In India, marriage is not only a sacred bond but also a legal contract governed by personal laws and statutory provisions. While second marriages do occur, doing so without obtaining a legal divorce from the first spouse is considered illegal in most cases and can have serious legal consequences.
This article explains the legal position on second marriages without divorce in India, along with related penalties and exceptions.
Is Second Marriage Without Divorce Valid in India?
No, under most Indian personal laws, a second marriage without legally dissolving the first is invalid. It is treated as bigamy, a punishable criminal offense under Indian law.
Applicable Laws:
- Section 494 of the Indian Penal Code (IPC), 1860: Punishes bigamy with up to 7 years’ imprisonment and a fine.
- Hindu Marriage Act, 1955 (Section 5 & 11): A second marriage while the first is still valid is void.
- Special Marriage Act, 1954: Also prohibits multiple subsisting marriages.
- Christian Marriage Act, Parsi Act: Similarly do not permit second marriages during the lifetime of a lawful spouse.
What Is Bigamy?
Bigamy is when a person marries another individual while already being legally married and without obtaining a divorce from the existing spouse.
For example:
If A, who is still legally married to B, marries C without divorcing B, then A commits bigamy.
Legal Consequences of Second Marriage Without Divorce
- Criminal Prosecution
The aggrieved spouse (first wife/husband) can file a criminal complaint under Section 494 IPC. - Second Marriage is Void
As per Section 11 of the Hindu Marriage Act, the second marriage has no legal standing and is considered null and void from the beginning. - Denial of Rights to Second Spouse
The second partner will not be entitled to:- Legal spousal rights
- Inheritance rights
- Maintenance (except in some exceptional cases)
- Impact on Children from Second Marriage
Children from such marriages are considered legitimate under Section 16 of the Hindu Marriage Act, but legal complications regarding succession may arise.
Are There Any Exceptions?
Yes, in limited cases:
- Muslim Personal Law (for men): A Muslim man can marry up to four wives without divorcing, provided conditions under Muslim law are met. However, if the marriage is registered under the Special Marriage Act, monogamy is mandatory.
- Presumption of Death: If a spouse is not heard from for seven years, the other may remarry under Section 108 of the Indian Evidence Act, after obtaining a declaration from the court.
- Customary Law Exception: Certain tribal or customary practices may allow second marriages, but these are narrowly applied and must be proven in court.
How to Legally Enter a Second Marriage?
To remarry legally:
- File for Divorce: Initiate legal proceedings and obtain a divorce decree from a competent court.
- Wait for Appeal Period: Usually 90 days, during which the decision can be contested.
- Ensure Finality: Only after this period (or disposal of appeal) can one lawfully remarry.
Conclusion
Entering into a second marriage without securing a divorce from the first spouse is a serious legal violation in India, carrying both criminal and civil consequences. It is essential to follow due legal procedure before remarriage to avoid complications and uphold the sanctity of personal rights.
If you are contemplating a second marriage or facing issues related to bigamy, it is strongly advised to consult a qualified family lawyer to understand your rights and responsibilities under the law.
