Indian law for second marriage without divorce.

Law
22-Nov-2022
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Marriage is a significant life decision; some believe that if you marry the right person, your life will be wonderful, while others say if you marry the wrong person, your life will be a living nightmare. The cultural values state that marriage between two people lasts for seven lives, and it is unethical to get married twice. 

In Indian culture, divorce was frowned upon. Even if a married couple isn't content with their marriage or finds it difficult to coexist, society opposes divorce, so they must continue to live together. 

What "dispose of" in a divorce lawsuit entails will be covered in this blog post. How can a second marriage be conducted amicably? What must a wife do to be married again without divorcing her first husband? How often are second marriages without divorce, and may women be remarried without getting a divorce?

India is renowned for its diverse culture and ability to change its language and culture nearly every five to six kilometers. Since there are so many different religions in India, many personal laws have their laws, and some of them also have laws addressing marriage. While multiple marriages are permitted in various religions, the governments only permit single marriages.

Indian Laws Regarding Second Marriage Without Divorce

Under Section 494 of the Indian Penal Code, entering into a second marriage without obtaining a legal divorce from the first spouse is generally considered a crime and is punishable. The punishment for bigamy, as outlined in Section 494 of the Indian Penal Code, includes imprisonment, which may extend to seven years, along with a fine.

Let's understand the laws, including provisions related to second marriage.

The Hindu Marriage Act: 

As per Hindu Marriage Act 1957, anyone cannot marry a second time without divorce. The conditions necessary to recognize marriage as valid are discussed in Section 5 of the Hindu Marriage Act. For the second marriage to not be ruled invalid under Section 11 of The Hindu Marriage Act, the husband or wife of the parties must not have been living at the time of the marriage or the first marriage must have been dissolved at the time of the second marriage.

Indian Penal Code

Bigamy, a criminal offense, is committed if a person marries while his or her spouse or wife is still alive, according to Section 494 of the Indian Penal Code. In accordance with Section 415 of the Indian Penal Code, the husband or wife may also disclose suspicions of infidelity.

Evidence Act

The presumption clause is specified concerning the facts regarding human actions under section 114 of the Evidence Act.

There are further personal laws that contain measures addressing second marriages and their legal status.

Parsi Marriage and Divorce Act

Bigamy is prohibited under Section 5 of the Parsi Marriage and Divorce Act and is subject to punishment under Section 494 of the IPC or dissolution.

The Christian Marriage Act:

Bigamy is not specifically mentioned in this Act, but the registration form for marriage is only available to bachelors or widows/widowers. In order to apply for a marriage license, it is stated that the person getting married must have their spouse present at the time of the wedding or face punishment under IPC Section 419.

Special Marriage Act:

Bigamy is a criminal offense under sections 494 and 495 of the Indian Penal Code, according to Section 44 of the Special Marriage Act.

Muslim Law:

According to Muslim law, bigamy is not directly mentioned, but the Quran mentions that a man may marry four times in his life or have four wives, but only under the condition that he will treat each wife with respect, love, and equality; otherwise, he may only have one wife.

Bigamy Penalties Under Different Laws:

Hindu Marriage Act: 

Bigamy is punishable under Section 17 of the Hindu Marriage Act, which specifies that it would be treated as a criminal offense and subject to provisions of Sections 494 and 495 of the Indian Penal Code.

Indian Penal Code: 

According to Section 494 of the Indian Penal Code, bigamy is punishable by up to seven years in prison, a fine, or both. According to Section 495 of the Indian Penal Code, anyone found guilty of bigamy for concealing their first marriage faces a sentence of up to 10 years in prison, a fine, or both.

When is a second marriage regarded as legal?

Even though second marriage is not permitted in India, there are some situations where it might be:

  • If the court with authority declares the person's first marriage invalid.
  • If the individual getting married a second time has a missing spouse who has been missing for seven years, and no one has heard from them, the other party needs to be made aware of this.
  • If there is no evidence to suggest that the second marriage violates any of these qualifications or exceptions.

Legal Rights for Second Wife:

Since a second marriage is deemed invalid throughout the course of a first marriage, the second wife has no legal rights, although she is still entitled to certain remedies. If a man marries a woman while his first marriage is still going on without telling her about the prior marriage, the second wife may accuse him of infidelity.

Status of Children Born from Second Marriages:

According to Sections 11 and 16 of The Hindu Marriage, children born from void marriages will be treated as legitimate since if their parent's marriage had been legal, so would the kid they would have had as a result. The child has a lawful and legitimate right to all of his or her father's or mother's property, except for the ancestral joint family property, because the child is legitimate.

Conversion for Second Marriage:

Whenever something is prohibited by law or legal requirements, there are always loopholes. In this case, a loophole exists because, while bigamy is illegal under Hindu law, second marriages without divorce are legal under Islamic law, attracting those who wish to remarry without leaving their first partner. However, the law ensures that no law enacted by them is misapplied or ignored, hence it is clearly stated that conversion for a second marriage is prohibited under a case;

In Sarla Mudgal v. Union of India & Ors, it was determined that one personal law could not be used to annul a marriage that was conducted in accordance with another personal law. A person will be punished under section 494 of the Indian Penal Code if they convert themselves in order to get married a second time. In this case, the marriage will be deemed null and void.

The Parsi Marriage and Divorce Act contains a clause that stipulates that, even if the individual converts himself, they would still be subject to Parsi law. Since bigamy is illegal under Parsi law, conversion is not an option for second marriages without divorce.

In a divorce case, what does "dispose of" mean?

Court cases have a status that informs the relevant parties and legal authorities about their case. For instance, the case will be considered "active" if it is still pending and the judge has not yet rendered a decision or issued a decree, and it will be considered "disposed of" if these actions have been completed. Divorce cases are also classified as "disposed of" when the judge issues the decree or judgment. In other words, the divorce case with the status of disposed of is in the process of being finished and the matter is now closed.

Who is eligible to submit a complaint to nullify a second marriage? How might the second marriage be nullified?

If a man marries again while his prior marriage is still in effect, the second wife may file a petition to have their marriage declared null and void. A marriage may also be declared void by the person who married the person to whom it was already legally consummated. The first wife can file for divorce on the grounds of bigamy, but she cannot file a case to declare the marriage null and void.

How to file a divorce case?

The other spouse may file for divorce on this basis if the other has committed bigamy by following the instructions below:

  • Contact a divorce lawyer who specializes in divorce cases
  • After carefully considering all relevant information, he or she will create a legal notice that specifies your desire to file for divorce on the basis of bigamy and requires the signatures of both the parties and the attorney.
  • In the family court, petitions will be filed based on the relevant facts, and the court will set the hearing date.
  • On the date of the hearing that has been specified, the parties must appear.
  • The judge will issue the decree after hearing the supplied information and supporting evidence.

Conclusion

Second marriage without a divorce is unlawful in India unless it is specifically permitted by personal law or custom. The majority of marriages in India are conducted complying with personal law, and either there is a specific provision that declares a second marriage invalid while the first marriage is still in force, or there is another provision, such as one found in Christian law, that indirectly declares the second marriage invalid. 

While it is apparent from Parsi and Hindu law that a second marriage is invalid, four marriages are only permitted under Muslim law if the husband can treat each wife equally and with respect. A woman can only get married again when her previous marriage dissolved; it cannot happen before. And the case will become "disposed of" once the divorce is finalized and the decree has been approved.


Author Bio: SK DUTTA ((BSc, MA(Eco), LLM, AICWA, ACS, ACIMA(UK), MBA, ACTM, CAIIB, PGDMM) CFO, Chief Legal Counsel & Company Secretary.)

Mr Dutta is a highly skilled Banking & Finance, Legal, and Company Secretarial Professional with 32 years of experience. He is a part of the senior management team for strategic business decisions, including Legal financial and regulatory reporting, budgeting, forecasting, and balance sheet management. He is the first contact person for managing relationships with regulators, investors, and Lenders to deliver on the Company’s strategic intent. He also provides tax advice along with coordination with Group Tax and local tax advisors to support the effective management of local tax liabilities.

Link: https://restthecase.com/lawyer/details/65299