Legal Guide

Can there be a Second marriage without Divorce?

by Bhavya Choudhary · 3 min read

Second marriage without divorce

Introduction 

  • The concept of divorce and bigamy is taboo in India, as many topics related to it are frowned upon.
  • Some religions and laws accept Marriages up to 4 or 3 times for one husband who does not have to divorce the first to marry the others.
  • There are various amalgamations in our culture and religions, which gives us a different theory every time, and law provisions are taken into account for every scenario.

How can one prove a Second Marriage?

In India, second marriage without divorce with the first wife is illegal and prohibited. This is a punishable offense and can be penalized harshly.

  • The situation and conditions that make a marriage legal are stated thoroughly in Section 5 of the Hindu Marriage Act of 1955.
  • The requirements and conditions for a second marriage are stated in Section 11 of the Hindu Marriage Act of 1955.
  • This section briefly states that under any circumstances, a second marriage without divorce is void and null if the first is not legally divorced by a family court.
  • Different religions accept this in different terms, such as The Christian Marriage Act, there is no mention of bigamy directly, but it is stated that a person can be punished severely if they commit a second marriage without divorce from the first marriage. It is punishable under Section 419 of the Indian Penal Code.
  • In Muslim law also, there is no mention of bigamy as such, but in “Quran,” it is written that a male gender can be married to 4 wives at once. Here, the husband does not need to divorce anybody for another marriage.
  • The only conditions for second marriage without divorce are that the wives are to be treated equally with love and respect. The responsibility would be fully accepted and established.

Is it Legal to Marry without Having a Divorce?

As per Section 494 of the Indian penal code, it is illegal and prohibited to commence a second marriage without divorce. 

If a person commits a second marriage without divorce while their first partner is living, it is considered “Bigamy.” Bigamy, as per Indian law, is a punishable offense and can be acted as “cheating” under Section 415, where the wife can file a complaint against the husband for second marriage without divorce with legal consultation from a professional.

  • Any facts that are related to human actions are present in Section 114 of the Indian Evidence Act.
  • For the Parsi Marriage and Divorce Act, Section 5 states that a second marriage without divorce is a punishable offense if the first is not legally divorced. 
  • The Special Marriage Act also claimed that bigamy would be punished and charged as per Section 44. Second, marriage without divorce is not acceptable and is illegal. 

What are the Laws and Punishments for Bigamy?

Different sections under different laws clearly state that bigamy or second marriage without divorce is illegal and punishable by law.

  • The individual committing bigamy, which is a second marriage without divorce, will be held accountable under sections 494 and 485 of the Indian Penal Code. This is stated in section 17 of the Hindu Marriage Act of 1955.
  • It is a criminal charge and offense under that person’s name, as this is a prohibited relationship. The grieving wife or husband should consult a divorce lawyer before taking any action in this matter to make better choices.

What does Section 494 of the Indian Penal Code Say?

  • The Indian Penal Code section 494 states that if a person commits second marriage without divorce or a crime similar to its section, then they can be imprisoned for seven years or more, depending on the crime.
  • A fine is also charged in some cases, or both are charged together, which depends on crime severity. The individual can take legal consultation if they are facing such charges or being a victim of such issues. 

What does Section 495 of the Indian Penal Code say?

In this section, it is stated that if a person commits a second marriage without divorce and hides the relationship without any commitment and communication about the first marriage. The charges are fine or up to 10 years of imprisonment or both.

Is Second Marriage without Divorce Valid?

There are some theories and controversies related to such topics, which can be solved with the help of a divorce lawyer who can guide the couples to take the necessary action where it is required. 

  • An individual cannot prove that their second marriage without divorce is legal. This is because such marriage is illegal and punishable by law.

A second marriage is only considered legally valid if they meet certain conditions, such as: 

  • The first was null and void, as deciphered by the Hon’ble Court. 
  • The partner is missing and has not returned or been found for 7 to 8 years. 

Legal rights of a wife in the Second Marriage 

Second marriage without divorce from the first one has no validation or value. It is null and void until it is proven that the first marriage is divorced or separated. 

The second wife holds no legal rights if the first wife is present and no divorce has taken place.

However, the children of the second wife have rights over the property and wealth of their biological father as per sections 11 and 16 of the Hindu Marriage Act, 1955

Conclusion

In India, marriages are a sacred ritual, and the bond is to be respected and accepted, so laws are introduced to save relations and their fundamental interests. 

The parties can seek professional help for taking divorce or settlement before ending the first marriage.

Bhavya Choudhary

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Bhavya Choudhary

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