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Suraj Kumar (Manager)     14 June 2020

Bigamy

Sir, My brother's wife leave him on 2012 and living together with another men.My brother file divorce case which is pending. He requested his wife to come back through letters but his wife did not return.As his wife did not come back, he is secretly marrying another women ( who was minor during marriage) and living with her. My brother's previous wife file 494, 498A on 2017 and take all her belongings from my home in presence of police. Sir, Can my brother go to high court to 1) quash 494 as it is barred by limitation ?2) 2) quash 494 IPC since his second marriage is void as per HMA( because of marrying with minor). ? 3) to expedite divorce as couple is separate ed more eight years ? 4) appeal one time alimony to resolve the divorce case. 5) to dismiss third 125 IPC petition as her first and second petitions are dismissed for non prosecution?


 4 Replies

RAJIV MODGILL   14 June 2020

I got your number from online
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P. Venu (Advocate)     14 June 2020

Facts posted suggest that you are on the wrong side of law. He should not have rushed for the second marriage. All that could be suggested is that it is for the complainant to adduce evidence.

SHIRISH PAWAR, 7738990900 (Advocate)     15 June 2020

Hello,

Your brother should have proceeded with divorce appliaction filed in 2012. Instead he has committed offence of second marriage. So try to resolve with amicable discussion and one time settlement with his wife otherwise he will have to pay the price. He cannot take benefi of his own wrong.

Saguna   18 September 2020

Hi

You first need to understand what does Sec.494 speaks of in Law: As per Sec.494, whoever marries during the lifetime of husband or wife, such marriage is void by reason of it taking place during the life of such husband or wife. It is a punishable offence, (though bailable) and the punishment could be a jail sentence, anywhere between 1-7 years and this offence is liable to fine also. The court can grant both at the same time as well.

Although there are a few exceptions to this section. as you have stated that your brother and his wife are not living together since 8 years now, this can fall in his favour. As the Section says that if at the time of the subsequent marriage, the other spouse is absent for a continuous period of seven years or more, then the second marriage will not be considered as Bigamy.  

Also to address your other queries, there are a few things regarding this section which you need to know.

1.This offence is compoundable with the consent of the wife and permission of the court. Means if your Brother's wife take backs her complaint and agrees to drop the charges against your brother, and if the court also has no objection regarding the same- then automatically this charge will be quashed off against your brother. 

2. But remember that there is no limitation period for taking cognizance of the offence of bigamy. It means that it does not matter how long ago the second marriage was contracted, the criminal process can still be started at the complaint of anybody- be it your brother's wife, her first blood family like mother, father, brother, sister or even the extended family members can also take your brother to the court (with the leave of the court, of course)

3..But to prove the offence of Bigamy, the prosecution must proof that the second marriage is valid. Now marriage of a person with a girl whose age is below 18 is voidable. It will subsist until it is annulled by a court under the Prohibition of Child Marriage Act. Speaking in a strict sense, such marriage is not a “valid marriage” The male who marries a female falling within the provision of Section 12 of the Hindu Marriage Act is not a husband of the minor in the legal sense.  Although you have not clearly mentioned that the second wife of your brother was minor when he was living with her or she was minor at the time of the marriage. 

What I suggest is that you should take guidance from a good Divorce Lawyer, who can help you out with the other legal provisions also. You need to be a little more explanatory with minute details of the case. A good legal aid is what is required at this point of time to help your brother.

Hope my inputs and suggestion will benefit you.

Regards

Saguna Patheja      


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