Second Marriage Without Divorce in Odisha: Section 494 IPC
Under Section 494 IPC, marrying a second time while the first marriage subsists is a criminal offence punishable with 7 years imprisonment. The second marriage is also void. This guide explains the law, remedies for the first spouse, and exceptions.
By Advocate Debarchana Samal · 21 July 2026 · 7 min read
What is Bigamy Under Indian Law?
Bigamy is the act of marrying a second person while still legally married to the first. Under Section 494 of the Indian Penal Code (IPC), 1860 — now mirrored under the Bharatiya Nyaya Sanhita (BNS) — 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.
The offence exists because Hindu personal law — codified under the Hindu Marriage Act, 1955 — prohibits polygamy and polyandry. Section 5(i) of the Hindu Marriage Act says a marriage is valid only if neither party has a living spouse at the time of marriage. A second marriage solemnised in violation of this condition is absolutely void under Section 11 of the Hindu Marriage Act.
Punishment for Bigamy Under Section 494 IPC
Criminal Punishment
Effect: Imprisonment up to 7 years and/or fine
A non-bailable, cognisable offence. Bail is at the court's discretion.
Civil Consequence
Effect: The second marriage is void — it has no legal existence
The second spouse acquires no rights of a lawfully wedded wife or husband.
Who Can File a Bigamy Complaint?
The Supreme Court has clarified in several decisions that bigamy is an offence committed against the aggrieved spouse — not against the public at large. This has a crucial procedural consequence: a police officer cannot file a complaint for bigamy on their own initiative without a Magistrate's direction. Under Section 198 of the CrPC, only the aggrieved party — the first spouse — can initiate prosecution for bigamy.
This means: if you are the first wife or first husband and your spouse has contracted a second marriage without divorcing you, you must file the complaint personally before the Judicial Magistrate. Police cannot act without your complaint and a Magistrate's order.
How to Prove Bigamy in Court
Proving bigamy requires establishing two things conclusively: (1) that the first marriage was valid and subsisted at the time of the second marriage, and (2) that the second marriage was actually performed. Evidence courts look for includes:
Rights of the Second Wife in India
The second marriage being void does not leave the second wife entirely without remedy. Courts have developed nuanced protections for her position:
What About Conversion to Islam to Marry Again?
A common attempt by Hindu husbands to circumvent bigamy laws is to convert to Islam before contracting a second marriage, since Islamic personal law traditionally permits polygamy. The Supreme Court firmly closed this door in Sarla Mudgal v. Union of India (AIR 1995 SC 1531). The court held that a Hindu husband who converts to Islam solely to solemnise a second marriage without divorcing his first wife commits the offence of bigamy under Section 494 IPC. The conversion does not dissolve the first Hindu marriage, which can only be ended by a decree of divorce under the Hindu Marriage Act.
This principle has been consistently followed by courts across India. A Hindu wife whose husband converts and remarries can file a bigamy complaint and also seek divorce on grounds of conversion and desertion under Section 13(1)(ii) HMA.
Property Inheritance: First Wife vs Second Wife
Since the second marriage is void, the second wife is not a legally wedded wife and has no right to inherit as a Class I heir under the Hindu Succession Act. The first wife retains full rights as a legal heir. However, the husband can make a will bequeathing a portion of his self-acquired property to the second wife or their children. Children of the void second marriage, being legitimate under Section 16 HMA, do inherit from the father's intestate estate in their own right.
Step-by-Step: How to File a Bigamy Complaint in Odisha
Gather evidence of both marriages
Secure the marriage certificate or proof of your first marriage. Collect all available evidence of the second marriage — invitation cards, photographs, witness details, registration records, or any acknowledgement by the accused.
Consult a lawyer with expertise in matrimonial and criminal law
Bigamy cases run alongside divorce and maintenance proceedings. A lawyer experienced in both criminal and family law will help you develop a coordinated strategy rather than approaching each proceeding in isolation.
File a complaint petition before the Judicial Magistrate
Draft a complaint petition under Section 494 IPC and file it before the Judicial Magistrate having territorial jurisdiction. The court records your statement under oath. You cannot go directly to the police — the Magistrate's direction is required.
Court takes cognisance and issues process
If the Magistrate is satisfied that a prima facie case is made out, they take cognisance and issue summons or a warrant to the accused. In appropriate cases, the Magistrate may direct the police to conduct an inquiry and submit a report.
Pursue parallel civil remedies simultaneously
While the criminal case proceeds, simultaneously file for maintenance under Section 125 CrPC (Section 144 BNSS), relief under the Domestic Violence Act, and a divorce petition. Criminal conviction for bigamy is not required to obtain a civil divorce.
Important: Section 494 IPC has a limitation period. Under Section 468 CrPC, the complaint for an offence punishable with up to 7 years imprisonment must be filed within 7 years of the second marriage. Do not delay — contact a lawyer as soon as you discover the second marriage.
Frequently Asked Questions
Is bigamy a bailable or non-bailable offence in Odisha?
Section 494 IPC is a non-bailable and cognisable offence. This means the police can arrest without a warrant once a Magistrate's direction is given, and bail is at the court's discretion — it is not an automatic right.
What if the husband claims he divorced me through customary divorce and then remarried?
Under the Hindu Marriage Act, 1955, a marriage can only be dissolved by a decree of divorce from a competent court. Customary divorce, verbal talaq-style pronouncements, or informal separation are not valid dissolution of a Hindu marriage. A second marriage after such informal 'divorce' is still bigamy under Section 494 IPC.
Can the second wife file a bigamy complaint?
Generally no. Section 198 CrPC restricts the complaint to the aggrieved party — the first spouse. The second wife who entered the marriage unknowingly is a victim, not the complainant. She may have remedies under the DV Act for relief such as maintenance and residence, but the bigamy complaint itself belongs to the first spouse.
Will my husband go to jail immediately after I file the complaint?
Not immediately. After the Magistrate takes cognisance, summons are issued. The case goes to trial. A person is convicted and sentenced only after the trial concludes and the court finds guilt proven beyond reasonable doubt. The process takes time — but early interim orders such as maintenance and protection orders under the DV Act can be obtained much faster.
Does filing a bigamy complaint affect my maintenance rights?
No — in fact, it strengthens your position. A subsisting first marriage entitles you to maintenance from your husband. The second marriage being void does not reduce your entitlement. Courts consistently hold that the first wife's maintenance rights are unaffected by the husband's bigamous second marriage.
Dealing with Bigamy or a Second Marriage in Odisha?
Advocate Debarchana Samal handles bigamy complaints, matrimonial disputes, and related maintenance proceedings across Odisha courts. Contact us for a confidential consultation on your situation.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.
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