Second Husband In Void Marriage Cannot Be Prosecuted For Dowry Death Under Section 80 BNS: Allahabad High Court

"Word 'husband' in section 80 BNS as well as Section 85 B.N.S. will cover person only when he is legally married to a women, not the person whose marriage is itself void." Allahabad High Court, in a significant ruling dated July 22, 2026, held that a man whose second marriage is void because his first wife is alive cannot be prosecuted as a "husband" for dowry death and cruelty under Sections 80 and 85 of the Bharatiya Nyaya Sanhita (BNS), 2023.

A bench of Justice Arun Kumar Singh Deshwal observed that penal statutes must be strictly interpreted in favour of the accused, and the presumption of dowry death applies only to legally wedded husbands.

The applicant, Sarvesh alias Chhotu, approached the High Court seeking bail in a case registered under Sections 85 and 80(2) of the BNS and Sections 3/4 of the Dowry Prohibition Act. The counsel for the applicant argued that the deceased was his second wife, and since the marriage was performed while his first wife was still alive, the second marriage was legally void. Consequently, it was argued that he did not fall within the definition of a "husband" to attract the presumptions of dowry death under the new criminal laws.

The primary question before the court was whether any person who performed a second marriage during the lifetime of his first wife would come within the definition of "husband" for the purpose of Sections 80 and 85 of the BNS with regard to the second wife.

Strict Interpretation Of Penal Statutes

Analyzing the provisions of dowry death and cruelty under the BNS, the court noted that the cruelty or harassment must be caused by the "husband or his relatives" in connection with a demand for dowry. The court emphasised that since the BNS and Section 118 of the Bharatiya Sakshya Adhiniyam (BSA) are penal in nature, they require a strict interpretation. Citing Supreme Court precedents, the bench reiterated that the scope of a penal provision cannot be artificially extended by reading into it words that do not exist.

The court referenced apex court decisions like M/s. Balaji Traders v. State of U.P. and Tolaram Relumal v. State of Bombay to reinforce that when there are two possible views regarding a penal statute, the court must lean towards the construction which exempts the subject from penalty.

Conflict Between Precedents Resolved

The State had relied upon the 2004 Supreme Court judgment in Reema Aggarwal v. Anupam, which adopted a purposive construction to include persons in invalid marriages within the ambit of "husband" under Sections 304B and 498A IPC. However, the High Court observed that a subsequent three-judge bench of the Supreme Court in Shivcharan Lal Verma v. State of MP (2007) took a contrary view, holding that a prosecution under Section 498A is not maintainable if the marriage itself is null and void.

The High Court held that the larger bench decision in Shivcharan Lal Verma, which was later reiterated in P. Sivakumar v. State (2023), must prevail. Therefore, a person living with a woman in a void second marriage will not fall within the premises of "husband" for the purposes of dowry death and cruelty under the BNS.

Court Explains Exception For Concealed Marriages

Despite laying down the strict interpretation rule, the court carved out a crucial exception. It clarified that if a person performs a second marriage without disclosing his validly married living spouse, and the second wife remains unaware of this fact until the commission of the offence, he will still be deemed a husband. The court stressed that an accused cannot be allowed to take advantage of his own wrong in such deceptive circumstances.

"When a person performed second marriage to a woman without disclosing his validly married living spouse and continued to live with his second wife as her husband and second wife is also not aware about this fact... he will be deemed as husband... as he can not be allowed to take advantage of his wrong."

The court also clarified that second marriages performed during the subsistence of a first marriage are void under statutes such as the Hindu Marriage Act, Special Marriage Act, Christian Marriage Act, and Parsi Marriage and Divorce Act. However, under Muslim personal law, a second, third, or fourth marriage is valid, and the man would squarely fall under the definition of a husband for Sections 80 and 85 of the BNS.

Application To The Present Case

Applying these legal principles to the bail plea at hand, the court observed that the first informant had explicitly admitted that the applicant's marriage with the deceased was his second marriage, solemnized during the subsistence of his first marriage, and that the first wife was residing with them. Because both parties were aware of the first living wife, the marriage was strictly void, and the applicant could not be defined as a husband under the BNS.

Noting that the applicant had no criminal history and the charge sheet had already been filed, the court found no justification for further custodial interrogation. Consequently, the High Court allowed the bail application and directed the release of the applicant on a personal bond with two sureties, subject to strict conditions against tampering with evidence.

Date of Decision: 22 July 2026