 'husband'. The court found that the applicant's marriage was indeed void as the first wife was alive and residing with them. The central issue was whether a person who performs a second marriage during the lifetime of the first wife falls within the definition of 'husband' for the purpose of Sections 80 and 85 of the BNS. The court reasoned that penal provisions must be strictly interpreted and, following the precedent of a three-judge bench of the Apex Court, held that a void marriage does not establish the status of 'husband' for these sections, unless the second wife was unaware of the first marriage or the first marriage's validity is in doubt. Accordingly, the present application is allowed.
JUDGMENT :
ARUN KUMAR SINGH DESHWAL, J.
1. Heard Mr. Suneel Kumar, learned counsel for the applicant, Ms. Mayuri Mehrotra, learned State Law Officer for the State, Mr. Rakesh Kumar Mishra, learned A.G.A. for the State and perused the record.
2. The instant bail application has been filed with a prayer to release the applicant on bail during the trial in Case Crime No.24 of 2026, under Sections 85, 80(2) of BNS and Section 3/4 of the Dowry Prohibition Act, Police Station-Madhautanda, District-Pilibhit.
3. This matter was heard on 06.07.2026, on that date, counsel for the applicant submitted that the deceased was his second wife as the marriage was performed with the deceased during subsistence of earlier marriage and his first wife was also alive, therefore, second marriage was void, therefore, the applicant will not come in the definition of husband, therefore, definition of Section 80 of BNS as well as presumption of Section 118 of the BSA are not attracted against the applicant, therefore, the applicant is entitled to be released on bail.
4. Considering the above submission, a preliminary legal issue was framed whether a person who performed a second marriage during the lifetime of the first wife would come within the definition of husband for the purpose of Section 80 BNS as well as Section 118 of BSA. On that date, considering the legal issue, this Court directed Mr. Rakesh Kumar Mishra, learned A.G.A. as well as Ms. Mayuri Mehrotra, learned State Law Officer to prepare the case and address the Court on the issue on the next date.
5. Today, Ms. Mayuri Mehrotra, learned State Law Officer submitted that this issue was considered by Karnataka High Court in Criminal Application under Section 528 No.8134 of 2024 (Dr. Lokesh B H vs. State of Karnataka), wherein the Court after framing the specific issue whether an offence under Section 498-A could be committed only a valid marriage, relationship or could it be committed or void or voidable marriage or relationship in the nature of marriage like live in relationship.
6. The Hon'ble Single Bench of the Karnataka High Court, after considering the issue, observed that the expression of husband under Section 498-A cannot formed again in a legal marriage to extent to enter into a marital relationship, which is void for voidable as also to live in relationship, which bears the attributes of marriage so long as essential ingredients of cruelty as defined in section are satisfactory. This judgment of the Karnataka High Court was challenged before the Apex Court through SPL Criminal No. 2240-2241 of 2026. The Apex Court, by order dated 13.02.2026, stayed the order of the Karnataka High Court; the matter was heard on 28.05.2026, and judgment was reserved.
7. Ms. Mehrotra further relied upon the judgment of a co-ordinate Bench of this Court in 482 No.27734 of 2024, wherein the court observed that the husband who performed a second marriage during the lifetime of his first wife will also come within the definition of husband for the purpose of Section 498-A. In this judgment, the co-ordinate bench of this Court also relied upon the judgment of the Apex Court in the case of Reema Aggarwal v. Anupam and others (2004) 3 SCC 199.
8. Mr. Rakesh Kumar Mishra, learned A.G.A., also submitted that two husbands have not been defined in statute; however, domestic relationship has been defined under Section 2(f) of the Prevention of women from Domestic Violence Act 2005 (hereinafter will be referred as Domestic violence Act) and as per the definition, even if a person male or female has been residing in share household and related by marriage or through relationship in the nature of marriage. This shows that even if two persons are living together in a void marital relationship, they will be treated as husband and wife for the purpose of Section 80 BSA 2023. They will be treated as husband and wife. Section 2(f) of the Domestic Violence Act is quoted as under:
"domestic relationship means a relationship between t
