Second marriage, during the subsistence of the first marriage, is illegal in India and the relationship arising from the same does not have any validity. Even though the law is very clear on this point, ‘second marriage’ is a common practice in Indian society. As a result of the aforementioned contrast between the law and social practice, a second wife in India have little protection under the law.
With the commencement of Hindu Marriage Act, 1955 (HMA), one of the condition provided for a valid marriage was that neither party should have a spouse living at the time of the marriage. Under the old law, there was a bar against a woman marrying a second husband while her first husband is alive unless custom permitted her. There was no such bar against men, till some States passed laws for prevention of bigamous marriages, and introduced the principle of monogamy among Hindus.
After 1955, with the help of the aforementioned provision and Section 11, Hindu Marriage Act, second marriages came to be declared as null and void ab initio. In this behalf, under the Hindu Marriage Act it is necessary that a marriage is 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 attached with being a second wife, the absence of any legal status to the relationship, and the enormous pain of being cheated into the marriage are undoubtedly extremely depressing for a woman. Even though there is no recognition given to a second wife, due to the judicial interpretation of existing law as discussed above, she may have some chances of getting maintenance. In the absence of any clear provisions under the law, her chances of claiming her rights are largely dependent on the discretion of the judges.
Though monogamy is the rule from Vedic times, polygamy has, as an exception, existed side by side. But, the wife who was wedded first was alone the wife in the fullest sense. One text of Manu seems to indicate that there was a time when a second marriage was allowed to a man after the death of his former wife. Another set of text justifies a husband taking another wife. It was only when a wife was barren, diseased or vicious that she could be superseded and a second marriage was valid; as also when she consented.
As a norm, the first wife had precedence over the others and her first-born son over his half brothers. It is probable that originally, the subsequent wives were considered as merely a superior class of concubines. Later, in the courts of British India. it was a settled law that a Hindu male could without any restriction marry again while his previous marriage subsisted (second marriage) without his wife’s consent and justification.
Custom, however, did prevent the second marriage without the consent of the first wife and without making provision for her. It was however held in Raghveer Kumar v Shanmukha Vadivar, that a custom prevalent amongst Nadars in Udumalapeta Taluk preventing a second marriage, even if established could not have the force of law.
Proof of Second Marriage
The supreme court has laid down that proof of solemnization of second marriage in accordance with the essential religious rites applicable to parties is absolutely essential and a must for conviction for bigamy and that mere admission on the part of the accused that he had contacted second marriage was not enough and that such admission is not evidence for the purpose of proving marriage in an adultery or bigamy case. In customary marriage, where custom is not pleaded, living together as husband and wife would not be enough. But 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 marriage is performed according to religious rites, performance of homa and saptapadi are essential and where they are not proved to have been performed it cannot be called a solemnised marriage under the section.
To prosecute a person under Section 494 I.P.C., there is nothing in the act forbidding a prosecution for offence punishable under Section 494 of penal code not preceded by declaration obtained under provisions of the act that second marriage is void. Second marriage must be legally valid marriage so as to come within mischief of Section 494.
The word ‘ solemnize ‘ means in connection with a marriage, ‘ to celebrate the marriage with proper ceremonies and in due form’, according to shorter oxford dictionary. It follows, therefore, that unless the marriage is ‘ celebrated or performed with proper ceremonies and due form ‘, it cannot be said to be solemnized ‘. It is therefore, essential, for the purpose of Section 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 be married, will not make the ceremonies prescribed by law or approved by any established custom.
Husband or Wife Must be Alive
The section will not apply if the husband or wife of the first marriage is dead or if the first marriage has been dissolved by a decree of divorce. The limit of one year imposed by Section 15 will not apply to marriage under the section, as Section 15 is confined only to the parties to that marriage. The present section will not also apply if the former marriage is void or declared void by a decree of nullity. The section declare the subsequent marriage void. It will not, therefore, affect the validity of the former marriage. Sec. 494 of the Indian Penal Code exempts from punishment a second marriage and considers it bona fide if contracted after the absence of seven years of the husband or the wife, who has not been heard of by those likely to hear from him or her, during the period. Offences under sec 494 and 495 of the Indian Penal Code are non-cognizable.
In case of a spouse unheard of for more than 7 years, a presumption can be drawn under Section 108 of the Indian Evidence Act, 1872 (Evidence Act) that the spouse is dead. In such an event, the other spouse can marry a second time on the ground that the former marriage is dissolve due to the civil death of his/her spouse. This was held in Lalchand Narwali v. Mahant Ram Rupgir. Also it is important to note that as a second marriage is void even if it is not declared as void, a third party interested in the marriage (the first wife) can also get the second marriage declared as null and void.
Who Can Complain
Only the person aggrieved can complain in case of bigamy. if it is the wife who is aggrieved, then her father can complain as he is the lineal ascendant of the wife.
Grant of Injunction
A petition restraining the husband/wife from marrying second time in not maintainable. But a suit for perpetual injunction by the wife restraining her Hindu husband from contracting second marriage would lie in the jurisdiction of civil court to entertain such suit is not excluded by Hindu marriage act. A petition for declaration that the second marriage is void can be filed by only parties to the marriage and not by first wife.
Ishwar Singh v. Smt Hukum Kaur – AIR 1965 All. 465
The opposite party Smt. Hukum Kaur filed an application under 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 allowance from him for maintenance. The applicant denied to have married the opposite party. Party led evidence and the learned magistrate held that the marriage of the applicant with the opposite party has been established, 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 case with a recommendation at the order passed by the magistrate be set aside, because, admittedly the opposite parties previous husband Brahma Pal was alive and therefore there could be no legal marriage between the opposite party and the applicant entitling the opposite party to receive any maintenance.
In this case it was also observed, “so long as such a divorce has not be obtained, the previous marriage subsists and, therefore, the second marriage cannot be contracted by the Hindu so long his spouse is living”. Section 5 of the HMA provides that the marriage may be solemnized between any two Hindu’s , if neither party has the spouse living at the time of the marriage. In the instant case the previous husband of the opposite party is still alive and therefore a second marriage with the applicant even if it is held to have taken effect was wholly illegal and can not given any right to get a maintenance from the applicant.
Under criminal law, the first wife aggrieved by a second marriage can file a complaint for bigamy. Under section 494, IPC, “whoever, having a husband or wife living, contracts a marriage during the life of the former husband or wife, is void…” and therefore the same is also an offence punishable with imprisonment up to 7 years or fine or both.
This section does not extend to any person whose marriage with such husband or wife has been declared void by the court of competent jurisdiction.
Under section 495, IPC, bigamy committed by concealing the fact of the first marriage is punishable with 10 years imprisonment or fine or both. A complaint can also be filed for cheating under section 415, IPC. Cheating is defined under section 415, IPC, as fraudulently or dishonestly inducing the person so deceived to do or omit to do 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 damage or harm to that person in body, mind, reputation or property. Therefore, if the fact of the subsistence of the first marriage is kept a secret, apart from a complaint under bigamy provision, a complaint can also be filed for those offences of cheating. Often it is difficult to prove the fact of the second marriage. A man faced with the criminal complaint for bigamy would often argue that his relationship with the second woman was not one of marriage as the necessary formalities of a valid marriage as required by law were not performed.
Naurang Singh v. Sapla Devi – AIR 1968 All. 1958.
Smt. Sapla Devi made an application under Section 488, CrPC, for grant of maintenance on the ground that she was married to Naurang Singh, petitioner about two years ago and thereafter one year of the marriage the relation between them became strained and Naurang singh also married a second wife, namely Kalpa Devi, that about eight months ago he, dispossessed of her ornaments and clothes and turned her out of the house, and there after she started living with her father. It was said that during this period, Naurang Singh completely neglected to maintenance at Rs. 30 per mensem from her husband.
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.
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. 40 per mensem. 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. Only legally married woman are entitled to maintenance under section 488, CrPC. It was observed, “Under section 5 and 11 of HMA, 1955, a second marriage with a previous married wife living is null and void”.
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 between the husband and the wife, we must rely on whether the husband has treated the woman as his wife in the society.
Accordingly, the Voter’s Identity Card, wherein she has been referred to as his wife, or the joint bank account, or even the police complaint wherein he has stated that she is his wife can be used to prove her status as her wife.
In Samudurai v. Rajlakshmi , it was held that when the wife comes to the court claiming maintenance, the husband should not be allowed to take advantage of his own wrong, alleging that there is a first marriage subsisting and thereby, the marriage between him and the wife claiming maintenance is a nullity.
In Mallika and Anr v. P Kulandi , the Madras High Court held that it is sufficient if evidence is available to the effect that the parties lived together for considerable time. In this case, the court held that it was established that the petitioner had been living with the respondent for a considerable period and continuously, so as to give way for the child to be born- this status of the petitioner is sufficient to get maintenance for herself as well as for the child. Where the husband misrepresented that the first wife was dead, the second wife would be entitled to maintenance and the child from the maintenance and the child from the second marriage would be legitimate child.
The social stigma attached with being a second wife, the absence of any legal status to the relationship, and the enormous pain of being cheated into the marriage are undoubtedly extremely depressing for a woman. Even though there is no recognition given to a second wife, due to the judicial interpretation of existing law as discussed above, she may have some chances of getting maintenance. In the absence of any clear provisions under the law, her chances of claiming her rights are largely dependent on the discretion of the judges. Even under the criminal law, it is extremely difficult to prove bigamy, as the marriage 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 have been duped into ‘second marriages’ so as to bring them some respite