- Marriage is a long-standing custom that has been practiced frequently since the time of the Vedic civilization and has continued to this day with numerous alterations. One of society’s most crucial institutions is marriage.
- Social anthropologists have discovered some type of mating and some level of social control over sexual relationships in all societies, regardless of whether they are proletarian, undeveloped, or developed.
- Every culture controls its people’s sexual behavior. Every person can marry once in their lifetime but if they want to marry for the second time then second marriage in Hinduism is prohibited. Always take legal advice for divorce.
What is the status of second marriage in Hinduism?
One of the requirements for a lawful marriage under the Hindu Marriage Act of 1955 (HMA) was that neither party should be sustained by a spouse at the time of the marriage. The previous rule prohibited a lady from getting married to a second man while her first husband was still alive unless customary allowed. Before some States enacted laws to discourage bigamous marriages and introduce the concept of monogamy among Hindus, there was no such barrier against men.
Second marriages in Hinduism were therefore deemed to be void from the start until & unless it falls under the exceptions (which will be discussed in further detail) according to the aforementioned clause and Section 11 of the Hindu Marriage Act, which came into effect in 1955.
What are the exceptions to Second marriage in Hinduism?
There are some exceptions defined under the Indian Penal Code when second marriage in Hinduism becomes valid-
1. If the first marriage was declared void by the Court of competent jurisdiction
2. If any person marries during the subsistence of the first marriage due to the fact that the husband/wife of that person is-
- Continuously absent for the last seven years.
- Not been heard of as being alive by such a person.
If these conditions are fulfilled then the second marriage in Hinduism becomes lawful & the children borne out of such marriage are valid.
What are the circumstances under which the Second Marriage in Hinduism can be performed?
There are certain circumstances under which a Hindu man/woman is permitted to solemnize the second marriage. Some of these circumstances are-
- When any of the spouses has voluntary sexual intercourse apart from his/her partner.
- When either of the spouses has deserted the other spouse for a continuous period of two years.
- When any of the spouses have converted to another religion from Hinduism.
- When any of the spouses suffers is of unsound mind or is suffering continuously from a mental disorder.
According to Section 114 of the Evident Act, the Court shall assume the presence of likely facts, taking into account human behavior, the usual progression of events, and the employment of common sense as a judicial instrument.
What are the legal grounds available to the second spouse in the case of the second marriage of Hinduism?
- Bigamy – In ancient times, kings used to have different wives, but gradually this practice was reduced & prohibited by the enactment of the Hindu Marriage Act. After 1955 second marriage in Hinduism was totally prohibited. The husband/wife of the second marriage may sue the other partner for bigamy under the Indian Penal Code. Whoever marries during the subsistence of the first marriage, if the first spouse is living, is guilty of bigamy. The person guilty of bigamy shall be punishable with imprisonment, which may extend up to 7 years & shall also be liable to a fine. That such second marriage in Hinduism will be treated as void.
- Cheating – As per the Indian Penal Code, second marriage in Hinduism is considered cheating because whoever commits the offense of marrying someone by concealing the fact of his/her first marriage shall be punishable with imprisonment, which may extend up to 10 years & shall be liable to a fine also.
- Cruelty by husband/relative of husband – When either husband or relative of the husband of a woman subjects her to cruelty shall be punishable with imprisonment for a term which may extend up to three years & also liable to a fine. In a landmark decision of the Supreme Court, it was held that although second marriage in Hinduism is prohibited & considered void but the wife of second marriage may file a petition under Section 498A of the Indian Penal Code.
- Maintenance – Even though Section 24 of the Hindu Marriage Act does not expressly mention second spouses when discussing interim maintenance, the courts have given the Section a very broad construction to encompass second wives’ circumstances. In accordance with the interpretation of Section 24 of the Hindu Marriage Act, the second wife of the second marriage in Hinduism may also request interim maintenance. The provisions for lifelong alimony under Section 25 of the Hindu Marriage Act have also been broadly interpreted by the courts to protect the rights of second wives. The second wife could file a claim for maintenance under Section 25 of the Hindu Marriage Act following the declaration of the nullity of the marriage.
For a woman, the social shame of becoming a second wife from the second marriage in Hinduism, the lack of legal status for the union, and the excruciating pain of being duped into marriage are definitely quite gloomy.
Even though a second wife from the second marriage in Hinduism is not acknowledged, she may still be eligible for support due to the judicial interpretation of the legislation that was mentioned above. Her possibilities of asserting her rights are primarily dependent on the judges’ judgment since there are no explicit legal provisions.
Even under criminal law, it might be difficult to establish bigamy because the marriage must have been legally performed in order to establish the offense. Men typically make use of these legal loopholes to defend themselves in these situations. Consult our team of legal experts for taking divorce & family advice.