IPC 494 in the new BNS 2023

If you have been named in an FIR or notice under this section, the section number alone does not decide the outcome — the facts, the evidence and the procedure do. Many cases turn on procedural lapses, bail strategy and the exact ingredients of the offence.

Bigamy applies where a person marries again while a previous marriage is subsisting, and the offence depends on the second marriage being void for that reason. Under the BNS it sits at Section 82(1). Its practical difficulty is not the law but the proof: the prosecution must establish that the second marriage was actually performed with the ceremonies that make a marriage valid.

What the section requires

For the offence to be made out, these ingredients have to be established:

• the accused had a husband or wife living
• the accused married again during the lifetime of that spouse
• the second marriage was void by reason of it taking place during the life of the first spouse
• the first marriage was itself valid and subsisting at the time of the second

What changed from the IPC

The offence and the punishment are carried over from IPC 494 without substantive change: imprisonment of either description which may extend to seven years, together with a fine. The aggravated form, where the person concealed the fact of the former marriage from the person with whom the subsequent marriage was contracted, is retained at Section 82(2) and carries up to ten years with a fine. The exceptions are also carried over: the section does not extend to a person whose marriage has been declared void by a court of competent jurisdiction, nor to a person whose spouse has been continually absent and not heard of as being alive for seven years, provided that fact is disclosed to the person with whom the subsequent marriage is contracted.

How this section is distinguished from related offences

Whether the offence applies at all depends on personal law, since the second marriage must be void by reason of the first subsisting. That is the position under the Hindu Marriage Act 1955, the Special Marriage Act 1954, the Indian Christian Marriage Act and the Parsi Marriage and Divorce Act. Where the personal law permits more than one marriage, the second marriage is not void on that ground and the offence is not made out. The distinction from Section 82(2) is concealment: where the former marriage was concealed from the second spouse, the punishment rises to ten years. Where a false representation induced the second marriage, cheating under Section 318 may also apply, and where the second spouse was deceived about the accused's identity or status, the sexual offence provisions may be engaged.

How the case proceeds

The offence is non-cognizable, bailable and compoundable, and it is triable by a magistrate. Importantly, a court cannot take cognizance except on a complaint made by the person aggrieved or, in specified circumstances, by certain relatives — a police FIR alone is not the route. In practice these cases usually arise alongside matrimonial proceedings for divorce, maintenance or restitution, and they are frequently used as leverage within those.

Evidence that usually decides these cases

The essential ceremonies are what must be proved, and this is where the great majority of these prosecutions fail. Evidence comes from the priest or officiant, the witnesses to the ceremony, photographs and video of the ritual itself rather than of a reception, invitation cards, and the marriage register where one exists. The first marriage must also be proved as valid and subsisting, through the marriage certificate or the same kind of ceremonial evidence, and through the absence of any decree dissolving it. Documents in which the accused described their marital status — insurance nominations, employment records, passport applications, school admission forms for children — are frequently used to establish the subsistence of the first marriage and any concealment.

How courts approach sentencing

Imprisonment of either description which may extend to seven years, together with a fine, under Section 82(1). Where the former marriage was concealed from the person with whom the subsequent marriage was contracted, up to ten years with a fine under Section 82(2). The offence is compoundable, and a substantial proportion of these cases are resolved as part of an overall matrimonial settlement.

Defences that commonly apply

Failure to prove the essential ceremonies is the most frequently successful defence and should be the first thing examined. Establishing that the first marriage was itself void or had been dissolved by a decree before the second took place is a complete answer, as is the statutory exception where a spouse has been continually absent and unheard of for seven years and that fact was disclosed. Where the applicable personal law permits more than one marriage, the second marriage is not void on that ground and the offence is not made out. On procedure, an absence of the complaint required for cognizance is a threshold answer. Delay, and the filing of the complaint only after matrimonial proceedings turned adverse, is routinely relied on.

How a case under this section typically progresses

The case proceeds on a complaint before a magistrate rather than through police investigation, and the magistrate examines the complainant before deciding whether to issue process, which is the first opportunity to resist. Trial follows as a warrant case. Because the offence is compoundable and almost always accompanies divorce or maintenance proceedings, a large proportion of these matters end in settlement, and the criminal case is frequently withdrawn as part of it.

Documents worth gathering early

Assemble the evidence of the first marriage — the marriage certificate, ceremonial photographs, invitation card and the details of the officiant and witnesses — and any decree of divorce or nullity with its exact date, since the sequence relative to the second marriage is decisive. For the second marriage, the same categories apply, and photographs or video of the ceremony itself, as distinct from a reception, are what the case turns on. Collect documents recording marital status over the relevant period, such as employment records, insurance nominations, passport applications and children's school records. Keep the pleadings from any divorce, maintenance or restitution proceedings, since those run alongside and positions taken in them are used here.

Note on bail and cognizability. Whether an offence is cognizable, and whether it is bailable, is set by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, not by the BNS section itself. Because that classification decides whether police can arrest without a warrant and how bail is approached, check it for your specific section with an advocate rather than relying on a general summary.

If you have been named under this section

The proof burden on the prosecution is the central practical fact. It is not enough to show that the accused lived with another person, described them as a spouse, or held a reception; the prosecution must prove that a marriage was solemnised with the essential ceremonies required by the applicable personal law, and Indian courts have consistently acquitted where that proof was absent. Establishing what ceremonies were performed, and by whom, is therefore the substance of the defence. Where a decree of divorce or nullity was obtained before the second marriage, that is a complete answer.

Common misunderstandings

"Living with another partner is bigamy."
It is not. The offence requires a second marriage solemnised with the essential ceremonies required by the applicable personal law, and cohabitation does not satisfy it.

"A registered marriage certificate is required."
Registration is evidence but the offence depends on solemnisation. Equally, the absence of registration does not defeat a prosecution where the ceremonies are proved.

"Police can register an FIR and investigate."
The offence is non-cognizable, and cognizance requires a complaint by the person aggrieved or, in specified circumstances, certain relatives.

"Conversion allows a second marriage."
The Supreme Court has held that conversion does not dissolve a subsisting marriage under the previous personal law, and a second marriage in such circumstances remains within the section.

Related BNS sections

• BNS 82 — Marrying again during the lifetime of a husband or wife
• BNS 318 — Cheating (IPC 420)
• BNS 84 — Enticing or taking away a married woman
• BNS 85 — Cruelty by husband or his relatives (IPC 498A)

Which code applies to your case

The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024, and the change is not retrospective. The date the offence is alleged to have been committed decides which code governs it. An offence alleged to have occurred on or after 1 July 2024 proceeds under the BNS. An offence alleged to have occurred before that date continues to be investigated, tried, appealed and punished under the IPC, even where the FIR was registered later. Cases from the transition period frequently cite both numbering systems, which is why the old section number remains worth knowing.

Named under this section? Ask the free AI Advocate →

General information for understanding the IPC→BNS change, not legal advice. The BNS restructured many offences — confirm the exact section, sub-section and punishment with a licensed advocate.