Legal aspects of second marriage

March 7, 2024

This article is written by Ms. Akriti Gauri 2nd year law student Lloyd Law College, Greater Noida.

ABSTRACT:-

In India, marriage is a highly esteemed and sacred tradition that forms a strong social and cultural link between two people and their families. It is a social institution with piousness in it. In India, where marriage is regulated by a number of legislative regulations and religious customs, it is frequently viewed as an unbreakable relationship that reflects ingrained cultural values and social conventions. Distinct groups in India have distinct laws on marriage and divorce because the country is diverse and allow people to practice and follow different religions. As a result, a second marriage without a divorce becomes a complicated legal matter entwined with societal norms, religious convictions, and personal freedoms. And there are some meticulous rulings of the Supreme Court that has sparked the changing of the legal environment, societal changes and legal interpretations.

This article is going to take a look at what are the legal status, complexities, aspects, rights arise in a second marriage. A number of ethical and legal concerns are brought up by the prospect of a second marriage without a divorce. Does the law allow for it? What effects does bigamy have on the law? What views do various religious laws have on this practice? What privileges and safeguards are afforded to individuals engaged in a subsequent marriage? And also explore the laws that are governing the bigamy and punishing it.

Keywords:- Bigamy, Ethical and Legal Concerns, Social Institution, Societal Norms.

INTRODUCTION:

To begin with, bigamy or (hereinafter; second marriage) means tying a knot with the second spouse while he first marriage is still going and thus not dissolved yet. Earlier, kings used to have many wives but by the time this practice get prohibited. Marriage is no doubt a social institution having pious and sacred relation but having Second Marriage in between the subsistence of the first marriage is not permissible and does not hold any legality in the eyes of law. In Indian society, the practice of “second marriages” is common even though it is expressly forbidden by law. There is little legal protection available to second wives in India due to the discrepancy between societal norms and legal requirements. The rules under several laws, including the Hindu Marriage Act, Indian Penal Code, Parsi Marriage and Divorce Act, Christian Marriage Act, Special Marriage Act, and Muslim Law, that govern second marriages without divorce where penalties, exclusions, legal rights, current legal trends, and helpful advice associated with this intricate legal matter.

In addition to, there are lack of legal acknowledgment and therefore the situation of the second spouse had to face social stigma. Second wives are not officially recognized, but according to court interpretations of the rules in place, they do have some chance of receiving maintenance. But in the absence of explicit legislative requirements, judicial discretion plays a major role in determining their capacity to assert their rights.

Furthermore, second marriage is punishable offence under section 495 of the Indian Penal Code with imprisonment which may extend upto 7 years or with fine and the concept of bigamy has been discussed in section 494. And thre are some factors that has been given for Bigamy:- (a) that the first marriage is still in continuation.

(b) if any of the spouse did marriage while the spouse of the first marriage existing.

IPC also recognizes bigamy as cheating too as in whoever marries someone while hiding the fact of their prior marriage will face a maximum 10 year prison sentence as well as fine.

The Hindu Marriage Act, 1955 also governs bigamy and provides that it should be originally stipulated that in order for a marriage to be deemed lawful, neither of the parties involved had to be married to another person while their first spouse was still alive. This was because prior to the introduction of the Hindu Marriage Act of 1955, men were allowed to remarry while their first wife was still alive, provided that customs for women allowed it. Nevertheless, subsequent marriages could be deemed null and void from the outset if customs and rites were followed, ensuring that the first spouse was lawfully married and the second marriage was still in effect on the date of the marriage. And if their husband’s previous marriage was still going on at the time of the second marriage, second wives may file for divorce under Section 13 of the Hindu Marriage Act of 1955. The Act gives second wives some remedy with regard to interim and permanent alimony in sections 24 and 25, respectively. In case of Mani Bai v. Jaayntilal Dahyabhai the High Court of Madras ruled that the second wife can claim for the maintenance under section 18 of Hindu Adoption and Maintenance Act. In Rajesh Bai v. shantabai, the court ruled that if the second marriage declares void due to the continuation of the first marriage then she can claim of maintenance. But there are some instances where the second marriage becomes valid and lawful and they are:

if a court with appropriate jurisdiction ruled that the prior marriage was null and invalid
Should someone get married while their first marriage is still going strong since their spouse is :- absent without leave for the past seven years or not known to be living by someone like that.
When either one or both of the couples left Hinduism to practice another faith.

There is case named Sarla Mudgal v. UOI, the court ruled that a person cannot violate the law and commit bigamy just because they have changed their religion.

In the event that one of the partners is mentally ill or experiences ongoing mental health issues.
The Supreme Court has made it clear that a second marriage is lawful even when the first marriage’s divorce proceedings are still ongoing, as long as the first marriage’s participants have agreed to an amicable split and have chosen not to appeal the ruling.

And therefore, Hindu law recognizes lawful second marriages and recognizes the validity of the children born into such unions if certain requirements are met.

A Muslim man may marry up to four times under the Muslim Women (Protection of Rights on Divorce) Act, 1986, provided he can treat and respect each of his wives equally. Should he neglect to do so, he may face consequences. A Muslim spouse is guilty of bigamy if he gets married to a Muslim woman first and then to someone else under the Special Marriage Act of 1954 (SMA). Similarly, under Section 494 IPC, a Muslim may face prosecution if he marries a fifth wife. But in Khursheed Ahmad Khan versus State of UP (2018), the Supreme Court ruled that “it could not be said that having more than one wife is a part of religion, even though the personal law of Muslims permitted having as many as four wives.” It is not a question of conscience freedom nor is it mandated by religion.”

The Indian Christian Marriage Act, 1872 also not promote the concept of second marriage to the Indian Christians when their prior spouses are alive. Section 193 of the IPC penalizes anyone who makes a false oath or declaration in order to obtain a marriage or its certificate. More than one marriage is forbidden by this clause. Christian matrimony is fundamentally monogamous. If one of the parties has a live spouse, the second marriage is null and void even if it is solemnized by the church.

And, according to the Special Marriage Act of 1954, special marriages will be formally dissolved when “neither party has a spouse living”. In the case of conversions as well, it is made clear that if the spouse’s former partner continues to practice the religion in which the marriage was consummated, then the spouse’s second marriage (by conversion) will not be regarded as lawful. Under Section 15 of the SMA (Special Marriage Act), a second marriage cannot be registered while the first spouse is still alive.

SECTION 125 CrPC:- it provides to claim the maintenance from the spouse. We must rely on whether the husband has treated the woman as his wife in society in order to demonstrate the reality of the marriage between the husband and wife. Therefore, evidence of her status as her spouse may be found in the Voter’s Identity Card, where she has been referred to as his wife, the joint bank account, or even the police complaint, wherein he has declared that she is his wife. The Madras High Court ruled in Mallika and Anr v. P Kulandi that it is adequate if there is proof that the parties cohabitated for a significant amount of time. According to the court’s ruling in this instance, the petitioner’s continuous and significant living arrangement with the respondent—which was necessary to make room for the kid’s birth—means that she is eligible for maintenance for both herself and the child.

CONCLUSION:

Since bigamy used to be followed by our ancestors like king but now it has become illegal. And India being a large, vast, diverse country where offences are being aroused by our social institution, i.e., marriage. It is quite difficult to prove bigamy, even under criminal law, because the marriage must be lawfully performed in order for the offense to be proven. Women have consistently been oppressed and dominated by men throughout history. In family conflicts, this subordination is clearly visible. Now, it is the high time to resolve, improvised the legal aspects of more out of second marriages. The inconsistency between Indian legal rules and social norms concerning second marriages highlights the necessity of comprehensive legal frameworks to protect the rights of women in these kinds of relationships. Clear-cut legislation would give second wives the protection and legal redress they need, easing some of the difficulties they experience. In addition to being a financial strain on the husband’s present income, maintenance would guarantee that bigamy is illegal in both theory and practice. When someone commits bigamy, the worst kind occurs when they take advantage of the traditions and rituals of other religions. Religion is not a commodity, and it cannot be used in this way or be viewed as such.

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