Pushpendra vs State Of U.P.

Hon'Ble Arun Kumar Singh Deshwal, J.

Heard Sri Dhirendra Bahadur Singh, counsel for the applicant, Sri Umesh Chandra Prajapati, counsel for the first informant, Sri Anand Pratap Singh, learned A.G.A. for the State and perused the record.

The instant bail application has been filed with a prayer to release the applicant on bail during trial in Case Crime No. 13 of 2026, under Sections 80(2), 85 BNS and Section 3/4 D.P. Act, Police Station Kakarvai, District Jhansi.

Counsel for the applicant submitted that the applicant is alleged to be the second husband of the deceased, who committed suicide by hanging. He further submitted that it is not in dispute that the deceased was earlier married one Komal (first husband) on 12.04.2019; thereafter the deceased, without getting proper divorce from court, separated from her first husband Komal through notarized compromise dated 31.05.2022; thereafter the deceased started living with the applicant on the basis of notarized agreement dated 17.05.2023. Though, the applicant and the deceased were living together as husband and wife but their status cannot be said to be as husband and wife, at the most they can be said to be a live-in-partners. It is further submitted that the applicant would not come within the definition of husband for the purpose of Section 80 BNS as the deceased did not get divorce from her first husband Komal and without getting proper divorce she started living with the applicant, therefore, the applicant is entitled to be released on bail. In support of his contention, he has placed reliance upon a judgment of this Court in Sarvesh alias Chhotu alias Chhotelal Vs. State of U.P. reported in 2026 SCC OnLine All 22865, wherein this Court observed that the husband mentioned under Section 80 and 85 BNS will cover only when a person is legally married to a woman and not the person whose marriage is itself void. However, there was a caveat, where there is a doubt over the first marriage, then the person living as a husband in the alleged second marriage will be covered in the definition of husband for the purpose of Section 80 and 85 BNS.

Counsel for the applicant further submitted that the applicant has no criminal history. It is further submitted that charge sheet has been filed in the present case, therefore, there is no requirement of custodial interrogation. The applicant is a law abiding citizen and he is languishing in jail since 28.02.2026. In case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings.

Per contra, learned A.G.A. as well as counsel for the first informant has vehemently opposed the prayer for bail and submitted that it is admitted that the applicant was living with the deceased as husband as per the notarized agreement dated 17.05.2023 being fully aware that the first marriage of the deceased was dissolved through customary practice by executing notarized affidavit dated 31.05.2022. It is further submitted that although the Apex Court in the case of Sanjana Kumari Vs. Vijay Kumar in Criminal Appeal No.2905 of 2023 observed that Section 29(2) of the Hindu Marriage Act, 1955 recognizes the custom relating to marriage and divorce, even if the same is against the Hindu Marriage Act, 1955. Though, the customary divorce deed needs to be proved before the competent court. It is further submitted that the Apex Court in the recent judgment in Dr. M. Lokesh B.H. & Ors Vs. State of Karnataka & Another reported in 2026 SCC OnLine SC 1470 observed that even if two persons live-in-relationship which has been qualified as a relationship with intent to marry, then the partner would be deemed to be the husband for the purpose of Section 498-A I.P.C. It is further submitted that in the present case, the applicant has admitted that he and the deceased were living together as husband and wife and their marriage was executed through notarized deed, therefore, the present applicant shall be deemed to be treated as husband for the purpose of Section 80 BNS, therefore, the applicant is not entitled to be released on bail.

Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, taking into account the record, it is clear that the applicant admitted this fact that after the separation of the deceased from her first husband (Komal) through a duly notarized compromise deed dated 31.05.2022, he and deceased started living as husband and wife on the basis of notarized agreement dated 17.05.2023. The intent of the applicant was clear that he was living with the deceased as her husband. So far as the divorce of the deceased from her first husband is concerned, whether the separation of the deceased from her first husband was based on customary practice, has to be examined by the competent court. In the present criminal proceedings, the same cannot be adjudicated as this Court has already observed in case of Sarvesh alias Chhotu alias Chhotelal Vs. State of U.P. reported in 2026 SCC OnLine All 22865 that the dispute regarding the first marriage can be decided by the competent court and not in criminal proceedings. Paragraph 28 of the Sarvesh (supra) is being quoted as under:

The Apex Court in Dr. M. Lokesh B.H. & Ors Vs. State of Karnataka & Another reported in 2026 SCC OnLine SC 1470 has observed that male partner of live-in-relationship in the nature of marriage with intent to marry would be deemed as husband for Section 498-A I.P.C., but not all kind of live-in-relationship will be mimic marriage, therefore, to that extent observation in the case of Sarvesh (supra) regarding Section 85 BNS (Section 498-A of I.P.C.) will be deemed to be modified by the Hon'ble Apex Court. Paragraph 23 of the Dr. M. Lokesh B.H. (supra) is being quoted as under:

In view of above discussion, this court is of the view that even if earlier divorce of the deceased is in dispute on the ground of its validity though admitted, then the same can be decided by the competent court. Therefore, the parties living together as husband and wife on the basis of some agreement without any dispute, and even if the marriage has not been performed according to the Hindu custom, then their status may be considered as husband and wife, for the purpose of Section 498-A I.P.C. (Section 85 BNS) and Section 304-B I.P.C. (Section 85 BNS).

In view of the above analysis, this Court holds that the applicant would be deemed to be the husband of the deceased for the purpose of Section 80 and 85 BNS as the deceased died because of unnatural circumstance (suicide by hanging) within seven years of her marriage and there was consistence statement of first informant and other family members of the deceased that before her death she was subjected to cruelty for non-fulfillment of demand of dowry, therefore, the presumption under Section 118 of BSA would be attracted against the applicant, therefore, this Court is not inclined to release the applicant on bail, at this stage.

Accordingly, the bail application is rejected.