S.494 IPC | Friends/Relatives Can't Be Held To Have Common Intention For Offence Of Bigamy By Mere Presence In Second Marriage: Supreme Court

The Supreme Court, in a recent judgment, held that the charge under the offence of bigamy, punishable under Section 494 of the Indian Penal Code, can be framed only against the spouse to the second marriage. By the mere presence of friends and relatives in the second marriage, it cannot be held that they had the common intention to commit the offence of bigamy unless the complainant prima facie proves the overt act or omission of the accused persons and also establish that such accused were aware about the subsisting marriage. The bench of Justices BR Gavai and Sandeep Mehta, while setting aside the criminal proceedings against the relatives and friends of the accused wife, observed the following : “A bare perusal of the penal provision would indicate that the order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. Trial Court's Order Of Charging Appellants Under The Offence Of Bigamy Erroneous, Only Spouses Involved In Second Marriage Can Be Charged Under Section 494 IPC The Court at the outset noted that while the complaint was filed alleging the commission of offences under S. 494 read with S. 34 IPC, however after recording the pre-charge evidence, the Trial Court directed the framing of charges all the accused persons only under the offence of Bigamy under S. 494 IPC. However, this is a curable defect, and the charge can be altered at any stage as per the provisions of Section 216 CrPC.” Common Intention Of The Appellants By An Overt Act Or Ommission Not Proven The bench noted that peculiarly, the appellants have not been charged under the offence of abetment of bigamy under S. 109 IPC but rather of common intention under S. 34 IPC.Applying the rules for establishing common intention, the Court noted the prima facie need to show that not only were the appellants present at the bigamous wedding but also committed an overt act or omission to show their common intention towards the bigamy and the knowledge that Mr Lumina was already married.