Second marriage during the subsistence of the first marriage is prohibited in India, and the relationship that results from it is invalid. Despite the fact that the law is clear on the subject,' second marriage' is a frequent practice in Indian society. Second wives in India face limited legal protection as a result of the aforementioned disparity between the law and social practice. With the implementation of the Hindu Marriage Act, 1955 (HMA), one of the conditions for a lawful marriage was that neither party had a spouse living at the time of the marriage. Unless custom permitted it, a woman could not marry a second spouse while her first husband was still alive under the old law. There was no such prohibition against men until some states created laws prohibiting bigamous marriages and instituting the norm of monogamy among Hindus. Second marriages were considered null and void ab initio after 1955, according to the aforementioned law and Section 11 of the Hindu Marriage Act. In this regard, the Hindu Marriage Act requires a marriage according to traditions and rites, as well as the spouse of the first marriage being a legally wedded spouse and the second marriage existing on the date of the second marriage.
The societal shame of being a second wife, the lack of legal status for the relationship, and the immense sorrow of having been duped into the marriage are undeniably gloomy for a woman. Even if there is no recognition for a second wife, she may be eligible for support according to the judicial interpretation of the current legislation outlined above. In the absence of any clear legal rules, her chances of claiming her rights are largely dependent on the judges' discretion.
Even under criminal law, proving bigamy is difficult because the marriage must be lawfully performed in order to prove the offense of bigamy. In such circumstances, men usually take advantage of legal loopholes to defend themselves.
Historical Perspective
Though monogamy has been the rule since Vedic times, polygamy has existed as an exception. However, the wife who married first was the wife in the fullest sense. According to one Manu book, a man could have a second marriage following the death of his first wife. Another passage of the text justifies a spouse marrying another woman. A wife could only be superseded and a second marriage was legitimate if she was barren, sick, or vicious, as well as if she consented.
Generally, the first wife took precedence over the others, and her first-born son took precedence over his half-brothers. It is likely that the successive wives were initially regarded as merely a higher class of concubines. Later, in the courts of British India, it was settled law that a Hindu male might marry again without restriction while his previous marriage was still in force (second marriage) without his wife's agreement and justification.
However, custom forbade a second marriage without the approval of the first wife and without making provisions for her. In Raghveer Kumar v Shanmukha Vadivar, it was found that a custom widespread among Nadars in Udumalapeta Taluk prohibiting a second marriage, even if established, did not have legal weight.
Proof Of Second Marriage
The Supreme Court has ruled that proof of second marriage solemnization in accordance with the essential religious rites applicable to the parties is absolutely necessary and a must for a conviction for bigamy, and that mere admission on the part of the accused that he had contacted second marriage was insufficient and is not evidence for the purpose of proving marriage in an adultery or bigamy case. Living together as husband and wife would not suffice in a customary marriage when custom is not invoked. However, if it can be demonstrated that dola was brought, bhanwar (saptapadi) and kanyadaan occurred, the whole vivah was read out, and the marriage was done by a purohit, the marriage must be considered lawfully solemnized.
Where a Hindu marriage is performed according to religious rites, homa and saptapadi are required, and if they are not performed, the marriage cannot be deemed a solemnized marriage under the provision. There is nothing in the legislation that prohibits a prosecution for an offense punishable under Section 494 of the penal code if it is not preceded by a declaration obtained under the provisions of the act that the second marriage is void. To fall under the purview of Section 494, the second marriage must be legally valid.
According to the concise Oxford dictionary, the word "solemnize" implies "to celebrate the marriage with proper ceremonies and in due form." As a result, unless the marriage is 'celebrated or performed with adequate rituals and due form,' it cannot be considered solemnized. For the purposes of Section 17 of the act, it is therefore essential that the marriage to which Section 494, I.P.C applies due to the requirements of the act be celebrated with adequate rituals and in due form. Simply performing some ceremonies with the purpose that the parties be considered married does not constitute the rites prescribed by law or accepted by any established tradition. Conclusion
The social stigma attached to being a second wife, the absence of any legal status to the relationship, and the enormous pain of being cheated into the marriage are undoubtedly extremely depressing for a woman. Even though there is no recognition given to a second wife, due to the judicial interpretation of existing law as discussed above, she may have some chances of getting maintenance. In the absence of any clear provisions under the law, her chances of claiming her rights are largely dependent on the discretion of the judges.
Even under criminal law, it is extremely to prove bigamy, as the marriage has to be validly performed to prove the offense of bigamy. Usually, these loop holes in the law are exploited by men to defend themselves in such cases.
Given this background of contrasting legal precedents, lawmakers should make clear provisions to protect the rights of those women who have been duped into 'second marriages' so as to bring them some respite.
