Void marriage and mutual consent


Dear Experts,


I need certain points to be clarified on HMA. It is an interesting case.

A wife's earlier marriage not dissolved by court decree. Her husband's earlier marriage was also not dissolved by court decree. Both the marriages are void. There is no concealment on the part of the husband while marrying the wife as 2nd wife. But the wife concealed about the fact of her 1st marriage and represented that she was a legally divorcee and married the husband. Beliving her words the husband married her without seeing her records. Out of their wedlock (?), a girl child was also born and now aged 12 years.

After 10 years of cohibitation, the wife voluntarily left the abobe of husband on the ground of cruelty and filed a petition seeking divorce from her husband wherein she admitted her earlier 1st marriage, however her consent for the said marriage was obtained by force and threat and dissolved by an undertaking (not by court decree). Further she admitted that her husband's earlier marriage was also not dissolved by court decree.

The husband challenged the maintainability of this petition before High court as the marriage is void in both ends and got interim stay. She filed a counter affidavit wherein she narrated certain facts as follows:- (1) her consent for the earlier 1st marriage was obtained by force and threat; (2) The said marriage was not performed as per Hindu rites and cermonies; (3) The man whom she got married in the alleged manner, already had a wife at the time of the said marriage. Therefore it was no marriage in the eyes of law and therefore it is not necessary to get the divorce decree from him.  She further alleged that her 2nd husband is a legal advisor who gave opinion that his 1st marriage was legally dissolved as it was parted by divorce deed and made her to proceed to marry him and now turns contra and alleges that his 1st marriage is still subsisting and therefore his 2nd marriage with her is void and therefore he is an offender under section 495 of IPC. Hence her 2nd marriage is valid with the 2nd husband in accordance with HMA.

During the argument stage, the wife side advocate pressured for compromise and insisted to file 13B with an permanent alimony and maintenance to child and to have the conflicts dissolved in one way or other. Otherwise the wife side advocate threatened to file criminal case under section 495 apart from taking steps for professional misconduct. As to avoid these unpleasent happenings, the husband was also agreed to file petition under mutual consent jointly with her. However he kept her Revision petition pending with High Court till the disposal of 13-B petition. 

After waiting period of 6 months, during the 2nd motion of consent the husband paid the permenant alimony to the said wife and maintenance amount to the child as full and final settlement. Both mutually agreed for regular terms and conditions including the condition for no claims either in the properties or in future earnings of the said husband. It is pertinent to point out that earlier marriage of both parties was not pleaded in the 13B petition as to not to attract the legal bar as provided in Section 23(1)(e) of HMA.

After recording the depositions, the family court also passed the decree of divorce and the wife withdrew her cruelty petition.

Here the wife calculatedly cheated the husband. Since the wife wished to come for mutual compromise, the husband did not contest the matter further and paid the money. He did not want to take the advantage of legal position in the matter of paying maintenance. As a goodwill gesture, he consented and paid the money, subject to two conditions. (1) There shall not be any further case for any claims. (2) No rights in his property. The wife agreed to it and depositions were recorded by the judge to that effect.

Now the question is whether the said woman will come again with any other claims? 

I request the experts to kindly clarify.




Maintenance to Child is still in question.......

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the entire scenario is in question !

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The husband has paid Rs.15,00,000 towards the maintenance of the child and Rs.5,00,000 to wife.

If she files any further case for claims, what would be the suitable course of action as far as the husband is concerned?




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