Absence of a law that makes adultery an offence cannot provide individuals with a blanket immunity of marrying another person secretly during the subsistence of their first marriage, the Delhi high court said, adding that it was crucial to legally protect those partners who have committed to the sanctity and values of marriage.

The court was of the view that insisting the victim spouse to provide evidence regarding performance of the ceremonies of a second marriage for the offence of bigamy was dangerous for the society and the partner.

“The gravity of the offence of bigamy, which mandates the solemnization of a previous valid marriage and the conduct of a spouse to get married to another person during the lifetime and existence of the first valid marriage is both dangerous for society and for the victim spouse,” a bench of justice Swarana Kanta Sharma said on Wednesday.

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To be sure, a five-judge constitution bench in 2018 had struck down Section 497 of the Indian Penal Code that made adultery an offence only with respect to a man who has a relationship with a wife of someone else, declaring it to be unconstitutional and violative of right to equality of women in treating them as chattel (property) and inferior to their husbands. In 2020, the top court had held that its decision of stubbing down the archaic law from the criminal statute book did not require any reconsideration.

The bench in the verdict made public on Friday noted that such insistence should not be used as a tactic to evade legal consequences since a second marriage during the subsistence of the first would generally be a clandestine marriage and had the capability of producing difficulties in proving whether the persons followed all the rituals or married by any other legally accepted form.

The judge in the 32- page ruling also said, “The mere inability of one partner, either a wife or a husband, to prove performance of Saptapadi qua the second marriage at the summoning stage should not be misused as a loophole to evade legal consequences. In any case, it cannot be expected that the husband of a wife will get married for the second time, during the subsistence of earlier marriage, after informing her first wife or in her presence so that she can collect evidence of his second marriage and the ceremonies performed therein.”

The lady had approached high court against session’s court’s 2019 order of quashing the summons issued by the Magistrate in a case filed by her against her husband under section 494 (bigamy) of the Indian Penal Code.

She had alleged that her husband married another woman in 2015 in the presence of local priests and their family and a daughter was born out of the said marriage. The lady in her complaint further stated that even the duo’s (husband and the second woman) neighbours and security guard acknowledged them as a married couple and the daughter’s birth certificate named her husband as the girl’s father.

The city court while quashing the summoning order held that though it was mandatory to provide proof of solemnisation of second marriage in accordance with essential religious rites for establishing bigamy, the lady had failed to provide oral or documentary evidence regarding her husband and the other woman performing Saptapadi around the sacred fire. The city court had further ruled that evidence in the form of photographs or some documents showing parties to be in a relationship akin to marriage was not sufficient to even proceed against the accused adding that mere living in a live-in relationship with the person was not sufficient to attract the offence.

The lady appearing through advocate Malavika Rajkotia submitted that the lower court had erred in holding without even trial that there was no evidence as the court had ignored the photograph of the second marriage and birth of a child from that wedding which was a pivotal piece of evidence.

The husband appearing through advocate Giriraj Subramanian however submitted that the lady had only made bald and vague allegations regarding her husband marrying another woman by a local pundit but failed to disclose details about the same.