Void Second Marriage & Meaning of "Husband"

Source: Allahabad High Court 

Why in News? 

A Single Judge Bench of Justice Arun Kumar Singh Deshwal, in Sarvesh Alias Chhotu Alias Chhotelal v. State of UP (2026), held that a man whose second marriage is void owing to the subsistence of his first marriage cannot ordinarily be treated as a "husband" for the purposes of Sections 80 and 85 BNS, while carving out exceptions where the validity of the first marriage is doubtful, where the second wife was induced by concealment of the subsisting marriage, or where the marriages are valid under Muslim Personal Law. 

What was the Background of Sarvesh Alias Chhotu Alias Chhotelal v. State of UP (2026) Case? 

• The applicant's second wife had allegedly died by suicide, and he was charged under Section 80(2) BNS (dowry death), Section 85 BNS (cruelty), and Sections 3 and 4 of the Dowry Prohibition Act. 
• The applicant sought bail, contending that the deceased was his second wife, that his second marriage had been performed while his first marriage was still subsisting, that the second marriage was therefore void, and that he could accordingly not be treated as a "husband" for the purposes of the above penal provisions. 
• The Court framed the legal question of whether a person who performed a second marriage during the lifetime of his first wife would fall within the definition of "husband" for the purposes of Sections 80 and 85 BNS with regard to the second wife. 

What were the Court's Observations? 

• On the scope of Sections 80 and 85 BNS: The Court examined the provisions alongside the definition of "dowry" under the Dowry Prohibition Act and the Supreme Court's rulings in Reema Aggarwal v. Anupam (2004), Shivcharan Lal Verma v. State of Madhya Pradesh (2002), and P. Sivakumar v. State (2023). 
• On the conflict in precedent: The Court noted that while Reema Aggarwal had adopted a purposive interpretation to bring women in void marriages within the protective ambit of Sections 498-A and 304-B IPC, a later three-Judge Bench decision in Shivcharan Lal Verma, followed in P. Sivakumar, held that prosecution under Section 498-A IPC is not maintainable where the marriage itself is null and void. 
• On strict interpretation of penal provisions: Relying on Shivcharan Lal Verma and the Allahabad High Court's decision in Akhilesh Kesari v. State of U.P., the Court held that Sections 80 and 85 BNS are penal provisions requiring strict interpretation, and that the presumption of dowry death under Section 80 BNS (corresponding to Section 304-B IPC), read with Section 118 BSA, must be construed in a manner favourable to the accused. 
• On the meaning of "husband": The Court accordingly held that "husband" under Sections 80 and 85 BNS covers a person only where he is legally married to the woman, and not a person whose marriage with her is itself void. 
• On the exceptions carved out: The Court clarified that the above principle would not apply in two situations — first, where there is doubt about the validity of the first marriage, a person living as "husband" in the alleged second marriage would still be covered; and second, where a person contracted a second marriage without disclosing his subsisting valid marriage and continued living with the second wife as her husband, with the second wife unaware of the concealment till commission of the offence, he would still be deemed a "husband" since he cannot be permitted to take advantage of his own wrong. 
• On personal law variations: The Court noted that a second marriage during the subsistence of a first marriage is void under the Special Marriage Act, the Foreign Marriage Act, the Christian Marriage Act, the Parsi Marriage and Divorce Act, and the Hindu Marriage Act. It distinguished marriages under Muslim Personal Law, observing that where a marriage is performed as per Sharia law, a second, third, or fourth marriage is also valid, and a Muslim man living as husband with any such wife would fall within the definition of "husband" under Sections 80 and 85 BNS. 
• On relief granted: Noting that the applicant's second marriage was void owing to the subsistence of his first marriage, the Court granted him bail. 

What are Sections 80 and 85 of the Bharatiya Nyaya Sanhita, 2023? 

Section 80 BNS – Dowry Death: 

Provision: 

• Where a woman's death is caused by burns, bodily injury, or occurs otherwise than under normal circumstances, within seven years of her marriage, and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry — such death is termed "dowry death," and the husband or relative concerned is deemed to have caused her death. 
• Explanation: "Dowry" carries the same meaning as under Section 2 of the Dowry Prohibition Act, 1961. 
• Punishment: Imprisonment for not less than 7 years, extendable to imprisonment for life. 

BNSS Classification: 

• Cognizable 
• Non-bailable 
• Triable by Court of Session 

Section 85 BNS – Cruelty by Husband or Relative of Husband: 

Provision: 

• Whoever, being the husband or relative of the husband of a woman, subjects her to cruelty shall be punished. 
• Punishment: Imprisonment up to 3 years, along with fine. 

BNSS Classification: 

• Cognizable, but only if information is given to the officer in charge of a police station by the aggrieved woman herself, or by a relative of hers by blood, marriage, or adoption, or, in absence of such relative, by a public servant of a notified class/category. 
• Non-bailable 
• Triable by Magistrate of the First Class