Introduction:
The Jammu and Kashmir and Ladakh High Court has clarified that an order granting protection to individuals cannot be treated as immunity from criminal investigation or as a blanket authorisation to commit offences. The Court observed that a protection order does not determine the legal rights or marital status of the parties and cannot prevent the police from examining a subsequent complaint if the allegations disclose the commission of a cognizable offence.
Emphasising that judicial protection cannot be used to shield an alleged offender from the process of law, the High Court held that an investigating agency remains free to examine allegations of an offence against persons who have previously approached the Court seeking protection. The Court specifically observed that contracting a second marriage during the subsistence of an earlier marriage constitutes an offence under the applicable law.
Justice M.A. Chowdhary made these observations while disposing of a petition filed by Mohd. Asif Khan, who alleged that his wife had contracted another marriage without obtaining a divorce from him. The petitioner approached the High Court after claiming that the police had failed to register a case despite his complaint concerning the alleged second marriage.
The controversy arose from the petitioner’s claim that he had married respondent No. 5 in March 2024. According to him, their matrimonial relationship continued to subsist when his wife allegedly left their matrimonial home on October 27, 2026. Two days later, he reportedly came to know that she had been enticed away and had contracted another marriage with respondent No. 4.
The petitioner alleged that the subsequent marriage had taken place without legally dissolving his marriage with respondent No. 5. He consequently approached the concerned police station seeking appropriate legal action against both individuals. However, despite his complaint, no criminal case had been registered.
A significant aspect of the dispute was an earlier protection order passed by a Coordinate Bench of the Srinagar Wing of the High Court on October 31, 2026. Respondent Nos. 4 and 5 had approached the Court through a writ petition seeking protection, following which the authorities were directed to examine their grievance and ensure adequate security so that nobody interfered with their married life.
However, the earlier Bench had expressly clarified that it was not expressing any opinion regarding the validity of the marriage between the two respondents.
The petitioner relied upon this distinction while approaching the High Court, contending that the earlier protection order could not prevent the police from examining his allegation that his legally subsisting marriage had been violated through a subsequent marriage.
The case therefore raised an important question concerning the scope and effect of protection orders passed by constitutional courts. In particular, it required the Court to clarify whether a direction protecting individuals from interference or threats could be interpreted as preventing the police from investigating allegations of criminal conduct involving those same individuals.
The legal issue also brought into focus the distinction between providing protection to a person’s life and liberty and determining the legality of that person’s conduct. A protection order is generally intended to safeguard individuals against threats, harassment or unlawful interference. It does not ordinarily adjudicate disputed civil or matrimonial rights, nor does it confer immunity from criminal liability.
The relevant legal framework concerning bigamy includes Section 82 of the Bharatiya Nyaya Sanhita, 2023, which deals with marrying again during the lifetime of a husband or wife in circumstances where such marriage is void because of the subsistence of the earlier marriage. The corresponding provision under the erstwhile Indian Penal Code was Section 494.
The Court’s observations are significant because they clarify that the protection granted by a court cannot be extended beyond its actual purpose. While individuals may seek judicial protection against threats or interference, such protection cannot prevent another person from approaching the police with a complaint disclosing a cognizable offence.
Ultimately, Justice M.A. Chowdhary disposed of the petition by directing the petitioner to submit a formal complaint before the concerned police station within one week. The police were thereafter directed to register a case and proceed in accordance with law if the complaint disclosed the commission of a cognizable offence.
Arguments of the Parties:
The petitioner, Mohd. Asif Khan, approached the Jammu and Kashmir and Ladakh High Court alleging that his wife had contracted a second marriage without obtaining a divorce or otherwise legally dissolving their existing matrimonial relationship.
The petitioner’s case was that he had married respondent No. 5 in March 2024 and that their marriage continued to subsist. He alleged that on October 27, 2026, his wife went missing from their matrimonial home. Subsequently, on October 29, 2026, he learnt that she had allegedly been enticed away and had married respondent No. 4.
According to the petitioner, the alleged second marriage had taken place while his marriage with respondent No. 5 remained legally valid. He therefore approached the concerned police station seeking criminal action against the individuals allegedly involved in the subsequent marriage.
The petitioner’s grievance was that the police had not registered a case despite being informed about the alleged offence. He maintained that the complaint raised a serious legal issue concerning the validity of the subsequent marriage and the alleged commission of an offence by entering into another marriage during the subsistence of an earlier one.
An important aspect of the petitioner’s submission concerned the earlier protection proceedings initiated by respondent Nos. 4 and 5 before the Srinagar Wing of the High Court.
The petitioner brought to the Court’s attention that the two respondents had filed a writ petition seeking protection and that a Coordinate Bench had passed an order on October 31, 2026, directing the official respondents to examine their grievance and ensure adequate security.
The earlier order had also directed that nobody should interfere with their married life. However, the Coordinate Bench had specifically clarified that it had not expressed any opinion concerning the validity of their marriage.
The petitioner sought to distinguish the protection granted under the earlier order from the separate question of whether the alleged second marriage was legally permissible. According to his case, the protection order could not prevent the police from examining allegations of an offence arising from the subsequent marriage.
During the hearing, the petitioner’s counsel submitted that the matter could appropriately be disposed of by directing the police to register a case and investigate if the complaint disclosed that respondent No. 5 had contracted another marriage while her marriage with the petitioner was still subsisting.
The petitioner’s counsel did not press for any independent adjudication of the validity of the earlier protection order. Instead, the request before the Court was limited to ensuring that the police examined the complaint in accordance with law.
The official respondents, on the other hand, were represented by their counsel, who stated that they were not opposed to the petitioner’s request for an appropriate direction to the police.
The official respondents did not contest the proposed disposal of the petition through a direction requiring the police to examine the complaint and take necessary action if a cognizable offence was disclosed.
Accordingly, the dispute before the High Court was relatively narrow. The Court was not required to determine conclusively whether the alleged second marriage had actually taken place, whether the first marriage was legally subsisting or whether the respondents were guilty of any offence.
Rather, the immediate question was whether the earlier protection order could operate as a bar against the police examining a subsequent complaint alleging criminal conduct.
The petitioner’s position was that the protection order had not determined the legality of the alleged marriage and therefore could not be used to prevent an independent investigation. The official respondents did not oppose the request for an appropriate direction.
Court’s Judgment:
Justice M.A. Chowdhary of the Jammu and Kashmir and Ladakh High Court considered the petitioner’s grievance, the earlier protection order passed by a Coordinate Bench and the submissions made by the counsel appearing for the parties.
The Court accepted the request for directing the police to examine the complaint and clarified that an order passed in protection proceedings does not create immunity against criminal investigation.
The Bench emphasised that the purpose of granting protection is to safeguard individuals against threats or unlawful interference. Such an order does not conclusively determine the legal rights of the parties or prevent the investigating agency from examining allegations of criminal conduct.
Protection orders do not determine the legal rights of parties
The Court first clarified the limited nature of the earlier protection order dated October 31, 2026.
Respondent Nos. 4 and 5 had approached the Srinagar Wing of the High Court seeking protection, following which the authorities were directed to consider their grievance and ensure adequate security.
The order also contained a direction that nobody should interfere with their married life. However, the Coordinate Bench had expressly clarified that it had not examined or expressed any opinion regarding the validity of their marriage.
Justice Chowdhary observed that passing a direction in a protection matter does not determine the substantive legal rights of the individuals concerned.
This distinction was central to the dispute. The earlier order was concerned with the protection of the respondents and preventing unlawful interference. It was not a judicial declaration that their marriage was legally valid or that no criminal proceedings could subsequently be initiated against them.
The High Court therefore rejected any interpretation under which the protection order could be treated as conclusively settling the matrimonial dispute or preventing the petitioner’s complaint from being examined.
A direction granting protection cannot be extended beyond the purpose for which it was issued. Unless a court has actually adjudicated a particular legal issue, a protective direction cannot be treated as a final determination of that issue.
The Court’s reasoning establishes an important distinction between protection against physical threats and immunity from the operation of criminal law.
Individuals who approach constitutional courts seeking protection are entitled to have their legitimate concerns regarding personal safety examined. However, such protection does not extinguish the rights of other individuals to approach the police or competent authorities with independent allegations of criminal offences.
Police investigation cannot be barred by an earlier protection order
The Court specifically clarified that an investigating agency is not prohibited from examining a complaint against a person merely because that person has previously obtained a protection order from a court.
It observed:
“Passing of a direction, in a protection matter, does not determine the rights of the parties. The investigating agency is not debarred from looking into a complaint, against any of the persons seeking protection, if an offence is constituted on disclosure, by a complainant.”
This observation makes it clear that protection proceedings and criminal investigation operate in separate legal spheres.
A protection order may require the authorities to ensure that an individual is not subjected to threats, harassment or unlawful interference. However, it does not prevent the police from discharging their statutory responsibilities when information concerning a cognizable offence is brought to their attention.
The Court’s approach also reinforces the principle that judicial orders must be interpreted according to their actual scope and purpose. A protective direction cannot be expanded to create an immunity that the court never intended to grant.
In the present case, the earlier order had expressly left the question of the validity of the marriage open. Consequently, the investigating agency remained free to examine the petitioner’s subsequent complaint in accordance with law.
The High Court’s clarification is particularly important because protection orders are sometimes relied upon in matrimonial disputes involving competing claims and allegations. The judgment makes clear that obtaining protection cannot prevent the other party from pursuing independent legal remedies.
Protection cannot become a licence to commit an offence
The Court made its position particularly clear by observing that judicial protection cannot be used as a blanket licence to commit an offence or to shield an alleged offender from criminal investigation.
Justice Chowdhary observed:
“Protection order cannot be a blanket licence to commit any offence or to screen the offender.”
This statement reflects a fundamental principle of criminal jurisprudence: an order passed for the protection of an individual’s life or liberty does not confer immunity from criminal liability.
The protection granted by a court is intended to prevent unlawful interference and ensure personal safety. It cannot be interpreted as permission to engage in conduct prohibited by law.
Similarly, the existence of a protection order does not prevent the police from examining subsequent events that may disclose a criminal offence.
The Court’s observation also draws attention to the importance of maintaining a distinction between the rights of protected individuals and the rights of persons who may have legitimate complaints against them.
The law protects individuals from threats and unlawful harassment, but that protection must operate within the framework of the law. It cannot be used to obstruct a lawful investigation or prevent the enforcement of criminal provisions.
Second marriage during subsistence of an earlier marriage constitutes an offence
Another important aspect of the judgment concerned the allegation that respondent No. 5 had contracted a second marriage without legally dissolving her earlier marriage with the petitioner.
The Court observed:
“If a married woman performs second marriage, during subsistence of early marriage, it constitutes an offence.”
The observation was made in the context of the petitioner’s allegation that his marriage with respondent No. 5 remained legally subsisting when she allegedly married respondent No. 4.
The relevant statutory provision concerning bigamy is Section 82 of the Bharatiya Nyaya Sanhita, 2023. It addresses the offence of marrying again during the lifetime of a husband or wife in circumstances where the subsequent marriage is void because of the subsistence of the earlier marriage.
Under Section 82(1), a person who marries again during the lifetime of a husband or wife, where the subsequent marriage is void by reason of the earlier marriage, may be punished with imprisonment of either description for a term extending up to seven years and may also be liable to fine.
Section 82(2) deals with circumstances in which the person conceals the fact of the earlier marriage from the person with whom the subsequent marriage is contracted and provides for enhanced punishment.
The corresponding provision under the Indian Penal Code was Section 494, which criminalised marrying again during the lifetime of a spouse in circumstances rendering the subsequent marriage void.
However, the existence of an earlier marriage alone does not automatically establish the offence. The applicable statutory requirements must be satisfied, including proof that the earlier marriage was legally subsisting and that the subsequent marriage was solemnised in circumstances attracting the prohibition under the law.
Questions concerning the validity of the first marriage, its dissolution and the legal requirements governing the alleged subsequent marriage may therefore require examination during the investigation and subsequent proceedings.
In the present case, the High Court did not conclusively declare respondent No. 5 guilty of bigamy or hold that the alleged second marriage had been legally established. It merely clarified that if the complaint disclosed the commission of a cognizable offence, the police could not refuse to examine it on the ground that the respondents had earlier obtained a protection order.
This distinction is important because the Court’s direction was intended to facilitate lawful investigation rather than determine criminal liability at the stage of the writ petition.
Earlier protection order did not prevent examination of the matrimonial dispute
The High Court also considered the express clarification contained in the earlier protection order.
The Coordinate Bench had granted directions for providing adequate security to respondent Nos. 4 and 5 and preventing interference in their married life. However, it had deliberately refrained from expressing any opinion regarding the validity of their marriage.
Justice Chowdhary considered this aspect relevant because it demonstrated that the earlier proceedings had not adjudicated the underlying matrimonial controversy.
A direction to protect individuals cannot be equated with a declaration that every act or relationship involving them is legally valid.
Similarly, the fact that a person has obtained protection from threats does not deprive another person of the opportunity to invoke the criminal justice system where an independent offence is alleged.
The High Court therefore ensured that the earlier protection order would not be interpreted as an obstacle to the examination of the petitioner’s complaint.
The judgment does not, however, cancel or modify the earlier protection order. It preserves the distinction between the protection granted in those proceedings and the independent criminal investigation that may arise from the subsequent complaint.
Police directed to act if a cognizable offence is disclosed
After considering the submissions, the Court accepted the limited request made by the petitioner’s counsel.
Instead of determining the disputed allegations itself, the High Court directed the petitioner to lodge a formal complaint before the concerned police station within one week from the date of the order.
The police were thereafter directed to register a case and proceed in the matter if a cognizable offence was disclosed from the complaint.
The direction is consistent with the statutory framework governing the registration of information relating to cognizable offences under Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which corresponds to Section 154 of the erstwhile Code of Criminal Procedure.
Under the BNSS framework, information disclosing the commission of a cognizable offence must be dealt with in accordance with the prescribed procedure. The police are required to examine the information and take appropriate steps in accordance with law.
The High Court’s direction did not amount to an automatic declaration that the respondents had committed an offence. Rather, it required the petitioner to submit a formal complaint and directed the police to take necessary action if the allegations dsclosed a cognizable offence.
This approach also preserves the distinction between the reg