Marrying Again During The Lifetime Of Husband Or Wife

Bigamy i.e. second marriage during the lifetime of a first spouse is illegal in India. Second marriage and the relationship arising out of it do not have any validity. Section 5 of the Hindu Marriage Act, 1955, clearly states that a marriage could be valid only if neither of the party has a living spouse at the time of marriage. Section 11 of the Act declares second marriage to be null and void.

A person commits bigamy when he/she:

• has a husband or wife living,
• marries in any case in which such marriage is void,
• by reason of its taking place during the life of such husband or wife.

Thus, bigamy is an offence only if the first husband or wife is alive. Even if second marriage is performed with the consent of first spouse, it is an offence. In case of a divorce dissolving a valid marriage, the parties obtaining such dissolution can remarry.

The law of bigamy is not applicable to Mohammedan males, who are allowed to keep more than one wife. The law applies to Mohammedan females, Hindus, Christians, and Parsis of either sex. Good faith and mistake of law are no defenses to a charge of bigamy.

However, bigamy shall not apply if:

• the first husband or wife is dead, or
• the first marriage has been declared void by the Court of competent jurisdiction, or
• the first marriage has been dissolved by divorce, or
• the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.

In certain cases, a person who is Hindu has converted to Islam, in order to have a second marriage. However, marriages through religious conversion to get around the provisions of the anti-bigamy law, has been declared illegal by the Supreme Court in a 1995 order.

Case: In Sarla Mudgal v. Union of India (1995 air 1531 SC), the Supreme Court held that a man who has adopted Islam and renounced Hindu religion, marries again without taking divorce from the first wife, then such marriage is not legal. The person shall be punished for committing bigamy under section 494 of Indian Penal Code (IPC).

Even though the law is very clear on second marriage, yet it is a common practice in India. Given the case, the laws are very dicey for the second wife and she is not much protected by law. The second wife is not entitled to any share in husband’s property. The children of the second wife, however, are entitled to get a share in their father’s self-acquired property. The second wife can claim interim maintenance from her husband.

Case: In Rajesh Bai v. Shanta Bai, it was held that a woman whose marriage has been declared void because of the existence of first wife is entitled to get maintenance under section 25 of the Act. Also, interim maintenance under section 20 is allowed.

Complaint under the Act

The person aggrieved can file a case of bigamy either in court or at the police station. The father of an aggrieved wife can also make a complaint under section 494/495 of the Indian Penal Code. A petition for declaring the second marriage as void can be filed by the parties of second marriage and not the first spouse.

Complaint for cheating can be filed under section 415 of IPC in case the person hides the fact of first marriage.

Punishment under the Act

Bigamy is a non-cognizable offence. It is bailable and compoundable with the permission of court if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, which may extend till 7 years or fine or both. In case the person charged of bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be punished with imprisonment of up to 10 years or fine or both. Such offence under section 495 is not compoundable.