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Re: 2nd marriage done by a woman without judicial separation

(Querist) 18 April 2024 This query is : Resolved 

One of my client is a married lady who has filed 498a case on her husband in Police station. After getting anticipatory bail by her husband and family members in court the case is at trial stage. She did 2nd marriage during covid lockdown period and she completed all the formalities of marriage during lock down period and after marriage she delivered baby. Her Husband came to know about her 2nd marriage and got details of her marriage through RTI which includes her marriage application filed by her father, wedding card, permission for marriage, list of family members who attended the marriage ceremony.

Now her husband is planning to file for 494 bigamy case in court against her and her husband. My query is whether she will get scot free from bigamy case? because normally I see that courts don't punish women who has child and is living in bigamous relationship with her 2nd husband as Indian laws are more inclined towards females.

I advised her to withdraw 498a case from the court and do settlement with her 1st husband.

Kindly advise
kavksatyanarayana (Expert) 18 April 2024
Doing a second marriage without dissolving the first marriage is not valid in the eyes of law and any baby born out of the said wedlock will be considered to be an illegitimate child.
T. Kalaiselvan, Advocate (Expert) 18 April 2024
It is certainly an act of bigamy and an offence under section 494 IPC.
Since she has filed false criminal complaint against her previous husband, let him not withdraw his complaint until she cooperates with him for getting the criminal case dismissed filed against him.
The law is common to all in this regard, she cannot be let free if the offence against her is proved and she can be sentenced to 7 years of imprisonment for this offence
Her Husband got the details through RTI, which means the marriage is performed as a Civil Marriage before a Registrar. The procedure for Civil Marriage starts with an application, wherein inter-alia the parties to it have to declare their present marital status and details of the previous marriage and its present status, etc. The applicants(at least one) lied about their marital status. Otherwise, the Registrar would not have allowed the Civil Marriage to be performed.

If the opposite Lawyer ie. The Defense Lawyer delves further into the matter specifically into the timeline of these events mentioned in your query, there is a possibility for quite obvious conclusions arrived at detrimental to the case you are representing that can be established and can be better utilized for his client's defense, besides the Second Marriage (bigamous relationship) based on false declaration before a Government Official.

You have given the correct guidance/suggestion to your Client to go for a Settlement. It is for the other party ie. Husband to accept or further pursue the case to its logical end.
Sudhir Kumar, Advocate (Expert) 20 April 2024
It is a crime.
SAM (Querist) 24 April 2024
Dear Sir,

I have told my client (who is a wife) several times to opt for settlement. Now the husband is asking for 15 lakhs amount for withdrawing bigamy case and 15 lakhs amount for mutual consent divorce. I suggested her to go for settlement and pay damages to her husband instead of going in jail. But she is rigid and not ready for settlement with her husband. What to do?? I know that the case which I have taken dont have any merits and not in my favour.
T. Kalaiselvan, Advocate (Expert) 24 April 2024
You can't do anything about it if your client is not listening to your advice nor is cooperating with you.
You have options to continue the case as it is or to discontinue your appearance by expressing your inability to handle the case anymore.
Shri T.Kalaiselvan has given you to specific options. The choice is yours, Mr. Sam
P. Venu (Expert) 26 April 2024
Any lawyer, as a professional, is required to protect the rights of the client, not his or her wrong doing.

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