Is Second Marriage without Divorce Legal in India?
Date : 03 May, 2021
Post By Advocate Akshaya Venkataramanan
Marriage is a life-changing decision of one’s life, people say that if you marry the right person your life will be amazing but if you marry the wrong person your life will be a living hell. Some cultures and people say that two people do not just marry in this life but for seven lives and it's not right to marry twice. Indian society considered divorce taboo. Society is against the idea of divorce even if the married couple are not happy or they can’t live together but society forces them to live together no matter what. In this blog, we are going to discuss what does dispose of mean in a divorce case? How to do a second marriage without divorce? What does a wife have to do for a second marriage without divorce first husband? What is the status of second marriage without divorce and can a woman remarry without divorce? History: There was a time when Kingship was there at that time the King was allowed to have more than one wife. Whenever any king wins over any kingdom by killing the king of that kingdom after that they used to marry their wives or sometimes, they used to do it for expanding their kingdom like to acquire any kingdom they agreed to marry the princess of that kingdom. India is known for its culture and versatility, in India language and culture change almost every 5-6 kilometers. Many personal laws have their own law, as in India there are so many religions and some of them have their own personal laws regarding marriage as well. In some laws only one marriage is allowed but, in some religions, more than one marriage is allowed. Laws Regarding 2nd Marriage Without Divorce: Second marriage without divorce in India is not legal or it is considered an offence under different laws. Laws that contain the provisions regarding second marriage are as follows: The Hindu Marriage Act: Section 5 of The Hindu Marriage Act talks about the conditions which are required to consider marriage as valid. The conditions in the context of second marriage are that at the time of marriage, the husband or wife of the parties should not be living or should not be alive or the first marriage had been dissolved at the time of second marriage otherwise second marriage will be considered as void under Section 11 of The Hindu Marriage Act. Indian Penal Code: Section 494 of the Indian Penal Code states that if a person marries while his/her husband/wife is alive at the time of marriage it will consider as bigamy, which is a punishable offence. If the husband/wife thinks they can also file a complaint under Section 415 of the Indian Penal Code which talks about cheating. Evidence Act: Under section 114 of the Evidence Act, the provision regarding presumption is mentioned with respect to the facts regarding human actions. There are other personal laws as well under which provisions regarding second marriage are mentioned and its status: Parsi Marriage and Divorce Act: Section 5 of the Parsi Marriage and Divorce Act declares bigamy as void or shall be punished under 494 of IPC or be dissolved. Christian Marriage Act: Under this Act bigamy is not specifically mentioned but the registration form of marriage is only for bachelors or for widow/widower and to apply for the marriage certificate it states that the person who is marrying is having his/her spouse alive at the time of marriage shall be punished under section 419 of IPC. Special Marriage Act: Section 44 of the Special Marriage Act states that bigamy is a punishable offence under sections 494 and 495 of the Indian Penal Code. Muslim Law: Under Muslim, Law bigamy is not specifically mentioned but in Quran, it is mentioned that a male can marry four times in his life or can have four wives but on one condition that, the male will give respect, love, and treat the wife equally then only he can have four wives at the same time otherwise he can only have one wife.
Punishment Under Different Laws for Bigamy Hindu Marriage Act: Under Section 17 of the Act, the punishment for bigamy is given, which states that if a person commits bigamy it will be dealt with under section 494 and 495 of the Indian Penal Code and it will be considered a criminal offence. Indian Penal Code: Section 494 of the Indian Penal Code said that if a person commits bigamy shall be punished with imprisonment for up to seven years or a fine or both. Section 495 of the Indian Penal Code talks about the fact that if a person has committed bigamy by hiding the fact about his/her first marriage shall be punished for imprisonment up to 10 years or fine or both. When can a Second Marriage be considered to be Valid? Although second marriage is illegal in India there are certain cases when second marriage can be considered as valid which are as follows: If the first marriage of the person is declared void by the court having the jurisdiction. If the spouse of the person marrying again is missing for seven years and no one heard from him/her but the other party should be aware of the fact that the spouse of the person he/she is marrying is missing for seven years. If there is no proof that shows that these conditions or exceptions are not fulfilled at the time of second marriage. Legal Rights for Second Wife: Second marriage during the existence of first marriage has no standing as second marriage is considered as void therefore the second wife has no legal rights but there are remedies. If a man marries a woman during the existence of his first marriage without disclosing about the first marriage then the second wife can file a case under cheating. Status of the Children Born out of Second Marriage: Under Section 11 and 16 of The Hindu Marriage, it is mentioned that if a child born out of any void marriage that child will be considered legitimate because if the marriage of his/her parents would have been valid then the child born out of it would be considered as legitimate. Therefore since the child is legitimate he/she has a valid and legitimate right over his/her father or mother’s property both ancestral or personal except the ancestral joint family property. Conversion for Second Marriage: Loopholes are always there whenever anything is barred by law or legal provisions, here also loophole is there that in Hindu Law bigamy is an offence but second marriage in Islam without divorce is valid which attracts the person who wants to marry a second time without leaving the first spouse. But the law makes it sure that any law made by them neither be misused nor be overlooked therefore it is specifically mentioned that conversion for second marriage is barred under a case; Sarla Mudgal v. Union of India & Ors: In this case, it was held that one personal law cannot make the marriage conducted according to the other personal law dissolved. If a person converts himself/herself for marrying a second time the marriage would be considered void and the person committing will be charged under section 494 of the Indian Penal Code. Under the Parsi Marriage and Divorce Act, there is a provision which states that even if the person converts himself/herself that person will have to Parsi law, and under Parsi law, bigamy is a punishable offence therefore in Parsi law conversion is not an option for second marriage without divorce. What does Dispose mean in Divorce Case? Court cases have a status that shows the legal authorities and concerned parties about their case for example when the case is still continuing and the judgment is not passed or the decree is not passed by the judge then the case will be considered as “active” and when the judge passes the judgment or the decree has been passed then the case would be considered as “disposed”. In divorce cases also divorce case status disposed of means that the decree or the judgment is pronounced by the judge. In other words, it means that the divorce case with status disposed of is being finalized and the case is closed now. How to declare the second marriage void and who can file a case for declaring the second marriage void? A marriage can be declared void by the person who married to the person who is already married, which means if a man marries again during the existence of the first marriage then the second wife can file to declare their marriage as void. The first wife cannot file a case for declaring the marriage void but the first wife can file for divorce on the ground of bigamy. Get in touch with the best matrimonial lawyer How to file for divorce? If the person has committed bigamy then the other spouse can file for divorce on this ground by following the given procedure: Contact a lawyer who specializes in divorce cases He/she will listen to the whole facts about the case, then he/she will draft a legal notice which states that you want to file a divorce case on the ground of bigamy and it should be signed by both lawyer and the party. Petitions will be filed on the basis of facts in the family court and the court will give the date for the hearing. The parties have to be presented on the given mentioned hearing date. After listening to the facts and evidence provided the judge will pass the decree.
Conclusion: Hence it is concluded that the second marriage without divorce in India is illegal unless the custom or personal law specifically considers the second marriage legal. In India the marriages are mostly performed according to the personal law and either there is a specific provision that declares second marriage while the first marriage is not dissolved as void or there is another provision that indirectly declares the second marriage void for example in Christian Law. Parsi Law and Hindu law makes it clear that second marriage is void but in Islam or Muslim law four marriage are allowed only if the husband can give equal rights and respects to all the wives. Also, a woman can remarry only after the dissolution of her first marriage but not without dissolution. And when the divorce case is finalized and the decree has been passed the case will get the status of disposed of.
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