Is Second Marriage Without Divorce Legal in India?

Marriage is the life-changing experience of one’s life with joining in a holy matrimony. Marrying the right person for your life will be a blessing, but when you marry the wrong person, your life will be a disaster. There are circumstances where it could lead to stress, finances and many other reasons when you marry the wrong person. In some cultures, people would say it is not right to marry twice. Normally, society in our country is against divorce even when the married couple cannot live together or is unhappy. There are laws which allow couples to apply for divorce legally and restart their life. Whatever the reason for divorce, it will be a second chance when a person finds love again after exchanging the vows feeling. Things can work the next time when the couples are determined, but it is not guaranteed that the couple could thrive in the second marriage. Is It Legal to Have a Second Marriage Without Divorce?

No, it is illegal to have a second marriage without divorce in India. Under Section 494 of the Indian Penal Code, when a person is marrying a second time without divorce, then their second marriage is illegal. The Act is a punishable offence, and the person could face severe consequences. It is easier to file a complaint against the person under Section 415. Most people have a question about whether a ‘second marriage without divorce or not in India’. It is illegal for a person to marry twice when without having a divorce when the husband or wife is alive. Second Marriage Without Divorce in India Is Not Legal and Is A Punishable Offence: Unity in Diversity is followed in India as our country is filled with cultures and versatility. It makes our people unique in all aspects. There are many cultures with having requisites and laws for filing a divorce, and it is illegal without divorce second marriage in India . Marrying more than once without divorce is punishable by law as it is illegal in the country. Some of the Laws that contain provisions regarding second marriage are listed below:

What is Second Marriage Without Divorce in India?

A second marriage without divorce takes place when a person marries another while their first spouse is still alive and the two parties are legally married. In other words, it means “re-marrying” in court without first dissolving their previous union in a court of law.

• Desertion or Separation: A person who leaves their spouse or is separated from them or by them for several years is still legally married unless a divorce decree has been issued by the appropriate court.
• Bigamy: Legally, bigamy consists of a person marrying another while still being married to the first spouse (husband/wife). For Indian laws and values, bigamy is a punishable offense in almost all cases.
• Religious or Social Considerations: Even though some communities consider such a marriage to be valid after obtaining permission from religious or community elders, social or religious considerations have no effect on legal procedures for marriages in India.

Legal Rules and Acts Governing Second Marriage Without Divorce

Several religions and legal acts have different rules governing second marriage without divorce in India.

1. The Hindu Marriage Act:

Section 5 of the Hindu Marriage Act states the condition required for considering the marriage valid. Some of the conditions based on the context of the second marriage will be a time of marriage; the wife or husband of the party must not be living or alive. These also include the first marriage dissolved during the time of the second marriage; otherwise, the second marriage will be void based on Section 11 of The Hindu Marriage Act.

2. Indian Penal Code:

Under Section 494 of the Indian Penal Code, when a person marries while his/her husband/wife is living during the marriage them, it will be Bigamy, so they are a punishable offence. Likewise, when the husband/wife could file a complaint based on Section 415 of the Indian Penal Code as it states about cheating.

3. Christian Marriage Act

According to the Indian Christian Marriage Act of 1872, a Christian cannot remarry while their spouse is still alive unless they obtain a legal decree of divorce. This act further states that any marriages performed under these conditions are void from the beginning. The law also makes bigamy a punishable offense; therefore, individuals must complete the formal legal divorce process before entering into a second marriage. 

4. Parsi Marriage and Divorce Act

The Parsi Marriage and Divorce Act of 1936 prohibits Parsis from remarrying while their spouses are still alive. Marriages performed under these conditions are void from the start. Offenders found guilty of committing second marriages without divorce face severe punishments according to this act.

5. Muslim Act:

According to Muslim law, a Muslim man may have up to four wives provided he treats them equally, but this is only allowed under strict guidelines. On the other hand, a Muslim woman is not allowed or cannot remarry unless she gets a legal divorce from her husband or his death. Besides the personal laws mentioned, civil law and other marriage-related laws can also govern second marriages without divorce.

6. Evidence Act:

Under the Section 114 of the Evidence Act, there are provisions based on a presumption which are mentioned with respect to facts regarding human actions. When the fact is declared under the Act, then it will be called conclusive proof for the court. Punishment For Second Marriage Without Divorce In Hindu: Punishment for bigamy or 2nd Marriage Without Divorce will be imprisonment, and these could also extend to 7 years or a fine. Under Section 17 of the Hindu Marriage Act, if the person is committed a crime, then it will be based on Section 494 and Section 495 of the Indian Penal code. These are based on criminal offences, so imprisonment varies. Under Section 494 of the Indian Penal Code, when a person commits a crime, then they are punished with the imprisonment for up to 7 years or a fine. These will be based on the severity of the crime. Can I Marry Without Divorce In India? No, Second marriage is allowed in the country only if the couple is legally separated. The husband and wife could file a Joint petition before Family Court, and the marriage needs to be solemnized. The main reason is that without divorce second marriage will be an offence under section 494 of IPC. Based on Indian law, the Live in a relationship is also treated as the Act of Adultery, so it leads to jail term punishment when the wife or husband lodges a complaint against you. Section 17 HMA states the marriage between Hindus is void when the date of such marriage with either the husband or wife is alive. It will be punishable under Section 494 and Section 495 of IPC. Remarriage without divorce will render second marriage as the bigamous as they are offence under Indian law.  When Can A Second Marriage Be Considered To Be Valid? Second marriage is legal or valid under certain cases such as:

• If the spouse of the person marrying is missing for seven years
• If the person is not heard from him/her, but it is necessary that both parties need to be aware that the spouse of the person is marrying
• If the first marriage is declared as void by the court under the jurisdiction
• If there is no proof stating these conditions are not fulfilled during 2nd marriage
• Legal Rights For Second Wife:

Normally, the Second marriage with the existence of the first marriage will be void. So the second husband or wife does not have any legal rights. When the person marries the woman without disclosing about the first marriage, then the second wife could file a case against the person as Cheating.

Rights of the Second Wife and Children

In a second marriage without divorce in India, the second wife does not enjoy the legal status or rights of a lawful wife and cannot claim any of the privileges accorded to a wife by Indian law, including the right to claim alimony or share in the husband’s property. However, children born from such unions are considered legitimate and have a right to inherit their parent’s personal property.

Effects of Second Marriage Without Divorce

Marrying again while still married to a spouse has several effects on the individuals involved. First and foremost, such a marriage is void and completely illegal under Indian law. Therefore, the person committing the second marriage without divorce can be imprisoned for committing bigamy. In addition, a second marriage without divorce causes emotional trauma to the families involved and causes discord among the children and other family members.

Legal Criteria for Second Marriage in India

For a second marriage to be legal and void-proof in India, certain requirements should be met. These include:

1. Divorce as a Precondition 

For a second marriage to be legal in India, a person must first get a divorce decree from the relevant court. Once a final divorce decree is granted by the court, an individual can legally remarry without committing bigamy. 

2. Death of Spouse

When a spouse passes away, the marriage naturally comes to an end. The surviving partner can legally remarry by obtaining a valid death certificate as proof. Therefore, a second marriage performed after the death of the first spouse is legal in India.

3. Void and Voidable Marriage

A void marriage is a marriage that is illegal or prohibited by law. Such a marriage is illegal from the beginning, and the court does not recognize it. On the other hand, a voidable marriage is a marriage that is valid but can be annulled by one of the parties to the marriage who applies to the court. The marriage remains legal until the court issues the annulment order.

Conclusion

Having a second marriage without divorce is illegal for almost all Indians and comes with severe punishments. Therefore, it is essential to take the required steps to get divorced before getting involved in a second marriage.