Is second marriage without divorce legal in India?

Second marriage without divorce is generally illegal in India. If you marry again while your first marriage is still legally valid, the law usually treats it as bigamy, a criminal offence under BNS Section 82 / IPC Section 494, and the second marriage is void.

At the same time, many Indian traditions say a marriage “lasts for seven lives” and consider it morally wrong to marry again while your spouse is alive. Divorce has long carried social stigma, so many people stay in unhappy marriages because family and society resist separation.

This article explains, in simple terms:

• What happens if someone remarries without a divorce, including criminal and civil consequences
• When a second marriage is legally allowed in India
• What a wife or husband must do before remarrying

Because India has multiple religions and personal laws, rules about marriage and divorce differ across Hindu, Muslim, Christian, Parsi and Special Marriage Act frameworks. However, the overall legal system strongly protects monogamy, and it treats most second marriages during the lifetime of a spouse as bigamy, unless the first marriage has legally ended or is no longer subsisting in law.

What is the punishment for second marriage without divorce in India?

Getting married a second time without obtaining a divorce is a crime in India. It is punishable under the Bharatiya Nyaya Sanhita (BNS) and the Indian Penal Code (IPC). If someone marries again while their first husband or wife is still alive, they can be sent to jail for up to seven years and fined. This rule is found in Section 82(1) of the BNS and the earlier Section 494 of the IPC.

The punishment becomes much stricter if the person hides the fact of their first marriage from their new partner. Since this involves lying and cheating the new spouse, the law treats it as a more serious offence. In such cases, the jail time can increase to ten years, along with a fine. This falls under Section 82(2) of the BNS (formerly Section 495 IPC).

Beyond the jail sentence, the law considers the second marriage invalid from the very start. This means the second partner is not legally recognized as a husband or wife. However, the law generally ensures that any children born from this marriage still have legal rights, such as the right to inheritance.

When is a second marriage legally valid in India?

A second marriage is legally valid in India only if the first marriage is no longer subsisting in the eyes of the law. If these conditions are not met, remarriage may be treated as bigamy under Section 494 IPC. The valid grounds are:

• After a Final Divorce Decree: Remarriage is allowed only after a court has passed a divorce decree and the appeal period is over (or the appeal has been dismissed). If a person marries while an appeal is still pending, the marriage is risky and potentially invalid.
• After a Decree of Nullity (Annulment): A second marriage is valid if the court has declared the first marriage void or voidable through a decree of nullity, and this decree has become final. This legally treats the first marriage as if it never existed.
• After the Death of a Spouse: If the first husband or wife has passed away, the marriage ends automatically. The surviving spouse can freely remarry upon producing a valid death certificate.
• After a Court Declaration of Presumed Death: If a spouse has been missing for seven years or more, the family can seek a court declaration under the 7-year rule (BSA Section 111). Once the court officially declares the missing spouse "presumed dead," the other party can lawfully remarry.

Important Note: A decree of Judicial Separation is not the same as a divorce. It only suspends marital duties but does not dissolve the marriage. A person cannot legally remarry based on judicial separation alone.

Author’s note:
In practice, a major risk appears when people remarry soon after a trial court divorce, without waiting for the appeal period. If an appeal restores the first marriage, the second marriage can trigger bigamy complaints.

What rights does the first spouse have if their partner marries again?

If a partner marries again while the first marriage is still valid, the first spouse can use criminal, civil, and financial remedies. The first spouse can seek punishment, end the marriage, and claim maintenance and other protections.

1. Right to file a criminal complaint for bigamy

The first spouse can:

• File a police complaint / FIR for bigamy under BNS Section 82 (earlier IPC 494–495).
• Ask the court to punish the bigamous spouse with imprisonment and fine.
• Use evidence like marriage certificates, photos, witness statements and social media posts to show both marriages.

This right exists even if the second marriage is void in law. The offence focuses on the act of marrying again during a subsisting marriage.

2. Right to seek divorce on the ground of bigamy

The first spouse can:

• File a divorce petition before the family court.
• In many personal laws (for example under the Hindu Marriage Act), bigamy / second marriage or cruelty / adultery-type conduct can support divorce.
• Use proof of the second marriage ceremony as a ground for dissolution of the first marriage.

The first spouse generally cannot file a separate case just to declare the second marriage void; that is usually done by the second spouse. But divorce can still be granted based on bigamy-like conduct.

3. Right to maintenance, alimony and financial claims

Depending on the law and facts, the first spouse can:

• Claim interim maintenance during divorce proceedings.
• Seek permanent alimony / lump sum or monthly maintenance after divorce.
• Enforce streedhan and return of gifts / dowry articles (for wives).
• Claim residence rights under the Domestic Violence Act in suitable cases.

Courts often treat second marriage as serious misconduct and may consider it while deciding the amount of maintenance or compensation.

4. Right to custody and welfare of children

If the couple has children, the first spouse can:

• Seek custody, visitation, or joint parenting orders.
• Ask for child maintenance from the bigamous spouse.
• Highlight the second marriage as a factor when the court assesses the conduct and stability of the other parent.

The child’s best interests remain the main test, not the parent’s fault alone.

5. Right to protect property and inheritance interests

The first spouse can:

• Assert rights in matrimonial home, especially under HMA, SMA and DV Act.
• Claim share in joint assets and, under Hindu law, protect her and her children’s interests in coparcenary / ancestral property.
• Challenge fraudulent transfers meant to defeat her maintenance or property claims.

The second marriage is usually void, so the second spouse does not get the same spousal property rights the first spouse has.

6. Right to social and legal remedies

The first spouse can also:

• Seek protection orders under the Domestic Violence Act where the second marriage leads to abuse, harassment or economic violence.
• Ask for restraining orders to stop further harassment.
• Use mediation or counselling services provided by family courts or legal services authorities to explore settlement, support or safe exit.

What rights does the second wife have if the first marriage is not dissolved?

Generally, a woman who marries a man who is already legally married is not considered a "lawful wife." However, Indian courts understand that often these women are victims of deception. If a woman acted in good faith or is facing abuse, the law offers certain protections.

1. Legal Recognition

Technically, a second wife in this situation does not have the full legal status of a wife. However, courts often look at whether the couple lived together like a husband and wife.

For instance, in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha (2010), the court ruled that women in such relationships can still seek help under the Domestic Violence Act, because they lived in a relationship that looked and felt like a marriage.

2. Right to Maintenance (Financial Support)

A second wife can claim monthly financial support, especially if she was tricked into the marriage. Under Section 125 of the CrPC, courts often grant maintenance if the woman did not know about the first marriage.

• In Satya Devi v. Khem Chand (2013), the court awarded maintenance to a second wife because she was innocent and unaware of the husband's previous marriage.
• In Mallika and Anr v. P Kulandi, the court gave maintenance after the wife proved she was deceived.
• The Supreme Court has clarified that the definition of "wife" should be interpreted broadly to help women survive financially, even if the marriage has legal flaws.

3. Property and Inheritance Rights

The second wife usually has limited rights here. She does not automatically inherit her husband's property like a first wife would. However:

• She may claim a share in property they bought together.
• Rights of Children: Importantly, children born from a second marriage are considered legitimate by law. They have a full right to inherit their father's property, even if their parents' marriage is technically invalid.

4. Protection from Violence

Every woman has the right to be safe. A second wife can use the Domestic Violence Act to get protection orders against physical, emotional, or financial abuse. The law treats domestic abuse seriously, regardless of whether the marriage is legally perfect.

5. Rights Against Deception

If the husband lied and said he was unmarried, the second wife can take criminal action. She can file a case for bigamy (cheating) under Sections 494 and 495 of the IPC.

Courts see this lying as a serious crime. Evidence like text messages or false marriage affidavits can be used to prove he cheated her, which strengthens her claim for financial support.

Legal status of children from a second marriage without divorce?

Children from a second marriage without divorce are generally not punished for their parents’ actions. Indian law treats them as legitimate in most cases, especially under Hindu law, but their property rights have some limits.

Children born from a second marriage without the first marriage being legally dissolved are considered legitimate under Indian law. The Supreme Court in Tulsa v. Durghatiya (2008) upheld the legitimacy of such children, emphasizing the protection of their rights to avoid stigmatization due to their parents' marital status. These children have the right to inherit their father's self-acquired property, although their rights to ancestral property may be limited.

In simple terms:

• Children from the second marriage can inherit self-acquired property of their father without limitations.
• For ancestral property (joint family property), the share is limited to the parent's proportion of the property at the time of their death, assessed by a notional partition.
• This limits the second wife's children from claiming an unrestricted share in the ancestral family property independent of the parent's coparcenary share.

Section 16 of the Hindu Marriage Act, 1955, specifically grants legitimacy and inheritance rights to children born from void or voidable marriages, including second marriages without divorce. This is reinforced by various high court rulings, such as the Kerala High Court’s recent decision affirming that children from void marriages have property and inheritance rights just like children from valid marriages.

Therefore, while the second marriage itself is void and bigamous, children born to the second wife are legally recognized as legitimate heirs with rights to maintenance, custody, and inheritance of the father's property under Hindu personal law and relevant statutes. This legal protection ensures that children are not penalized for the marital status of their parents.

Can conversion or change of religion legalize a second marriage?

No, changing one's religion (conversion) does not make a second marriage legal in India if the first marriage has not been dissolved by a valid divorce.

1. The Landmark Ruling: Sarla Mudgal Case

In the famous case of Sarla Mudgal v. Union of India (1995), the Supreme Court firmly closed this loophole. The Court ruled that:

• A Hindu man who converts to Islam solely to marry a second time is still guilty of bigamy.
• Conversion does not automatically end the first marriage; it remains valid under the original personal law.
• Such acts are considered an attempt to bypass the law and are punishable.

2. Legal Consequences Under IPC and BNS

Indian laws, including the Hindu Marriage Act and the new Bhartiya Nyaya Sanhita (BNS), strictly prohibit bigamy regardless of religion.

• It is a Crime: Marrying again by changing religion is still an offence under Section 494 of the IPC (and relevant BNS sections).
• Void Marriage: The second marriage is considered void (invalid) in the eyes of the law.
• Fake Conversion: Courts check if the conversion was genuine. If it was done just to get married again, it is not accepted as a valid defence.

In short: Legally, you cannot use religious conversion as a trick to get a second wife or husband. The first marriage must be ended by a court divorce first.

How we suggest you approach second marriage disputes

Dealing with a second marriage dispute can be stressful. Whether you suspect your partner is cheating, you have discovered you are a second wife, or you are planning to remarry, here is a practical guide on what to do.

1. What to do if you suspect your spouse has married again?

• Save Proof Immediately: Save photos, wedding invitations, social media posts, emails, and chats. Take clear screenshots that show the date and time.
• Gather Documents: Keep your original marriage certificate and ID proofs ready. Try to find details of the second wedding (date, place, priest, or witnesses).
• Consult a Lawyer First: Speak to a family lawyer before confronting your spouse. Ask about filing a complaint for bigamy under Section 494 IPC (or BNS Section 82) alongside a divorce or maintenance petition.

2. What if you discover you are the second wife?

• Verify the Truth: Do not rely on words. Ask for the first marriage certificate and the legal divorce decree (or death certificate of the first spouse). Check that the divorce is final and no appeals are pending.
• Protect Yourself: Keep copies of all financial transfers, joint bank accounts, and property papers.
• Know Your Rights: If you are facing abuse, ask a lawyer about remedies under the Domestic Violence Act. You may also be able to claim maintenance if you were tricked into the marriage.

Also Read: Can a Woman Remarry Without Divorce in India? Legal Consequences and Implications

3. What to check before entering a second marriage?

• Ensure You are Free to Marry: Make sure your own first marriage is legally ended (via a final divorce decree or death certificate). Keep certified copies ready.
• Ask for Written Proof: Insist on seeing the original court divorce decree or death certificate of your partner's previous spouse. Do not accept verbal claims.
• Avoid Shortcuts: changing religion (conversion) does not automatically end a previous marriage. Marrying again after conversion can still lead to criminal charges for bigamy.
• Legal Review: Show the documents to a lawyer before the wedding to ensure everything is legal.

4. How to prepare if you plan to file a case?

• Organise Evidence: Collect marriage certificates, photos, videos, call records, and screenshots of chats.
• Plan with a Lawyer: Discuss which case to file first (divorce, bigamy, or maintenance). Ask for a clear, step-by-step plan rather than just focusing on the final result.

5. General Precautions

• Keep Copies: Always keep digital and physical copies of every legal document you sign or receive.
• Read Before Signing: Never sign blank papers or documents you do not understand.
• Seek Professional Help: Do not rely only on advice from friends or relatives. If something is unclear, ask your lawyer to explain it simply before you agree.

Conclusion

Second marriage without divorce in India almost always creates serious legal risk: criminal bigamy charges, void marriages and long-term financial and emotional fallout. The safest path is to regularise the first marriage status before any new relationship is formalised.

If your life already involves a second marriage situation as a first spouse, second spouse or partner planning to remarry get personalised advice from a Family lawyer. Early, accurate guidance usually prevents bigger problems with criminal cases, property disputes and children’s rights.