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Is it legal to have a second marriage without divorce?

By in Personal

This blog talks about the possibility and legality aspect of a second marriage without divorce from the first one.

Marriage is a beautiful phase in one’s life, but marrying the wrong person can bring one a lifetime of worries.

In some religions and cultures, people get married for the seven lifetimes they will be spending together. The concept of ‘divorce’ is taboo in man households to date. 

In this article, we’re going to shed light on if one can proceed to their ‘second’ marriage without divorce and talk about the legalities of that subject. Can one remarry without applying for a divorce from their spouse? Can a woman do second marriage without divorce? 

Let’s go back to the time when a King was allowed to marry multiple times and given the liberty of having more than one wife. During those days, when Kings conquer Kingdoms, they wed the then King’s daughter or marry into a family. 

India is synonymous with the phrase, ‘Unity in Diversity’. An amalgamation of cultures and versatility is what makes us so unique. Many cultures have their laws and requisites for ground(s) to file for divorce. In terms of marrying more than once without a divorce, some religions lay down the law, and in others, it is flexible. 

How to prove second marriage without divorce? 

Second marriage without divorce in India is not legal and is a punishable offense. 

1. Under Section 5 of the Hindu Marriage Act, the conditions required are listed and make the marriage legal. Under Section 11 of the Hindu Marriage Act, the conditions in the context of the second marriage are stated. The conditions further state that a second marriage without the dissolution of the first one will be considered null and void. 

What about Second marriage without divorce in Islam and Second marriage without divorce in Christianity? 

2. Under the Christian Marriage Act, bigamy is not mentioned but a person who is marrying for the second time without a divorce will be punished under Section 419 of the Indian Penal Code. 

3. For Muslims, bigamy is not mentioned. However, in the Quran, it is said that a male can marry four times in his life and can have four wives, but in one condition that the husband showers his wives with love, respect, and treats them equally. If this condition is not implemented, then he can have one wife. The same law is not the same for women. Women can marry only once.

No, it is illegal. Under Section 494 of the Indian Penal Code, if a person marries a second time, without a divorce, while their spouse is alive, the marriage is considered bigamy, which is a punishable offense. They can file a complaint under Section 415 that provides conditions on ‘cheating’. 

Under Section 114 of the Evidence Act, facts regarding human actions are present. 

Under Section 5 of the Parsi Marriage and Divorce Act, bigamy is declared null and void and will be considered a punishable offense under section 494. 

Under Section 44 of the Special Marriage Act, bigamy is considered a punishable offense under sections 494 and 495 of the Indian Penal Code. 

The laws are laid down, but if a crime is committed, the punishment must be mentioned. 

The punishment under different laws and sections for Bigamy is mentioned below: 

1. Under Section 17 of the Hindu Marriage Act, the punishment is stated that if a person commits the crime, they will be dealt with under sections 494 and 495 of the Indian Penal code. It is considered to be a criminal offense.

2. Under Section 494 of the Indian Penal Code, it is stated that if a person commits the crime they shall be punished with imprisonment for up to 7 years or a fine or both, depending on the severity of the crime. Section 495 states that if a person is stealthy about their second marriage, and not communicated about their first marriage, they shall be imprisoned for up to 10 years or pay a fine or both.

If your questions are: 

1. How to prove second marriage without divorce?

OR

2. Can a second marriage be valid?

1. You cannot prove your second marriage without a divorce. Your second marriage is not counted and is a punishable offense. 

2. Your second marriage can be considered legal and valid, under certain exceptions, such as: 

  • If the first marriage is declared null and void by the court 
  • If the spouse has been missing or not found for more than 7 years. The partner in the second marriage must be aware of that particular instance. 
  • If there is no proof that shows the above exceptions are not fulfilled during the second marriage. 

A second marriage has no standing if the first marriage is present, in this case, the second wife has no legal rights. If a man marries a woman during the existence of his first marriage without disclosing it, the second wife can file a suit under ‘cheating’. 

Under Section 11 and 16 of the Hindu Marriage Act, the status of the children that are born out of the second marriage, is considered legitimate and has a stake and right over their parents’ properties.

In the case of inter-religious marriages, and conversion for second marriages – the Hindu Law prohibits bigamy, the Muslim Law does not prohibit it. As long as no law has been overlooked and it is specifically mentioned that conversion for second marriage is necessary, it is all well and good. 

Now, under the Parsi Marriage and Divorce Act, there is a clause that states even if the person converts to Parsi, bigamy is a punishable offense, therefore, Parsi law conversion is prohibited for second marriage without divorce. 

Also Read

What is Dispose? What does it mean in a divorce case? 

When a divorce case is disposed, it results that the judgment by the Judge has been passed and the case is no longer active. If the case is continuing and the judgment is not passed, the case is considered active. 

Court cases have statuses and records to maintain. Here, in simple terms, the opposite of an active case is disposed.

To declare the second marriage null and void, the second spouse who has been ‘tricked’ or made to marry without having the complete knowledge and facts placed before them, can file for divorce and naturally file for a divorce on the ground of bigamy. The first spouse cannot file for divorce and declare their marriage as void. 

How to file for divorce? 

If a person has committed bigamy then their spouse can file for divorce, following the procedure below: 

1. Consult a divorce lawyer

2. They tend to listen to the complete case facts presented, then draft a legal notice while states you wish to file for a divorce on the ground of bigamy. It will be signed by the party and lawyer so that the document is lawfully binding. 

3. Petitions will be filed and the parties will receive a court date for family court. 

4. The parties must attend the hearing. 

5. The judge, after listening to the facts and issue at hand, will pass the judgment and decree with regards to the case. 

Conclusion

In conclusion, a second marriage without divorce is illegal in India, unless the custom or religion considers the marriage to be valid. In India, marriages are conducted with respect to personal law and it does not allow the second marriage to be valid and legal, even if the first marriage is in terms of dissolution. Parsi and Hindu Law says that the second marriage is null and void (if the first marriage is still in place). Islam Law says that a man can marry four times. A woman can marry after the dissolution of the first marriage. When a judgment has been passed, the case becomes disposed. 

There is a level of social stigma that is attached to being a ‘second wife’. There is enormous pain of being cheated into the marriage and undoubtedly extremely depressing for anyone. There is no recognition, per se, for the second wife, due to judicial interpretation. Under criminal law, it is extremely difficult to prove bigamy, as the marriage must be performed in a legal and valid manner (not on a whim!) to prove the offense of bigamy. There are loopholes that exist, and these are usually exploited to defend themselves.