Can’t prosecute 2nd wife for abetment to bigamy simply for marrying the man: HC

The Bombay high court said there was absolutely no whisper in the complaint on how the second wife aided or instigated the husband to remarry and thereby abetted him in the offence

MUMBAI: A woman cannot be prosecuted for abetment to bigamy merely on the ground that she is the second wife of a man facing bigamy charges, the Bombay high court has said in a recent ruling as it cancelled the charges against a Vikroli resident and her father.

Mumbai: Justice Makarand Karnik of the Bombay high court delivered the ruling in the case on January 3 (HT FILE PHOTO/Bhushan Koyande)

“The only assertion in the complaint is about the husband marrying the second wife during the subsistence of the first marriage,” justice Makarand Karnik said in her verdict. “The mere assertion of performing a second marriage is not sufficient to proceed against the applicants without there being any allegation making out a case of abetment,’ the single bench said.

A copy of the verdict dated January 3 was uploaded to the high court’s website on Wednesday.

The case relates to a metropolitan magistrate’s court at Vikroli issuing process against the woman, her father and her ‘husband’ in November 2007 following a complaint by the man’s first wife.

The complainant said that she married the man in March 1990 and three daughters were born out of the marriage. She alleged that her husband ill-treated her and forced her out of the house in July 2005. Three months later, she learnt that her husband had remarried during the subsistence of his first marriage with her.

Based on the first wife’s complaint, the magistrate issued process to prosecute her husband for bigamy under Section 494 of the Indian Penal Code) and the second wife and her father for abetment under Section 109 of the IPC.

This prompted the second wife and her father to approach the high court to challenge the magistrate’s order. Their petition was opposed by the prosecution who argued that the woman was liable for abetment to commit bigamy since she was the ‘second wife’.

Justice Karnik, however, struck down the prosecution of the father-daughter duo, observing that the complaint was completely devoid of material disclosing ingredients of the offence of abetment against the applicants.

The court said the prosecution against the husband, the principal offender in the case, could continue. “However, there is absolutely no whisper in the complaint as to in what manner the applicants have aided or instigated the husband and thereby abetted him in the commission of the offence,” justice Karnik said.