Page No.# 1/12 GAHC010282592025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1620/2025 SHUMAR ALI S/O FALU SHEIKH VILL- TIAMARI PART-II P.O.TIAMARIP P.S. GAURIPUR DIST. DHUBRI, ASSAM VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:MABIA KHATUN (INFORMANT) D/O ABDUS SAMAD P.O. AM CO. ROAD P.S. AND DIST. DHUBRI ASSAM PIN- 78332 Advocate for the Petitioner : MR H R A CHOUDHURY, MR. SAYED SALIM AHMED,MS R DEKA Advocate for the Respondent : PP, ASSAM, MS. B SARMA (LEGAL AID COUNSEL FOR RESPONDENT NO. 2) Page No.# 2/12 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date - 05.06.2026 1. Heard Mr. H. R. A. Choudhury, the learned senior counsel assisted by Mr. S. A. Ahmed, the learned counsel for the petitioner. Also heard Mr. K. Baishya, the learned Additional Public Prosecutor for the State respondent as well as Ms. B. Sarma, the learned Legal Aid Counsel for the respondent No. 2. 2. This Criminal Petition under Section 528 of the BNSS, 2023 has been filed by the petitioner, namely, Shumar Ali, praying for quashing of the proceedings of PR Case No. 1071/2025 under Section 82(2)/83 of the BNS, 2023. 3. The facts relevant for consideration of the instant criminal petition, in brief, are that the respondent No.2, namely, Mabia Khatun, had lodged an FIR before the Officer-in-Charge of Gauripur Police Station on 04.08.2025, inter-alia, alleging that the petitioner, who is her husband, used to torture her after her marriage, and in this regard, she had earlier lodged an FIR against him under Section 498A of the Indian Penal Code and on the basis of the said FIR, Gauripur P. S. Case No.346/2025 was registered. 4. It is also alleged that during the subsistence of the marriage of respondent No.2 with the present petitioner, he married another lady on 04.08.2025. On receipt of the said FIR, Gauripur P. S. Case No.346/2025 was registered under Sections 85/318(4)/82(2)/83/49 of Page No.# 3/12 the BNS, 2023, and investigation was initiated. After completion of investigation, charge-sheet was laid against the present petitioner under Section 82(2)/83 of BNS, 2023. On the basis of the said charge sheet, PR Case No. 1071/2025 was registered and said case is pending before the Court of the learned Additional Chief Judicial Magistrate, Dhubri. 5. It is pertinent to mention herein that the further proceeding of the aforesaid PR Case was stayed by this Court by its order dated 07.01.2026. 6. Mr. H. R. A. Choudhury, the learned senior counsel for the petitioner submits that the Section 82 of the BNS, 2023, which is in pari-materia with Section 494 of the Indian Penal Code, provides that in the event of conducting a second marriage, a husband or wife shall be punished with imprisonment. In the event, “such marriage is void by reason of its taking place during the lifetime of such husband/wife”. He submits that the personal law applicable to Muslims does contemplate four marriages by a Muslim man. He submits that one of the essential ingredients for applicability of Section 82 of the BNS, 2023 is that the second marriage should be void. However, in the case of a Muslim man, such second marriage is not void and consequently, Section 82 of the BNS, 2023 is not attracted even if a Muslim man marries a second woman. In support of his submission, he has cited ruling of the High Court of Bombay in the case of Kalim Shaikh Munaf and Others Vs. The State of Maharashtra and others reported in 2022 SCC online, BOM 12036. Page No.# 4/12 7. He submits that since a second marriage by Muslim man is permissible under his personal law, the provision of Section 82(1) of the BNS, 2023 is not applicable and since such an act of marrying for the second time is not an offence under Section 82(1) of the BNS, 2023, even the provisions of Section 82(2) of the BNS, 2023 is not applicable and consequently, in the instant case, the provision of Section 83 of the BNS, 2023 is also not applicable. He, therefore, submits that continuation of the proceedings of PR Case No.1071/2025 would be an abuse of process of law and, therefore, he prays for quashing the said proceeding. 8. On the other hand, Ms. B. Sarma, the learned counsel for respondent No. 2 has submitted that the petitioner used to torture respondent No. 2 after her marriage with him and in this regard, a case under Section 498 A of Indian Penal Code has also been filed by the respondent No. 2. The said case is still pending. However, she fairly submits that the personal law applicable to the petitioner allows a Muslim man to have four wives at a time. She, however, submits that even if the Muslim man can marry more than one wife at a time, he is under obligation to intimate the second wife regarding existence of her first marriage and on failure to do so, he may be regarded as having committed offence under Section 82 (2) of the BNS, 2023. 9. She also submits that though, the petitioner had filed an application for restitution of conjugal rights with the respondent No. 2 before the Principal Judge, Family Court, Dhubri, however, after filing the said case, he had not pursued the same and the said case was dismissed due to non-prosecution by him. Page No.# 5/12 10. The learned counsel for the respondent No.2 submits that the fact as to whether the petitioner had informed his second wife regarding the subsistence of his first marriage with the respondent No. 2 can only be revealed during the trial and, therefore, she submits that this is not a fit case to invoke the inherent jurisdiction of this Court to quash the proceeding of PR Case No.1071/2025. 11. On the other hand, Mr. K. Baishya, the learned Additional Public Prosecutor submits that the Assam Compulsory Registration of Muslim Marriages and Divorces Act, 2024, which was in force, when the second marriage of the petitioner was held, requires compulsory registration by Muslim persons. He submits that the there is no material to indicate that the second marriage of the petitioner was registered under the said Act. He, however, fairly submits that non- registration of such marriage would not make the second marriage void in itself. 12. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel. 13. The allegation against the present petitioner in the FIR lodged by the respondent No.2 is that he had performed second marriage during the subsistence of his earlier marriage with the respondent No.2. The accusation against him is of commission of offence under Section 82(2) and 83 of the BNS, 2023. For the sake of convenience, Section 82 and 83 of the BNS, 2023 are quoted hereinbelow as below: “82. Marrying again during lifetime of husband or wife.— Page No.# 6/12 (1) Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception.—This sub-section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. (2) Whoever commits the offence under sub- section (1) having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 83. Marriage ceremony fraudulently gone through without lawful marriage.—Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Page No.# 7/12 14. On bare perusal of the aforesaid provisions, it appears that the requirement of second marriage being void due to the reason of its taking place during the subsistence of the first marriage is mandatory for commission of an offence under Section 82(1) of the BNS, 2023. Similarly, commission of offence under Section 82(1) of the BNS, 2023 is a pre-requisite for fulfilling the ingredients of offence under Section 82(2) of the BNS, 2023. For commission of offence under Section 83 knowingly performing the ceremony of an illegal marriage is a pre- requisite, which also indicates that the marriage in question has to be illegal marriage for whatsoever reason. In the instant case, the accusation against the petitioner is that he married during existence of his marriage with respondent No.2. 15. In this regard, the observations made by the High Court of Bombay in the case of Kalim Shaikh Munaf and Others Vs. The State of Maharashtra and others (Supra) are relevant in this case and as such, the same are reproduced hereinbelow: “17. In a case of A.S. Nazar v. Jissa, 2017 SCC OnLine Ker 17001, the Kerala High Court by referring the case of Dr. Surajmani Stella (supra), in paragraph nos. 9 and 10 has made following observations:— “9. The Apex Court in Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, [(2001) 3 SCC 13 : 2001 KHC 1043 : AIR 2001 SC 938] held that the fact of the second marriage being void is sine qua non for the applicability of Section 494 of IPC. Page No.# 8/12 The Muslim male can have four wives at a time. However, if the Muslim male marries a fifth wife, he can very well be prosecuted under section 494 of IPC since the fifth marriage is void as the present law permits only four wives to be taken together. 10. One of the most ingredients to attract the offence under section 494 IPC is that the second marriage should be void. So far as Muslim males are concerned, since they can have four wives living at a time, the second marriage is not void. Since the second marriage is not void, the offence under section 494 IPC is not attracted, even if the Muslim male marries a second woman. In this case, there is no allegation that the first petitioner had married more than once before the marriage with the second petitioner. Therefore, no offence under section 494 IPC is attracted in this case. Consequently, the abetment of the said offence is also not attracted. For the said reason, there cannot be any successful prosecution against the petitioners for the above said offences and consequently, no purpose will be served even if the prosecution against the petitioners is permitted to be continued. For the said reason, I am inclined to quash annexure A-1 complaint and further proceedings against the petitioners in CC No. 1232 of 2015 on the files of the Court below, in exercise of the inherent power under section 482 of Cr. P.C. to meet the ends of justice and accordingly, I order so.” 18. In a case of Venugopal K. v. Union of India, 2015 SCC OnLine Ker 798 relied upon by the learned counsel for the applicants, in paragraph nos. 10 and 11 of the Page No.# 9/12 judgment, Kerala High Court has made the following observations:— “10. There may be cases where a Muslim male or female can be prosecuted for offence under Section 494 IPC also. In a case where a Muslim male marries a fifth wife, he can very well be prosecuted under Section 494 IPC since the 5th marriage will be void, personal law being having permitted only four wives to be taken together. Similarly a Muslim female contracting a second marriage can be proceeded with for offence under Section 494 IPC. Thus submission of the learned counsel for the petitioner that offence under Section 494 IPC is discriminatory between Hindu/Muslim/Christian is not acceptable. The sina qua non for giving rise to an offence under Section 494 is whether the second marriage performed by a husband or wife when the spouse is living is void or not. In this context judgment of the Apex Court in Dr. Srajmani Stella Kujur v. Durga Charan Hansdah, ((2001) 3 SCC 13) is relevant to be mentioned. In the above case wife had filed a complaint that her marriage was performed at Delhi in accordance with the Hindu rites and customs and the husband solemnized another marriage with accused No. 2. Parties belonged to Scheduled Tribe. The Apex Court held that in the absence of specific pleadings, evidence and proof of alleged custom making the second marriage void, no offence under section 494 of IPC can possibly be made out against the respondent. It was held by the Apex Court that the fact of second marriage being void is sin qua non for the applicability of section 494 of IPC. The following was laid down in paragraph 14: Page No.# 10/12 “14. Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of S. 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the (SIC) appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October, 1992 she has stated that “I am a Hindu by religion”. The complaint was dismissed by the Trial Court holding, “there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient”, the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub-section (2) of S. 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law.” Page No.# 11/12 11. To the same effect there is another judgment of the Supreme Court in Lilly Thomas v. Union of India, ((2000) 6 SCC 224) wherein the following was observed in paragraph 23: “23. We have already seen above that under the Hindu Marriage Act, one of the essential ingredients of a valid Hindu marriage is that neither party should have a spouse living at the time of marriage. If the marriage takes place in spite of the fact that a party to that marriage had a spouse living, such marriage would be void under S. 11 of the Hindu Marriage Act. Such a marriage is also described as void under S. 17 of the Hindu Marriage Act under which an offence of bigamy has been created. This offence has been created by reference. By providing in S. 17 that provisions of S. 494 and 495 would be applicable to such a marriage, the legislature has bodily lifted the provisions of S. 494 and 495 IPC and placed them in S. 17 of the Hindu Marriage Act. This is a well known legislative device. The important words used in S. 494 are “MARRIES IN ANY CASE IN WHICH SUCH MARRIAGE IS VOID BY REASON OF ITS TAKING PLACE DURING THE LIFE OF SUCH HUSBAND OR WIFE”. These words indicate that before an offence under S. 494 can be said to have been constituted, the second marriage should be shown to be void in a case where such a marriage would be void by reason of its taking place in the lifetime of such husband or wife. The words “husband or wife” are also important in the sense that they indicate the personal law applicable to them which would continue to be applicable to them so long as the marriage subsists and they remain “husband and wife”.” Page No.# 12/12 16. The provisions contained in Section 82 of the BNS, 2023 are in pari- materia with the provisions of Section 494 of the Indian Penal Code. This Court is in agreement with the observations made by the High Court of Bombay and High Court of Kerala in the above referred judgment that the fact of second marriage being void is sine qua non for applicability of Section 494 of the Indian Penal Code and by the same analogy for applicability of Section 82 of the BNS, 2023. As according to the personal law of the petitioner, who is a Muslim male, he can have four wives at a time. Hence, he can be prosecuted under Section 82 of the BNS, 2023 only if he marries a fifth wife, during the life time of earlier four wives, without divorcing any of them as such a marriage would be void marriage. For the same reasons, the provisions of Section 83 of BNS, 2023 will also be not applicable as his second marriage is not an illegal marriage under the personal law applicable to a Muslim male. 17. For the aforesaid reasons continuation of the criminal proceedings of PR Case No. 1071/2025 would be a futile exercise and an abuse of process of law, as such, the same is liable to be quashed. 18. The proceedings of PR Case No. 1071/2025 is, accordingly, quashed. 19. This Criminal Petition is, accordingly, allowed. JUDGE Comparing Assistant