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Introduction
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, second
wives 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 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 introduce
the principle of monogamy among Hindus. After 1955, with the help of the
aforementioned provision and Section 11, Hindu Marriage Act, second
marriages came be declared null and void ab initio. In this behalf,
under the Hindu Marriage Act it is necessary is a marriage 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.
Even under the criminal law, it is
extremely 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.
Historical Prospective
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 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
parformed it cannot be called a solemnised marriage under the section.
To prosecution 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 she 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. Notice a that sec 494 of the
Indian Penal Code exempts from punishment a second marriage bona fide
contracted after seven years absence 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.
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 restarting
her Hindu husband from contracting second marriage would lie
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.
Hindu
Marriage Act, 1955
With the commencement of Hindu Marriage Act, 1955 (HMA), one of the
condition provided for a valid 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 introduce the principle of monogamy among
Hindus. After 1955, with the help of the aforementioned provision and
Section 11, Hindu Marriage Act, second marriages came be declared null
and void ab initio. In this behalf, under the Hindu Marriage Act it is
necessary is a marriage 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. 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 the second marriage declared as null and void.
Ishwar
Singh v. Smt Hukum Kaur
AIR 1965 All. 465
Facts:
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, that the applicant with the opposite party
and, 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.
Held:
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 it is held to have taken effect was
wholly illegal and can not given any right to get a maintenance from the
applicant.
Trailokya
Mohan v State of Assam
AIR 1968, Assam 22
Facts:
Petitioner having already a wife living name Subarna Bala Nath , married
a second time one Sefali Debi and thus committed the offence of bigamy
punishable under the IPC read with the provisions of the HMA 1955.
Held:
In this case the court further observed, under the provision of sec 5
(1) HMA , one of the condition of a valid Hindu marriage is that it
should be solemnized between two Hindus , neither party having a spouse
living at that time. Where the accused himself in his statement under
sec 342 CrPC had admitted that he did marry A during the life time of
Bill of Lading , whom he married first. And that admission was
corroborated by oral evidence of witnesses who in their
cross-examination did not take a stand that the second marriage was
invalid, there is a presumption of a valid marriage and when a strong
satisfactory and conclusive evidence to rebut the presumption was
totally lacking in the case, it must be held at a valid second marriage
was solemnized and that was the basis of the admission made by the
accused and it could be relied upon.
Criminal
Law
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
dishonesty 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 argued that his relationship with the second woman
was not one of marriage as the necessary as the necessary formalities of
a valid marriage as required by law were not performed.
Naurang
Singh v. Sapla Devi
AIR 1968 All. 1958.
Facts:
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 cloths 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.
Issue:
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.
Held:
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".
Banshidhar
v Chhabi Chatterjee
AIR 1967 Patna 277
Facts:
CrPC (1898) sec 488 - Hindu woman claiming to have been married in 1962
to petitioner - Petition allegation that she was not his wife and that
he was already married in 1952 - on evidence.
Held:
Woman to be legally married to petitioner - maintainability of claim
under sec 488 - if petitioner on the date of marriage with the claimant
woman had already a legally wedded wife, his marriage with the claimant
- woman will be void under sec 11 of the HMA. A claim under sec 488 by a
woman can be made only if she is the legally wedded wife of the person
from whom she claim maintenance - such claim has nothing to do with the
personal law on maintenance has been changed by the Hindu adoption and
maintenance act 1956, which does not contain any provision entitling a
woman to claim maintenance from a person with whom she entered into a
void marriage - as such, the claimant woman will not be entitled to
maintenance under sec 488.
Evident Act
Under Section 114 of the Evident Act the Court shall presume the
existence of probable facts, having regard to human conduct and the
common course of the events and common sense being used as the judicial
tool. In sumitra Devi v. Bhinkan Chaudhary , it was held that the fact
that the couples were living as husband and wife for decades was
relevant in proving factum of their marriage. Again in Rangnath
Parmeshwar v. Pandirao Mali , it was held that if H and W were living as
Husband and Wife, then even in the absence of proof to that effect, a
rebuttal presumption would arise that the marriage between them was
valid.
Sumitra
Devi v. Bhikan Choudhary
(1885) 1 SCC 637.
Facts:
Sumitra Devi filed an application for maintenance under Section 125 of
the Code of Criminal Procedure for herself as also a minor daughter
alleging that she had been married to the Bhikan sometime in 1971 and
out of the wedlock the child had been born. She further alleged that the
fact that the respondent was already married and his spouse was living
was not known. After the discovery of the previous marriage of the
respondent the relationship between the parties gradually became
strained and ultimately the respondent started totally neglecting the
appellant and refused to maintain her. She had, therefore, no option
left but to ask for maintenance for herself as also for the child.
Issue:
Criminal Procedure Code, 1973 - Section 125 - Hindu Marriage Act, 1955 -
Section 7 - There can be a marriage acceptable in law according to
customs which do not insist on performance of rites as saptapadi and
marriages of this type give rise to legal relationship which law
accepts.
Held:
RANGANATH MISRA, J:
The Additional Sessions Court and the High Court has adopted a technical
approach while considering the question of marriage. Criminal Procedure
Code, 1973 - Section 125 - Hindu Marriage Act, 1955 - Section 7 -
Evidence Act, 1872 - Section 114 - Parties had lived together about a
decade public records including voters' lists described them as husband
and wife and competent witnesses of the village of the wife as also the
husband had supported the factum of marriage witnesses have also spoken
about the reputation of the appellant being known in the locality as the
wife of the respondent.
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 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.
Hindu
Personal Law
Bigamy is defined as an offence not only under the criminal law but also
under HMA, Section 17, HMA says that any marriage between Hindus is void
if on the date of such marriage, either party had a husband or wife
living. The same is punishable under Section 494 and 495, IPC.
Another option available to the
second wife is to get the marriage annulled under Section 11 read with
Section 5(1) of HMA. Section 5, HMA provides for the conditions for the
valid marriage, on being that neither party should have spouse living at
the time of the marriage. Accordingly, a marriage contracted while
either party has a spouse living, can be annulled under Section 11 of
Hindu Marriage Act, 1955.
The provisions for divorce under
Section 13, HMA also provide for the remedy available to the second
wife. Section 13 (2) (i) of HMA says that in cases of marriages before
commencement of this Act, a second wife can seek divorce on the ground
that her husband's first wife was alive at the time of the solemnization
of the second marriage.
Even though the law for the interim
maintenance under Section 24, HMA does not categorically provide for
maintenance for second wife, the Section has been given a very wide
interpretation by the courts to bring the cases of second wives within
its ambit. The second can also claim interim maintenance under the
interpretation given to Section 24, HMA. In Laxmibai v. Ayodhya Prasad ,
it was held that 'wife' and 'husband' used in Section 24, HMA are not to
be given strict literal meaning as to convey only legally married wife
and husband. The expression wife and husband is in the context of the
section and scheme of the Act should mean a person claiming to be a wife
or a husband.
Similarly, under section 25, HMA the
provisions for permanent alimony has also been interpreted widely by the
courts to protect the rights of the second wives. After the declaration
of the nullity of the marriage, the second wife could claim maintenance
under section 25, HMA. It was held in Rajesh Bai v. Shantabai , that a
woman whose marriage is void because of the existence of another wife is
entitled to maintenance under this Section. The second wife can claim
interim maintenance under Section 20 of the Hindu Adoption and
Maintenance Act, 1956 (HAMA). In Kulwant Kaur alias Preeti v. Prem Nath
, it was also said 'no sane lady would surrender herself unless she
treats her male companian as her husband- whether the marriage is proved
or not that is the point to be determined by the trial Court itself- but
keeping in view the fact that the petitioner cohabited with the
respondent, interim maintenance under Section 20, HAMA is allowed to
her'.
Under Hindu Women's Rights to
Separate Residence and Maintenance Act, 1946, a Hindu married woman was
entitled to maintenance if her husband contracted another marriage
provided this happened before the commencement of that Act. However,
Section 18, HAMA provides that a Hindu wife can claim maintenance from
her husband on the basis of the aforementioned grounds amongst several
others irrespective of the time when he contracted the other marriage
(before or after 1956). Accordingly, a wife can claim maintenance from
her husband even after she abandoned him when she comes to know that her
husband has another wife living. The phrase 'any other wife living has
been interpreted variously by the different High Courts. In
Satyanarayana v. Sseetheramama , the A.P. High Court held that 'wife
living' meant existing or alive and not necessarily living with the
husband. However, a subsequent decision of the Madras High Court on the
other hand in Annamalai Mudaliar v Perunayee Ammal , said that 'wife
living' necessarily meant living with the husband. The Bombay High Court
dissented from the decision of the Madras High Court, in Mani Bai v.
Mukundrao , holding that under Section 18 of HAMA, the second wife can
also claim a separate residence and maintenance under this Act.
Conclusion
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 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.
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