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Jasrandhir Singh   06 April 2021

Is second marriage is valid if first wife went missing

My father got married with his first wife in 1980. After a month she went to meet her family and didn't return back to my father. After some days, My father went to his in laws and they told him that she was here then she returned back to my father. She didn't return back to my father nor to her own family. My father didn't lodged any FIR because his father in law filed FIR in their own local police station.

After 7 years. In 1987, my father got married to my mother. As per hindu marriage act, a man can remarry if his wife is absent or not heard from 7 years. So now come to the problem. My father was govt employee and he nominated her (1982) in service record and he didn't updated my mother name so as he didn't update our current address. After 8 years my father also went missing. He was mentally not stable so his wife was also mentally upset. My mother filed FIR in 1996 and police submitted their non traceable report to his dept.

But they removed him from services by filling charge sheet against him due to absence on duty. We challenged their order in the Tribunal. But now the problem is that service book record is saying that his first wife is nominee in the service record. We dont have records of his first wife or his first marriage or the copy of FIR which her father lodged in their city.

Now how do my mother going to prove her legal wedded wife and also how we will prove that second marriage was not illegal as per hindu marriage act.



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 3 Replies

SHIRISH PAWAR, 7738990900 (Advocate)     06 April 2021

Hello,

The second marriage during the subsistence of the first marriage is not valid. Your father should have taken divorce on the ground of desertion because it is not the case that his first wife was dead. You may try to trace out the FIR from their local police station and consult with some local advocate who may find out some solution for the same.

 

kavksatyanarayana (subregistrar/supdt.(retired))     06 April 2021

Yes.  Agreed with the above learned expert advice.

Jaspreet Randhir Kaur   06 April 2021

Hello Sir,

I got this message from a lawyer.

When the former husband or wife has been continually absent for a period of over seven years and not heard of as being alive, provided that these facts are disclosed to the person with whom the second marriage is contracted: The second circumstance envisages a situation wherein a person has been missing continuously for a period of over seven years. Under S 108 of the Indian Evidence Act, 1872 when it is proved that a man has not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, there is a presumption that he is dead. The burden of proving that he is alive is on the person wanting to establish the same. The second exception to S 494 is in recognition of this principle. By virtue of presumption provided under S 108 of the Evidence Act, it may be safely concluded that a person who is missing for more than seven years, is presumed to be dead and when the other spouse contracts a second marriage, it follows that there is no husband or wife living at the time of the second marriage and hence, the offence of bigamy is not made out.


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