Cognizance of alleged offence of bigamy cannot be taken on a complaint at the instance of the second wife if she knew about her husband's first wife at the time of marriage, holds the Bombay High Court

In a significant ruling, the Bombay High Court has held that cognizance of offence of bigamy cannot be taken on a complaint at the instance of the second wife if she knew about her husband's first wife at the time of marriage.

The case involved one Kishor Rambhau Mandalik, 45, alias Dada Maharaj whose second wife had lodged a complaint with the police in November 2012 under the Indian Penal Code for the offences of cheating and bigamy. She had alleged that Mandalik had lured her into marriage on the promise that he was in the process of getting a divorce. However, within a week of the wedding, he allegedly abandoned her, claiming he dreamt of his father warning him that if they remained in wedlock, it would bring them both misfortune. After investigation, the police had laid a charge sheet before the jurisdictional magistrate’s Court against him.

The Magistrate, an an application filed by Mandalik, granted him an order of discharge on the ground of bigamy, retaining only the charge of cheating against him.  

Bombay High Court

Aggrieved by the order of discharge passed by the Magistrate’s Court, the state government then challenged the magistrate's order before the Sessions Court. The Sessions Court set aside the order of discharge passed by the Magistrate, following which Mandalik then challenged the order of the Sessions Court before the Bombay High Court. 

The Bombay High Court, considering Mandalik’s appeal from the order of the Sessions Court, found that the second wife, in her FIR, said she was aware of Mandalik's first marriage when she married him. It noted: "The learned magistrate rightly took a view that she could not be treated as an 'aggrieved person', and therefore, in view of the provisions of section 198 of the Code of Criminal Procedure, the cognizance of the alleged offence could not be taken at her instance."

Terming the order of the sessions judge as "patently incorrect", the Bombay High Court set aside the order, observing that the order of the magistrate was "well reasoned".

"When cognizance of the offence punishable under section 494 of the IPC could not have been taken at all on the complaint of the second wife, who was aware of the first marriage, the question of taking such cognizance on the basis of a police report, on the ground that the case was a police case, was not proper," held the Bombay High Court, while allowing the appeal filed by Mandalik.