Can A Woman Get Married Again Without Getting A Divorce?

In India, marriage is a union which is recognized legally and the laws governing it vary from religion to religion and in the personal laws applicable thereto. What about the case when the married woman wants to marry someone else without divorcing her husband? And the question of Can a woman get married again without getting a divorce? is also socially controversial and very complicated legally.

The article explores the legal consequences, restrictions imposed by personal law, and criminal implications of a second marriage when the first is not yet dissolved. It also analyzes statutes like the Hindu Marriage Act, Christian Marriage Act, and IPC provisions on bigamy.

Is It Legal To Marry Again Without Getting A Divorce?

Not at all legal. According to most of the personal laws in India, while a marriage between two persons is valid, a woman (or man) cannot enter into a marriage with someone else during the subsistence of the first marriage unless that first marriage has been legally dissolved by divorce or annulment.

In other words, marrying again without a divorce is termed "bigamy," which Section 494 of the IPC (this section has now been replaced by Bharatiya Nyaya Sanhita (BNS), section 82) punishes criminally.

Illustration: If a woman marries another man while still married according to Hindu law, the second marriage is void, and she is liable for prosecution for the offence of bigamy.

This would hold true irrespective of whether the second marriage is performed under different religious rites or in a different state.

Indian Law For Second Marriage Without Divorce

Indian law is very clear on one point: unless legally divorced or the first marriage has been annulled, a person cannot remarry as long as the first marriage remains valid. Among many other things, the following are worth noting in reference to some relevant provisions in various statutes and different religions in India:

Hindu Marriage Act, 1955

• Section 5 of the Hindu Marriage Act lays down essential conditions for a valid Hindu marriage.
• The first such condition postulates that neither party shall have a spouse living at the time of the marriage.
• Section 11 declares the marriage solemnized in contravention of Section 5(i) null and void.
• Thus, according to Hindu law, contracting a second marriage without obtaining a divorce makes the marriage void and unlawful.

Indian Penal Code: Sections 494 & 495(BNS section 82& 83)

• Section 494 IPC (BNS-82): Punishes bigamy, that is to say, marrying again during the lifetime of the former spouse.
  Punishment: Imprisonment for a term which may extend to seven years and shall also be liable to fine.
• Section 495 IPC(BNS-83): If he conceals the fact that a previous marriage subsisted, he can be punished for a term that may extend up to ten years.

Christian Marriage Act 1872

Section 60 It is necessary that neither party has a spouse living at the time.

Therefore, all second marriages without a divorce or annulment are held as invalid and attract punishment under IPC/BNS.

Other Applicable Laws

Muslim Personal Law: Allows a Muslim man to have a maximum of four wives but does not allow a woman to remarry unless she first dissolves her previous marriage.

Parsi Marriage and Divorce Act, 1936: Prohibits bigamy; a second marriage without divorce is illegal and void.

Special Marriage Act, 1954: Provides for inter-faith marriages and civil marriages; this law does not allow any second marriage unless divorce has been granted.

Also Read : Indian law for second marriage without divorce.

Section 494 IPC (BNS-82): Bigamy Explained

How Does Section 494 IPC Describe?

According to Section 494 of the Indian Penal Code, the crime of bigamy is marrying a second spouse while the first one is still alive.

Legal Definition: A marriage is void if a woman (or man) marries again during the subsistence of the first marriage and thus becomes a criminal act.

Punishment under Section 494 of IPC

• Imprisonment Maximum 7 Years,
• Imprisonment and fine as the court sees fit.

Gender-Neutral Applicability

Bigamy is gender-neutral; either male or female can face prosecution under it if they marry again while the first marriage is in existence.

Section 495 IPC: Aggravated Bigamy

• If the person conceals the prior marriage from the new spouse, this part applies.
• Punishment: Other than the fine, to which they are liable, 10 years imprisonment.

(Note - BNS Section 82 continues to punish bigamy similarly with imprisonment and fine, reasserting the illegality and punishment in the second marriage without divorce.)

Legal Implications Of Second Marriage Without Divorce

• Bigamy renders the second marriage void ab-initio (i.e. invalid from its inception).
• A person guilty of bigamy may be tried under the Indian Penal Code or under the provisions of the BNS.
• A second wife can file a case of cheating or fraud in case she was completely unaware of the first marriage.
• A complaint filed by the aggrieved will automatically lead the court to issue arrest warrants and initiate proceedings.

Note: Even if it involved different religious rites or was conducted outside India, Indian law would still apply if the first marriage was registered or governed by Indian personal law.

Rights Of The First Wife And The Second Woman

This paragraph outlines the legal rights of both the first wife and the other woman in cases of bigamy, including maintenance, divorce, and legal actions available to each

Rights of the First Wife

She may lodge:

• A criminal case for bigamy.
• Claim maintenance under Section 125 CrPC (144 BNSS) or any personal laws.
• File a petition for divorce on the ground of cruelty or adultery.
• Residence rights, alimony, and child custody as prescribed by law.

Rights of the Other Woman

If she is being kept unaware of the first marriage, she may:

• File a case of cheating under Section 417 IPC (318 BNS) or fraud.
• Claim maintenance if a prolonged relationship amounts to a de facto marriage (subject to the court's discretion).
• Courts, at times, have recognised the right to dignity and compensation for women misled into illegal marriages.

Tips For Legally Remarrying In India

To avoid legal consequences and validate your second marriage, do the following:

• Get a Legal Divorce Decree: Make sure that your first marriage was legally terminated by a court and not merely abandoned or separated.
• Check for Your Personal Law: Depending on your religion, such as Hindu, Muslim, Christian, Parsi, etc., different laws would apply.
• Registration of Divorce and New Marriage: Have an official record to prove your marital status.
• Avoid Solely Religious Rituals: Ensure that the second marriage has been registered.
• Consult a Family Lawyer: Involving a lawyer can save you many future disputes, especially where children, property, and alimony are concerned.

Case Law

The courts have given some important case laws by which remarriage is declared illegal and punishable without obtaining divorce. These judgements bring into focus the criminal consequences of bigamy under Indian law.

1. Sarla Mudgal v. Union Of India,1995

Summary: In this case, Sarla Mudgal v. Union of India,1995, Hindu men changed religions by converting to Islam only to contract a second marriage without dissolving the first. The Supreme Court has now held that conversion to Islam does not dissolve Hindu marriage, and a second marriage without divorce constitutes bigamy within the meaning of Section 494 IPC.

Held: A Hindu husband, married under Hindu laws, after having converted to Islam, cannot contract a second marriage without dissolving the first marriage; otherwise, he will be guilty of bigamy under Section 494 IPC.

2. Lily Thomas v. Union of India,2000

Summary: This was a consolation of a leader that arose from Sarla Mudgal, addressing the question of whether the second marriage is unlawful post-conversion. It reasserted the requirement of legally dissolving the first marriage and emphasised that conversion cannot be used to escape liability under the provisions of bigamy.

Held: In this case, Lily Thomas v. Union of India,2000 court held that Mere conversion to Islam will not dissolve a Hindu marriage solemnised under the Hindu Marriage Act. Without divorce, the second marriage is void and punishable as bigamy.

Conclusion

Legally, under Indian law, a woman has to get a formal divorce from her first husband before remarrying,, since rejoining will be treated as bigamy, a criminal offence under Sections 494 and 495 of the Indian Penal Code. This has now been replaced by Sections 82 and 83 of the Bharatiya Nyaya Sanhita. Regardless of religious customs or personal circumstances, the law treats marriage as a binding legal contract. Until it is dissolved by a court, entering into another marriage is considered void and punishable. Therefore, it is crucial for any woman planning to remarry to first ensure that her previous marriage has been legally terminated through a valid divorce decree. Serious legal consequences may arise from this, not only to the woman but also for the person she intends to marry. In case there is any doubt as to the legal process of divorce or marital status, getting in touch with a suitable family lawyer is strongly recommended to avoid complications and ensure full compliance with the law.

Frequently Asked Questions (FAQs)

Legal demarcations regarding remarriage must be understood to avoid criminal effects of Indian law. Below are the answers to common queries regarding remarriage and relationships without divorce.

Q1. Can a woman marry again without a divorce?

No, a woman cannot marry another man except after she has obtained a valid divorce from her husband. This is termed as bigamy and is a criminal offence under Section 494 IPC (now under BNS Section 82). That marriage would be treated as void, and she might be subjected to criminal prosecution.

Q2. Can remarriage happen without divorce?

Legally, it is not permitted under Indian law to remarry without a divorce being legalised. Under the Hindu Marriage Act, the Christian Marriage Act or the Special Marriage Act, a second marriage during the subsistence of the first is illegal and punishable.

Q3. Can a married woman live with another man without divorce in India?

Living with another man without getting divorced does not appear to fall under the definition of bigamy, since there is no second marriage; it can, however, bear some legal and social ramifications. The husband may allege adultery or cruelty as grounds for divorce. The live-in relationship itself is not a criminal offence as long as there is no second marriage, and the relationship is consensual.

Q4. What about marrying the same person again without the process of divorce?

No, you cannot legally marry the same person twice unless the first marriage has been annulled or dissolved, and both parties choose to remarry formally. A second ceremonial marriage without ending the first one has no separate legal standing, and this happens sometimes. However, it happens behind ceilings because couples do it for religious or personal reasons.

Disclaimer: The information provided here is for general informational purposes only and should not be construed as legal advice. For personalised legal guidance, please consult with a qualified family lawyer.