Has your spouse secretly remarried?

Parveen and Farooq have been married for 20 years. They have two sons, one is a recent college graduate and the other will appear for SSC next year. Parveen and Farooq’s family is exactly what you mean by a small happy family. Neither Parveen nor Farooq uses Facebook but their elder son Junaid is an active Facebook user. He often shares family photos on Facebook along with his own photos.

One day suddenly a gentle lady inboxed Junaid and asked for their address. Junaid refused to give the address to the unknown woman, but the gentlewoman found out the correct address one day with some guardians present at Parveen and Farooq’s house. Parveen and his sons could not understand anything, but Farooq kept quiet like a thief.

Through people, Parveen came to know that her husband Farooq had secretly married a decent woman named Dilruba a couple of years ago, while still having a wife (Parvenn) and children. Farooq cheated on two wives at the same time. As he cheated on Parveen by marrying Dilruba a second time while still married to Parveen, he also cheated Dilruba by concealing his marital status with Parveen.

In this case, Farooq has committed an offense under Section 494 of the Penal Code by marrying another while a wife already exists, which is the subject of today’s discussion. If your husband or wife remarries during your lifetime, how you will take legal action against him under section 494, I will try to discuss step by step in today’s article.

Firstly, it is necessary to have a look at the elements that are required to constitute an offense under Section 494 of the Penal Code.

1. The first marriage mentioned between husband and wife must be legal. Here, where remarriage during the lifetime of the husband or wife is spoken of, the marriage to which the husband or wife was first bound must be lawful.

2. The first marriage must be valid. If the marriage is declared null and void by a court order, there is no problem with remarriage. Moreover, the marital relationship ends through a divorce, so remarriage is not a problem. Again, if there is no trace of a husband or wife for 7 years, remarriage on the assumption that he is dead will be valid, which will not constitute an offense under section 494.

3. First marriage and second marriage, both marriages must be lawful, i.e. valid marriages.

Secondly, if the offense under section 494 is organized, then who can file the case?

A person whose husband or wife remarries during his or her lifetime and during the subsisting of a valid marital relationship can be prosecuted under section 494 against the remarried person. That is, if the husband remarries, the wife can file a case and if the wife remarries, the husband can file a case.

Thirdly, if your spouse has committed an offense under section 494, where do you have to file a complaint?

If your spouse remarries during your lifetime, you can file a case against him/her under section 494. As section 494 cases are inadmissible; Therefore, the police will not file an FIR, investigate or arrest a case under the said section without the permission of the court. You have to file a case under section 494 in court.

Now the question may arise again, which court to file a case in?

We know that under Section 494 of the Penal Code, if a person remarries while his/her spouse is alive, that person shall be punished with imprisonment of any description which may extend to 7 years, and with a fine. Courts of Chief Metropolitan Magistrates and Specially Empowered Metropolitan Magistrates now have jurisdiction to award imprisonment up to 7 years, within metropolitan areas.

And outside the metropolitan area having jurisdiction to award 7 years imprisonment, Chief Judicial Magistrate, Additional Chief Judicial Magistrate (case cannot be filed but Chief Judicial Magistrate can send case for hearing), specially empowered First Class Magistrate Court. Then the complainant can file a complaint against the accused for the offense under section 494 in the competent court.

Fourthly, if the case is filed under section 494, will the accused get bail?

Even if a case is filed under Section 494 of the Penal Code, the accused is eligible for bail. That is the legal right for the accused to get bail.

Fifthly, the case has been filed, now who is complaining and what must be proved?

We know that usually, the person who complains in court has to prove his complaint. Therefore, the complainant has to prove his/her allegations. According to S. Nagalingam v. Sivagami, (2001) 7 SCC 487, to prove the offense under Section 494, along with other evidence the prosecution has to prove that the second marriage was valid. After that, the court will either punish or acquit the accused based on the evidence.

Husband and wife can sacrifice everything to keep their relationship together, but can never tolerate the arrival of a third person. Even after financial problems, physical problems, and failure to bear children, marital relations are often seen to remain intact. Even after the death of one, the examples of the other spending the rest of their lives alone are innumerable. But, if one has an affair or marries someone else while the marital relationship is subsisting, then it is a marital relationship that cannot be tolerated by the opposite party. Hence, remarriage, while the marital relationship is still in force, has been termed a punishable offense.

Author: Chowdhury Tanbir Ahamed Siddique. The author completed LLB, and LLM from Northern University Bangladesh and is now a full-time writer for various newspapers.