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Second Marriage

In 1955, the Hindu Marriage Act was drafted, which prohibited marriage of a Hindu whose spouse was still living. Thus polygamy became illegal in India in 1956, uniformly for all of its citizens except for Hindus in Goa where polygamy is legal, and for Muslims, who are permitted to have four wives.

Section 5 of Hindu Marriage Act says:

5. Conditions for a Hindu Marriage: – A marriage may be solemnized between two
Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind ; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such as extent as to be unfit for marriage and the procreation of
children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of
eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each
of them permits of a marriage between the two;

Section 11.- Void marriages.- Any marriage solemnized after the commencement of
this Act, shall be null and void and may , on a petition presented by either party thereto
against the other party, be so declared by a decree of nullity if it contravenes any one of
the conditions specified in clause (i), (iv) and (v) of section 5.

The cheated spouse can take divorce on this ground.

Section 13 reads:

Section 13. Divorce. – (1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the husband or the
wife, be dissolved by a decree of divorce on the ground that the othe r party-
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Section 493 to 497 of Indian Penal Code deals with the Second Marriage during the life time of First Spouse.

Section 494 reads as:

494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

More details about Section 494:

Description

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Applicable Offences

Marrying again during the life-time of a husband or wife

Punishment – 7 Years + Fine

This is a Bailable, Non-Cognizable offence and triable by Magistrate First Class

This offence is compoundable by The husband or wife of the person so marrying, with the permission of the Court .

1. If an offence is cognizable, police has the authority to arrest the accused without a warrant and to start an investigation with or without the permission of a court. Otherwise police does not have the authority to arrest the accused without a warrant and an investigation cannot be initiated without a court order.

2. If an offience is bailable, police has the authority to release the accused on bail on getting the defined surety amount along with a duly filled bail bond at the concerned police station. Otherwise arrested person has to apply for bail before a magistrate or court

3. If an offence is compoundable, a compromise can be done between the accused and the victim, and a trial can be avoided. Otherwise, No compromise is allowed between the accused and the victim except under certain situations, where the High Court or the Supreme Court have the authority for quashing a matter.

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Categories: Indian LawTags: , , , , ,

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