-Ishan Vijay
Introduction
There is a lot of uproar of Section 498-A of the Indian Penal Code (IPC) or Sections 85 and 86 of the Bharatiya Nyaya Sanhita (BNS) i.e. cruelty, and its misuse, from activists to courts. And while that remains to be an existing challenge, this article seeks to focus on a less talked-about facet of cruelty. This stems from scores of High Court decisions about husbands marrying a second wife during the lifetime of the first. If this second wife alleges commission of cruelty under Section 498-A by the husband or his relatives, these charges will not be maintainable as the marriage is void and the man cannot be termed as a ‘husband’. This was the holding of the apex court, in the context of Hindu marriages, in Shivcharan Lal Verma v. State of MP. This article argues that it is time to reconsider the position offset in the Shivcharan case, as it is the bearer of constitutional errors and legal mischief.
The Legal Mischief
The Allahabad HC in Mann Singh v. State of UP was dealing with a case where the complainant alleged a dowry demand and cruelty under Section 498-A by her husband, Mann Singh. The defense by Mann Singh and his wife was that the complainant was his second wife. As it was solemnized during his first marriage, the complaint was not maintainable due to the established legal position. The Allahabad High Court accepted this and invoked the Shivcharan precedent to hold that since the second marriage was null and void, the charge under Section 498-A was not maintainable. The prosecution themselves conceded to this point. However, this does not address the question of the acts in Section 498-A being committed.
The argument in maintaining this legal juxtaposition is that there are other provisions of the IPC/BNS and ‘The Protection of Women From Domestic Violence Act 2005’ (DV Act) which provide safeguards to non-married women in a domestic setting. While such arguments have problems, this article will not be addressing them as their usage creates a legally absurd “get out of jail card” which needs eradication. The Supreme Court’s position is that acts of cruelty by the husband or his relatives cannot be investigated at all if the marriage is void due to an existing prior marriage. Such a position is untenable, ignores the rule of law, and cannot be dealt with by citing other statutes as remedies.
The position that cruelty will not apply when the marriage is void will allow entry of legal mischief. The trial and appreciation of evidence will be one of the validities of marriage and not about the acts constituting cruelty. The Kerala High Court did exactly this in X v. State of Kerala & Anr, where it was analyzing a case of cruelty. It quashed the proceedings opened by the trial court, with the reasoning that the most essential ingredient to attract Section 498-A is a valid marriage to the husband in the eyes of the law. The judgement does not even discuss the offences due to which the ‘second wife’ was contending cruelty.
Section 5(i) of the Hindu Marriage Act 1955, does say that marriage cannot take place when one of the parties has a spouse living. And Section 11 holds these marriages void. But another condition for marriage under Section 5(ii)(a) is the ability to give valid consent. In a catena of High Court decisions such as Sidhu v. State, Shivcharan Lodhi v. State of MP, Mulakalapalli Prakash Babu v. State of AP, Harshidaben v. State of Gujarat, and others, quashed criminal proceedings under Section 498-A by the reasoning that the accused could not be considered ‘husband’ and thus neither the accused nor relatives could be prosecuted under Section 498-A. All cited Shivcharan Verma as the authority.
In none of these High Court decisions was there any argument advanced that the void marriage took place without the consent of the accused husband. Hence, the void marriage was contracted consensually. The Shivcharan Verma decision essentially permits a situation where the accused can contract a marriage, commit acts of cruelty and get those proceedings quashed by arguing that the marriage he voluntarily contracted was void because of an existing prior marriage. This runs contrary to the legislative intent of Section 498-A which is an enabling provision against harassment of women. The Supreme Court has instead allowed mischief to creep into the legislation.
The absurdity of the situation was not lost on the Supreme Court itself in the dual cases of Reema Aggarwal v. Anupam and Koppisetti Subharao v. State of AP. Both judgements, while speaking about dowry, gave identical commentary on the legislative intent of Section 498-A and how it was enacted to curb the harassment of women in marital spaces. An accused who enters into such marital arrangements could not hide behind a smokescreen of the voidness of said marriage. When the law has taken care of children in void and voidable marriages, it cannot be said that the legislature was blind to the oppression of women in these spaces, said the Apex court in both cases.
Domestic Violence Act: A remedy?
A purported retort to this, which was spelt out by the Allahabad High Court in the Mann Singh case, is that a ‘second wife’ can always seek remedy under ‘The Protection of Women From Domestic Violence Act 2005 (DV Act)’. Section 2(f) of the DV Act defines a domestic relationship as not just marriage, but also a ‘relationship in the nature of marriage’. Thus, legally being married is not a condition precedent for victims of domestic violence to be covered under this. Section 3 includes within the definition of domestic violence, “violence leading to endangerment of health and violence related to dowry or property demands.” Thus, there is an overlap of cruelty.
Ironically, the Allahabad High Court itself would go on to answer the retort in Shashank Pandey & Ors v. State of UP Through Additional Civil Secretary. The court held that a suit of domestic violence would be maintainable even when the marriage was declared null and void. The reason for this is that Section 2(f) covers relationships in the nature of marriage, and even if a couple was in a void marriage, it would still qualify as a relationship and attract DV provisions. The Bombay High Court in Dhanraj v. Shalini went in the opposite direction. Noticing that a family court had held that the marriage between the parties in question was null and void, it rejected the maintainability of the DV Act. This was because, from the date of the order, the relationship ceased to exist and thus, the provisions would cease to apply. Both judgements cited the Supreme Court case, D.Velusamy vs D.Patchaiammal, which defined a relationship ‘in the nature of marriage’ as being akin to a common law marriage. The Supreme Court in Prabha Tyagi v. Kamlesh Devi, held that divorced women would be rescued by the DV Act if they faced domestic violence post-divorce or during judicial separation. This is the violence was relatable to the period of the domestic relationship.
One argument is that the DV Act could act as a remedy. If DV can be attracted even post-divorce, it should be attractable even for void marriages. A void marriage would still suggest the existence of a domestic relationship, just not one of legal marriage. Thus, violence related to that relationship should be covered under the DV Act. However, another argument is that a divorce would suggest the existence of a marriage. Whereas marriage being null and void means the marriage itself was not legal. And since the relationship was supposed to be that of a marriage, voidness would cause that status to be lost and ergo the relationship would cease to exist. There are contrary interpretations by High Courts, and the Supreme Court has not clarified the applicability of the DV Act to ‘void’ wives. Besides, the DV Act would offer only a civil remedy, not a criminal one. Section 31 clearly specifies that the criminal nature of DV would only take shape if an order of a magistrate was violated. Thus, more in the nature of contempt.
It cannot be said that this law will come as a guarantee of a remedy because the law has not specified that women married to men who are already married, or the ‘void wife’ will be covered under the DV Act. Given the fact that the safety and health of such women are at stake, it cannot be a sustainable argument that they cannot file charges of cruelty because they have a remedy under the DV Act.
The Absurdity of Mischief and Denial of Right
The Supreme Court has reserved judgement in Sukhdev Singh v. Sukbir Kaur, as to the question of maintenance to a ‘second wife’, when the husband was already married. Justice Oka criticized the usage of the phrase ‘illegitimate wife’ holding that it goes against a woman’s dignity under Article 21. The court also questioned why such a wife should be deprived of maintenance. The court, on February 12th 2025, passed the judgement of Sukhdev Singh v. Sukbir Kaur and held in the affirmative, that a wife could seek maintenance under the HMA, even if the marriage was declared void.
Given the comments of the hearings, when calling a wife ‘illegitimate’ can be a violation of dignity, it is difficult to surmise alleged acts of cruelty not being brought to light are not violative of the right to life, dignity, and bodily integrity under Article 21 of the Constitution of India, 1949. This is especially true since the Special Rapporteur to the United Nations Human Rights Council report has classified domestic violence as a form of torture. Dr Isabel Marcus has drawn broad similarities between torture and domestic violence, as both involve an abuse of power and a violation of dignity. Even this broad analysis of the international position shows that the stakes are high, as the human rights of life and dignity are involved. The claims of the ‘second wife’ cannot be brushed aside due to the existing marriage of the accused.
To reiterate, cruelty involves acts of harassment that can drive a woman to death or dangerous injury. It also includes harassment relating to cash or property demand. The Supreme Court in GV Siddaramesh v. State of Karnataka clarified that ‘cruelty’ includes harassment both physical and mental. The mischief of the law can have a very real impact on a woman’s person, property, and psyche. According to the National Family Health Survey, in 2021, a total of 136000 complaints were registered under Section 498-A. Data also found that nearly 30% of married women between 18 and 49, suffer from domestic or sexual violence. It is important to keep in mind that this is reported data of married women. Given the seriousness of these statistics and the nature of complaints, it becomes even more grave when we remember that the women this article focuses on, cannot even raise these complaints because they would be denied protection from the law. The obstacle is a void marriage contracted consensually by the accused. Women who contracted such void marriages could be subject to acts of harassment leading to suicide, and the law would not so much as extend its protective eye due to the validity of the marriage certificate. It would amount to the offence being investigated on the correctness of a marriage rather than the alleged actions committed. The trial would become about said marriage and the complaint about actions of cruelty would go unheard the moment the certificate is deemed invalid. This not only violates a woman’s right to life and dignity under Article 21 but is also a very arbitrary classification and amounts to a violation of equal protection before the law under Article 14.
Conclusion
The Indian position of Section 498-A creates a double-edged sword of a problem. It produces a legal mischief where a husband contracts a second, void marriage under Hindu law and then escapes investigation into alleged acts of cruelty by citing his voluntary existing marriage as a defence. A marriage he knows about when taking a second wife. The second edge of the sword is the violation of women’s right to life and liberty, and equal protection before the law, which goes ignored due to the existence of Shivcharan Verma. It creates a scenario of violation of constitutional principles and human rights. This can lead to women suffering violence which can lead to death, and the law would not be applied. Hence, it is time that the Supreme Court reversed its judgement in Shivcharan Verma and rids the law of this smokescreen, which is clearly contrary to the legislative intent of the provision of cruelty under Section 498-A
The author is an assistant lecturer at OP Jindal Global University (JGU). He works as a research associate for two centres within the university; Centre for Human Rights Studies (CHRS) and Centre for Constitutional Law Studies (CCLS).