If My Husband Refuses to Stay Married and Marries Another Woman Can the First Wife Get Married Again

Second spousal relationship, during the subsistence of the first wedlock, is illegal in India and the relationship arising from the same does non have any validity. Even though the law is very clear on this bespeak, 'second union' is a common practice in Indian guild. As a result of the aforementioned contrast between the law and social practice, second wives in India take footling protection nether the law.

With the commencement of Hindu Marriage Human activity, 1955 (HMA), one of the condition provided for a valid for a valid matrimony was that neither party should have a spouse living at the fourth dimension of the wedlock. Under the former police, at that place was a bar against a woman marrying a second husband while her get-go married man is alive unless custom permitted her. At that place was no such bar against men, till some States passed laws for prevention of bigamous marriages, and introduce the principle of monogamy amid Hindus. After 1955, with the aid of the aforementioned provision and Department 11, Hindu Union Human activity, 2d marriages came be declared null and void ab initio. In this behalf, under the Hindu Marriage Act it is necessary is a marriage according to the customs and rites, and secondly, that the spouse of the first marriage was a legally wedded spouse and the second marriage was subsisting on the date of the second marriage.

The social stigma fastened with being a 2d wife, the absence of any legal condition to the relationship, and the enormous hurting of being cheated into the marriage are undoubtedly extremely depressing for a woman. Even though there is no recognition given to a 2nd wife, due to the judicial estimation of existing law every bit discussed to a higher place, she may have some chances of getting maintenance. In the absence of whatever clear provisions under the constabulary, her chances of challenge her rights are largely dependent on the discretion of the judges.

Fifty-fifty under the criminal law, information technology is extremely to prove bigamy, every bit the union has to be validly performed to testify the offence of bigamy. Usually these loop holes in the police force are exploited past men to defend themselves in such cases.

Historical Prospective
Though monogamy is the dominion from Vedic times, polygamy has, as an exception, existed side by side. But, the married woman who was wedded start was lone the wife in the fullest sense. One text of Manu seems to betoken that at that place was a time when a second marriage was allowed to a human after the death of his former wife. Another set of text justifies a married man taking some other wife. It was merely when a married woman was barren, diseased or vicious that she could be superseded and a 2d wedlock was valid; as also when she consented.

Every bit a norm, the first wife had precedence over the others and her first-born son over his one-half brothers. It is likely that originally, the subsequent wives were considered as merely a superior form of concubines. Later, in the courts of British India. it was a settled police force that a Hindu male could without any brake marry again while his previous union subsisted (second marriage) without his wife'southward consent and justification.

Custom, still, did prevent the second marriage without the consent of the first wife and without making provision for her. It was yet held in Raghveer Kumar 5 Shanmukha Vadivar, that a custom prevalent amongst Nadars in Udumalapeta Taluk preventing a second marriage, even if established could not have the strength of law.

Proof of 2nd Wedlock

The supreme court has laid downwards that proof of solemnization of second spousal relationship in accord with the essential religious rites applicable to parties is absolutely essential and a must for conviction for bigamy and that mere admission on the office of the accused that he had contacted second marriage was not enough and that such admission is non evidence for the purpose of proving matrimony in an adultery or bigamy case. in customary marriage, where custom is non pleaded, living together equally husband and wife would non enough. Just where in the case it was proved that dola was brought, bhanwar ( saptapadi ) and kanyadan had taken place, the full vivah was read out and the marriage was performed by a purohit, the marriage must be held to have been duly solemnized.

In a Hindu marriage, where a Hindu matrimony is performed co-ordinate to religious rites, performance of homa and saptapadi are essential and where they are not proved to have been parformed it cannot exist called a solemnised marriage nether the section. To prosecution person under Section 494 I.P.C., there is zippo in the act forbidding a prosecution for offence punishable under Section 494 of penal code non preceded by declaration obtained nether provisions of the deed that second matrimony is void. 2d marriage must be legally valid spousal relationship so as to come inside mischief of Section 494. The word ' solemnize ' ways in connection with a marriage, ' to celebrate the marriage with proper ceremonies and in due form', according to shorter oxford lexicon. It follows, therefore, that unless the marriage is ' celebrated or performed with proper ceremonies and due grade ', information technology cannot be said to be solemnized '. it is therefore, essential, for the purpose of Department 17 of the act, that the marriage to which sec 494, I.P.C applies on account of the provisions of the act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to exist married, volition non make the ceremonies prescribed by police force or approved past any established custom.

Husband or Married woman Must be Alive

The section will not utilize if the husband or married woman of the first marriage is expressionless or if the first marriage she has been dissolved by a prescript of divorce. The limit of one year imposed by Section xv will non apply to marriage under the section, as Section xv is confined only to the parties to that marriage. The nowadays section volition not also utilize if the quondam marriage is void or declared void by a decree of nullity. The department declare the subsequent marriage void. It volition not, therefore, affect the validity of the erstwhile marriage. Detect a that sec 494 of the Indian Penal Code exempts from punishment a second marriage bona fide contracted afterwards vii years absenteeism of the husband or the wife, who has not been heard of by those probable to hear from him or her, during the period. Offences nether sec 494 and 495 of the Indian Penal Code are non-cognizable.

Who Can Complain
Merely the person aggrieved can complain in case of bigamy. if it is the wife who is aggrieved, and so her begetter can complain as he is the lineal ascendant of the wife.

Grant of Injunction

A petition restraining the hubby/wife from marrying 2nd time in not maintainable. But a adjust for perpetual injunction by the wife restarting her Hindu husband from contracting 2d spousal relationship would prevarication jurisdiction of civil court to entertain such accommodate is not excluded by Hindu matrimony deed. A petition for declaration that the second marriage is void can exist filed by simply parties to the matrimony and non by first wife.

Hindu Marriage Act, 1955

With the showtime of Hindu Marriage Deed, 1955 (HMA), one of the condition provided for a valid for a valid matrimony was that neither party should have a spouse living at the time of the marriage. Under the old constabulary, at that place was a bar confronting a woman marrying a second husband while her first married man is alive unless custom permitted her. At that place was no such bar against men, till some States passed laws for prevention of bigamous marriages, and innovate the principle of monogamy amongst Hindus. After 1955, with the assistance of the aforementioned provision and Section 11, Hindu Wedlock Act, second marriages came be declared zip and void ab initio. In this behalf, under the Hindu Matrimony Deed it is necessary is a wedlock according to the customs and rites, and secondly, that the spouse of the first marriage was a legally wedded spouse and the 2nd marriage was subsisting on the date of the 2nd marriage. In case of a spouse unheard of for more than 7 years, a presumption tin be drawn under Section 108 of the Indian Evidence Human action, 1872 (Evidence Act) that the spouse is dead. In such an consequence, the other spouse can marry a second time on the footing that the former marriage is dissolve due to the civil death of his/her spouse. This was held in Lalchand Narwali five. Mahant Ram Rupgir. Too it is of import to note that as a 2d union is void fifty-fifty if it is not declared every bit void, a third party interested in the union (the first married woman) can as well go the second the 2d marriage declared every bit null and void.

Ishwar Singh v. Smt Hukum Kaur - AIR 1965 All. 465
Facts:
The opposite political party Smt. Hukum Kaur filed an application nether section 488 CrPC against the applicant on the allegation that the applicant was her husband, that he was neglecting her and that she was entitled to get her monthly assart from him for maintenance. The applicant denied to have married the opposite party. Party led evidence and the learned magistrate held that the union of the applicant with the opposite party has been established, that the applicant with the opposite political party and, therefore, he is liable to pay her a maintenance at the rate of Rs. 15 per month. On revision the learned session judge has referred the example with a recommendation at the order passed by the magistrate be prepare aside, because, absolutely the opposite parties previous husband Brahma Pal was alive and therefore there could be no legal wedlock between the opposite party and the applicant entitling the opposite party to receive any maintenance.

Held:
In this example it was likewise observed, "and then long as such a divorce has not be obtained, the previous marriage subsists and, therefore, the 2d marriage cannot be contracted by the Hindu and so long his spouse is living". Section 5 of the HMA provides that the marriage may exist solemnized between any two Hindu's , if neither party has the spouse living at the time of the spousal relationship. In the instant case the previous husband of the opposite party is even so alive and therefore a second marriage with the applicant even it is held to accept taken result was wholly illegal and can not given any right to get a maintenance from the applicant.

Trailokya Mohan v State of Assam - AIR 1968, Assam 22
Facts:
Petitioner having already a wife living name Subarna Bala Nath , married a second time ane Sefali Debi and thus committed the offence of bigamy punishable under the IPC read with the provisions of the HMA 1955.

Held:
In this case the courtroom further observed, nether the provision of sec five (1) HMA , ane of the condition of a valid Hindu spousal relationship is that it should be solemnized betwixt ii Hindus , neither party having a spouse living at that time. Where the accused himself in his statement nether sec 342 CrPC had admitted that he did marry A during the life time of Bill of Lading , whom he married kickoff. And that admission was corroborated by oral evidence of witnesses who in their cantankerous-examination did not take a stand that the second union was invalid, there is a presumption of a valid marriage and when a strong satisfactory and conclusive bear witness to rebut the presumption was totally lacking in the case, information technology must be held at a valid second marriage was solemnized and that was the footing of the admission fabricated by the defendant and information technology could exist relied upon.

Criminal Police force

Under criminal police force, the first wife aggrieved by a second union can file a complaint for bigamy. Under section 494, IPC, "whoever, having a hubby or wife living, contracts a spousal relationship during the life of the onetime husband or married woman, is void…" and therefore the aforementioned is also an offence punishable with imprisonment upward to seven years or fine or both. This section does not extend to any person whose spousal relationship with such husband or married woman has been alleged void past the court of competent jurisdiction. Under department 495, IPC, bigamy committed past concealing the fact of the kickoff marriage is punishable with ten years imprisonment or fine or both. A complaint tin also be filed for adulterous under section 415, IPC. Cheating is defined under section 415, IPC, as fraudulently or dishonesty inducing the person and so deceived to practice or omit to exercise anything, which he would not do or omit if he were not so deceived. Such an act or omission should be proved to cause or likely to cause impairment or harm to that person in trunk, listen, reputation or holding. Therefore, if the fact of the subsistence of the start marriage is kept a secret, apart from a complaint under bigamy provision, a complaint can too be filed for those offences of adulterous. Often it is difficult to prove the fact of the second marriage. A man faced with the criminal complaint for bigamy would frequently argued that his relationship with the 2nd woman was non one of wedlock equally the necessary every bit the necessary formalities of a valid marriage as required by law were not performed.

Naurang Singh v. Sapla Devi - AIR 1968 All. 1958.
Facts:
Smt. Sapla Devi made an awarding under Department 488, CrPC, for grant of maintenance on the ground that she was married to Naurang Singh, petitioner most two years agone and thereafter one year of the marriage the relation between them became strained and Naurang singh besides married a second wife, namely Kalpa Devi, that virtually eight months agone he, dispossessed of her ornaments and cloths and turned her out of the house, and there after she started living with her father. It was said that during this menstruation, Naurang Singh completely neglected to maintenance at Rs. 30 per mensem from her husband.
Issue:
Under Section 488, CrPC is she entitled to maintenance even if she has lived with a man as his wife for 12 years and borne him a child.
Held:
R. CHANDRA, J.:
The learned magistrate found that Smt. Sapla Devi was the wedded wife of Naurang Singh, so he granted her maintenance at the rate of Rs. twoscore per mensem. Under Department 488, CrPC is she entitled to maintenance even if she has lived with a homo as his wife for 12 years and borne him a kid. But legally married adult female are entitled to maintenance under department 488, CrPC. It was observed, "Under section 5 and 11 of HMA, 1955, a 2d marriage with a previous married wife living is null and void".

Banshidhar v Chhabi Chatterjee - AIR 1967 Patna 277
Facts:
CrPC (1898) sec 488 - Hindu adult female claiming to have been married in 1962 to petitioner - Petition allegation that she was not his married woman and that he was already married in 1952 - on evidence.
Held:
Woman to exist legally married to petitioner - maintainability of merits nether sec 488 - if petitioner on the date of wedlock with the claimant woman had already a legally wedded wife, his marriage with the claimant - woman volition be void nether sec eleven of the HMA. A claim nether sec 488 by a woman can be fabricated simply if she is the legally wedded wife of the person from whom she merits maintenance - such claim has zero to practice with the personal law on maintenance has been inverse by the Hindu adoption and maintenance human activity 1956, which does not contain any provision entitling a woman to claim maintenance from a person with whom she entered into a void marriage - as such, the claimant woman will not be entitled to maintenance under sec 488.

Axiomatic Deed

Under Section 114 of the Evident Act the Court shall presume the existence of probable facts, having regard to human conduct and the common form of the events and mutual sense existence used as the judicial tool. In sumitra Devi v. Bhinkan Chaudhary, it was held that the fact that the couples were living every bit hubby and married woman for decades was relevant in proving factum of their union. Once more in Rangnath Parmeshwar v. Pandirao Mali, information technology was held that if H and W were living as Husband and Wife, and then even in the absenteeism of proof to that effect, a rebuttal presumption would arise that the marriage betwixt them was valid.

Sumitra Devi v. Bhikan Choudhary - (1885) 1 SCC 637.
Facts:
Sumitra Devi filed an application for maintenance under Section 125 of the Lawmaking of Criminal Procedure for herself as also a pocket-size daughter alleging that she had been married to the Bhikan sometime in 1971 and out of the wedlock the child had been born. She further alleged that the fact that the respondent was already married and his spouse was living was not known. After the discovery of the previous marriage of the respondent the human relationship betwixt the parties gradually became strained and ultimately the respondent started totally neglecting the appellant and refused to maintain her. She had, therefore, no pick left only to ask for maintenance for herself as also for the kid.
Issue:
Criminal Procedure Code, 1973 - Department 125 - Hindu Marriage Deed, 1955 - Section 7 - There can be a marriage acceptable in law according to customs which do not insist on performance of rites as saptapadi and marriages of this type give rise to legal relationship which constabulary accepts.

Held:
RANGANATH MISRA, J:
The Additional Sessions Court and the High Court has adopted a technical approach while because the question of marriage. Criminal Process Code, 1973 - Section 125 - Hindu Marriage Human action, 1955 - Section seven - Evidence Human activity, 1872 - Section 114 - Parties had lived together well-nigh a decade public records including voters' lists described them as husband and wife and competent witnesses of the village of the wife as also the husband had supported the factum of marriage witnesses have too spoken virtually the reputation of the appellant existence known in the locality equally the married woman of the respondent.

Maintenance under Section 125 CrPC

A wife can claim maintenance from her husband irrespective of her religion under Section 125, CrPC. To prove the factum of marriage betwixt the husband and the wife, we must rely on whether the husband has treated the woman every bit his married woman in the order.Appropriately, the Voter's Identity Card, wherein she has been referred to as his wife, or the joint banking concern business relationship, or even the law complaint wherein he has stated that she is his married woman can be used to prove her condition every bit her wife. In Samudurai five. Rajlakshmi , it was held that when the wife comes to the court claiming maintenance, the husband should not exist immune to take advantage of his own wrong, alleging that there is a first spousal relationship subsisting and thereby, the spousal relationship between him and the married woman claiming maintenance is a nullity. In Mallika and Anr v. P Kulandi , the Madras High Court held that is sufficient if evidence is available to the effect that the parties lived together for considerable fourth dimension. In this case, the courtroom held that it was established that the petitioner had been living with the respondent for a considerable menses and continuously, so as to give style for the child to be born- this status of the petitioner is sufficient to become maintenance for herself equally well equally for the child. Where the husband misrepresented that the first wife was dead, the second married woman would be entitled to maintenance and the child from the maintenance and the child from the second marriage would be legitimate kid.

Hindu Personal Police force

Bigamy is defined as an offence not merely under the criminal law but also under HMA, Section 17, HMA says that any marriage between Hindus is void if on the date of such marriage, either political party had a husband or wife living. The same is punishable under Section 494 and 495, IPC.

Another choice available to the 2nd wife is to get the marriage annulled under Section 11 read with Section 5(ane) of HMA. Section 5, HMA provides for the weather condition for the valid marriage, on being that neither party should have spouse living at the fourth dimension of the wedlock. Accordingly, a marriage contracted while either party has a spouse living, can be annulled under Section xi of Hindu Marriage Act, 1955.

The provisions for divorce under Department 13, HMA also provide for the remedy available to the 2nd wife. Section thirteen (2) (i) of HMA says that in cases of marriages earlier commencement of this Human action, a second married woman can seek divorce on the ground that her husband's commencement married woman was alive at the time of the solemnization of the 2d marriage.

Fifty-fifty though the law for the interim maintenance under Section 24, HMA does not categorically provide for maintenance for 2d married woman, the Department has been given a very broad interpretation past the courts to bring the cases of second wives inside its ambit. The second tin can also merits interim maintenance under the interpretation given to Section 24, HMA. In Laxmibai 5. Ayodhya Prasad, it was held that 'wife' and 'husband' used in Section 24, HMA are non to be given strict literal significant as to convey only legally married married woman and husband. The expression wife and hubby is in the context of the department and scheme of the Act should mean a person claiming to exist a married woman or a husband.

Similarly, under section 25, HMA the provisions for permanent alimony has likewise been interpreted widely by the courts to protect the rights of the second wives. After the declaration of the nullity of the marriage, the 2nd wife could claim maintenance under section 25, HMA. It was held in Rajesh Bai v. Shantabai, that a adult female whose spousal relationship is void because of the existence of another married woman is entitled to maintenance under this Department. The second married woman can merits interim maintenance under Section xx of the Hindu Adoption and Maintenance Human activity, 1956 (HAMA). In Kulwant Kaur alias Preeti 5. Prem Nath, it was also said 'no sane lady would surrender herself unless she treats her male companian as her husband- whether the marriage is proved or non that is the point to be determined past the trial Court itself- but keeping in view the fact that the petitioner cohabited with the respondent, interim maintenance nether Section 20, HAMA is immune to her'.

Nether Hindu Women's Rights to Separate Residence and Maintenance Act, 1946, a Hindu married adult female was entitled to maintenance if her husband contracted another marriage provided this happened before the start of that Human activity. Still, Section 18, HAMA provides that a Hindu married woman tin can claim maintenance from her husband on the ground of the aforementioned grounds amongst several others irrespective of the fourth dimension when he contracted the other union (earlier or after 1956). Accordingly, a wife tin claim maintenance from her married man even later on she abandoned him when she comes to know that her husband has another married woman living.

The phrase 'whatsoever other married woman living has been interpreted variously by the unlike Loftier Courts. In Satyanarayana v. Sseetheramama, the A.P. High Court held that 'wife living' meant existing or alive and not necessarily living with the husband. Still, a subsequent decision of the Madras Loftier Court on the other hand in Annamalai Mudaliar v Perunayee Ammal, said that 'wife living' necessarily meant living with the hubby. The Mumbai High Court dissented from the decision of the Madras High Court, in Mani Bai five. Mukundrao, holding that under Department 18 of HAMA, the second wife tin can also claim a separate residence and maintenance under this Deed.

Determination
The social stigma attached with existence a 2nd wife, the absence of any legal condition to the relationship, and the enormous pain of being cheated into the marriage are undoubtedly extremely depressing for a woman. Fifty-fifty though there is no recognition given to a 2d wife, due to the judicial interpretation of existing law as discussed in a higher place, she may have some chances of getting maintenance. In the absence of any clear provisions nether the law, her chances of claiming her rights are largely dependent on the discretion of the judges.

Fifty-fifty under the criminal constabulary, it is extremely to prove bigamy, equally the union has to be validly performed to prove the offence of bigamy. Usually these loop holes in the law are exploited by men to defend themselves in such cases.

Given this background of contrasting legal precedents, lawmakers should make clear provisions to protect the rights of those women who accept been duped into 'second marriages' and then as to bring them some respite.

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