Second Marriage in Hindu Law

A second marriage is known as bigamy if the first or previous marriage is still valid. In simple words, it occurs when a person gets remarried while their first marriage is still existing. The second marriage that a person enters into in a circumstance where the husband or wife is still living is not legitimate in the eyes of the law and is thus regarded as invalid.

Despite being illegal in India, bigamy is nonetheless widely practiced in rural regions. The second wife or the victim of bigamy has few, if any, legal rights or protections due to this conflict between the legal position and social practice. The second wife may have some chance of receiving maintenance from the husband; however, this is dependent on the judges' discretion because there is no explicit legal provision for it.

What is the meaning of Second Marriage under Hindu Law?

Second marriage refers to "the act of marrying one person while already legally married to another." As the name indicates, the term connotes the duality of marriage in which a man or woman marries another spouse while bound by the previous monogamous marriage.

Second Marriage under Hindu Law becomes an offence only if the husband or wife is alive. It is an offence even if it is performed with the consent of the first wife.

It will not apply in a condition when −

• The husband or wife of the first marriage is dead or;

• The first marriage has been dissolved by a decree of divorce; or

• The former marriage is void or declared void by a decree of nullity; or

• There is no information of one’s husband or wife from last seven years.

Section 494 of the Indian Penal Code exempts from punishment a second marriage contracted seven years after the spouse's absence.

In the case of Kanwal Ram v. HP Administration (1966 AIR 614; SCR (1) 539), the Supreme Court said that second marriages must verify the fundamental rituals. Even if the accused admits to the crime, the second marriage will still need to be established. Otherwise, it won't be seen as bigamy but rather as simple adulterous conduct.

Validity of Marriage

Any two Hindus may get married if the following requirements are met, specifically:

Monogamy

The criterion forbids bigamy or polygamy and suggests monogamy. A person's ability to remarry might be prohibited if their spouse was still living at the time of the marriage. However, it is important to remember that a person's first marriage should be a union that is recognized by the law.

Bigamy: Section 5(i) of Hindu Marriage Act, 1955

Bigamy and polygamy are prohibited by Section 5(i). A bigamous marriage is declared void under Section 11 and is punishable by law under Sections 494 and 495 of the IPC for both Hindu males and females. The crime of bigamy is committed only if the necessary marital rites are performed.

Mental Health or Capacity

It necessitates that neither party be mentally unfit to give legitimate consent to marriage at the time of the wedding. If neither partner in the marriage exhibits symptoms of a mental disease at the time of marriage, that is severe enough to render them ineligible for marriage and procreation of child.

In Tarlochan Singh v. Jit Kaur (AIR 1986 P H 379), the court declared the marriage null and void because the wife developed schizophrenia shortly after marriage and the disease was not disclosed to the husband prior to marriage.

Marriageable Age

The bride and groom must be at least 18 and 21 years old respectively, at the time of marriage. As a result, the Hindu Marriage Act forbids child marriage. However, failure to comply with this requirement does not render the marriage null or void.

Avoidance of Degrees of Prohibited Relationship

The degree of any illegal relationship must not apply to the parties to the marriage. Section 3(g) defines "degree of forbidden relationship" as the degree to which two people are linked to one another in any of the following ways

• By lineal ascent and

• By affinity.

Sapinda Relationship

The Sapinda relationship is critical to marriage, according to the Dharmashastra. 'Pinda' signifies body in the Mitakshara Law of Marriage; hence, those who are connected to one another by blood or consanguinity are referred to as sapindas. The Hindu Marriage Act accepted the Mitakshara criteria, although it only allows for a maximum of 5 degrees of Sapinda kinship through the father and 3 degrees through the mother.

Religious Conversion for Contracting Second Marriage

If a Hindu converts to any other religion, he is not absolved of his obligations arising from his previous marriage as a Hindu. So, he will be considered a Hindu at the time of contracting a second marriage post apostasy and the provisions of this section will apply. So, basically, conversion to another religion does not give a reason to remarry without attracting the provisions of this section and will still be dealt with under the personal laws of the religion one belonged to at the time the marriage was contracted.

In the case of Sarla Mudgal v. Union of India (1995 AIR 1531 SC), the Supreme Court ruled that if a man, after renunciating Hinduism, converts to Islam and marries again without obtaining a divorce from his first wife, the marriage is illegal. He will be punished for committing bigamy under Section 494 of the IPC.

Law Stands on Bigamy

The laws on bigamy in India are −

Hindu Marriage Act, 1955

According to Section 17(1) of the Hindu Marriage Act, 1955, which regulates punishment for bigamy to Hindu person, if a Hindu marries someone else without first obtaining the dissolution of an existing marriage or while his first marriage is still in effect, they shall be subject to criminal prosecution under the Indian Penal Code.

Parsi Marriage and Divorce Act, 1936

Bigamy was proclaimed illegal and subject to the penalties outlined in Sections 494 and 495 of the Indian Penal Code, 1860, under Section 5 of the act.

Indian Divorce Act, 1896

Bigamy is not specifically addressed by the legislation, however Section 60(3) of the act stipulates that neither the husband nor the wife should have been in a previous marriage and that anybody who makes a false oath or statement is subject to punishment under Section 193 of the Indian Penal Code. This provision states that numerous marriages are prohibited by this Act.

Special Marriage Act, 1954

Bigamy is punished by Sections 494 and 495 of the Indian Penal Code of 1860, according to Section 44 of the act. There are no particular rules against bigamy in the Muslim Women (Protection of Rights on Divorce) Act of 1986, unlike the Hindu, Parsi, Christian, or even "special marriage" legislation. A Muslim man is permitted to wed twice, three times, or four times under this law, provided that he treats and respects each wife equally. He will be held responsible if he doesn't comply.

Rights of the Second Wife in India

There is no specific provision for the second spouse. The second wife is not entitled to have any legal rights because such a second marriage is considered to be void. However, she has conditional maintenance right and property right.

Maintenance Right

There is no provision in the Hindu Marriage Act that allows a second wife to demand maintenance from her husband unless and until their marriage qualifies for the exception set out in Section 494 of the Indian Penal Code. The second wife, whose union with her husband is regarded as illegal by the law pursuant to Section 125 of the Code of Criminal Procedure, 1974, is not entitled to support from the husband. Until they reach adulthood and are unable to support themselves, the children of the second wife, whose marriage is invalid, are entitled to maintenance.

If they are physically or mentally disabled and are unable to support themselves, they may also ask their father for maintenance after they become 18 years old. The married daughter of the second wife is exempt from this requirement, nevertheless. In some circumstances, the courts have determined that the second wife, whose union with her husband was illegitimate, may request support provided she can demonstrate that she was unaware of her husband's first marriage.

Property Right

According to the tradition, a second marriage is invalid unless it falls within one of Section 494 of the Indian Penal Code's exemptions. None of the rights enjoyed by the first wife apply to the second wife. The second wife may be able to claim ownership of her husband's property if the marriage is legal. The right to maintenance is not available to the second wife, whose union with her husband has been deemed invalid and unlawful in the eyes of the law. She may, however, request maintenance if she can demonstrate that she was unaware of her husband's previous marriage. Children from second marriages, have the same rights to their father's property as children from first marriages.

The second wife’s child is eligible to inherit the husband's self-acquired property, but will not be entitled to claim on father’s ancestral property. The husband may leave his self-acquired property to anybody, including the second wife, by will if the marriage is not recognized by the law. However, if the spouse passes away without making a will, his assets will be distributed to his heirs in accordance with the applicable succession laws. The second marriage will be regarded as lawful, and the second wife will be fully entitled to her husband's ancestors' and self-acquired property provided it occurs only after his divorce from the first wife or after the death of the first wife.

Conclusion

Since second marriage faces a stigma in society and have a number of issues, the government should explain this regulation. These women thus experience a number of issues and are stigmatized by society and even their own families. These women thus receive no help from society or even from their own family. In these circumstances, they experience defeat and helplessness due to a lack of support. For welfare of the second wife, some form of regulations is needed that could define their property and maintenance rights. So that the second wife has a place to live and may subsist on the minimal needs, the law should specify any exact amount of her husband's property, whether inherited or earned.

FAQs

Q1. Why is Bigamy a punishable offense?

Ans. According to Section 494 of the Indian Penal Code, bigamy is forbidden in India. According to the law, anyone who marries someone else when they are already married should be considered to have committed a crime and should be punished. This is because the marriage is invalid because it took place while the husband or wife was still alive.

Q2. What if the person hides the first marriage and contracts another one?

Ans. A complaint for cheating can be filed under Section 415 of the IPC.

Q3. Is it necessary to make marriage registration mandatory?

Ans. The Supreme Court has made marriage registration mandatory in order to prevent second marriages and child marriages; however, the marriage performed through traditional means, is equally valid and their relationship (as husband and wife) would not get affected even if they do not register their marriage.

Q4. Does attending second marriage is abetting bigamy?

Ans. It is settled law that mere participation in the second marriage would not ipso-facto make the relatives or the participants liable for abetment to bigamy since abetment connotes an active suggestion or support for the commission of the crime.