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Anjana (lawyer)     08 March 2013

Obtained fraudelent exparte divorce and done second marraige

 The person obtained fraudelent exparte divorce and done second marraige.Is the person is punishable under Bigamy?

Facts of the case

 

1) The husband done marraige to first wife and without notice of her by misleadeing the court and wife took exparte divorce on false allegations that non consumation of grounds that wife is not willing for consuamtion of marraige.Later due to his neglegence and harrasent wife file 498a  and omestic violence.Even though the husband did not revelaed to wife and police or any of his affidivats. That prior of these cases only he obtained exparte divorce decree . Later wife it self came to know by some other sources and filed the petition to set a side and condone delay after 8 months from the date of exparte divorce . By hearing the facts of case the family court and High cout declared that husband played fraud upon the court and took exparte divorce and cancelled the divorce and now the main O.P of divorce is running.

2) Now while the main O.P is running the wife came to know the husband has done second marraige and had two years kid

The questions are

1) We understood the person took fraudelent exparte divorce and without discloseing he waited till appel period and done second marriage. Now is first wife can file bigamy case on him? Because on first wife he took fraudlent exparte decree and this was proved by highcourt.

2)what all are the sections applicable to file the case?

3) Is to prove the second marraige is done the oofical docuemtn of voter card is enough where the second wife mentiond that this person as husband?

 



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 19 Replies

Adv. Chandrasekhar (Advocate)     08 March 2013

1) We understood the person took fraudelent exparte divorce and without discloseing he waited till appel period and done second marriage. Now is first wife can file bigamy case on him? Because on first wife he took fraudlent exparte decree and this was proved by highcourt.

 

Yes. First wife can file bigamy case.

2)what all are the sections applicable to file the case?

 

Section 494 IPC

3) Is to prove the second marraige is done the oofical docuemtn of voter card is enough where the second wife mentiond that this person as husband?

 

Voter card and the DNA test of the child are sufficient proof to prove the extra-marital relationship.  But to prove the marriage, some more substantial proof is required, as the case is criminal case and the quality of proof required is beyond reasonable doubt.  So, witnesses (relatives) present at the time of marriage, priest, if possible photographs, videos, marriage card and relevant material to prove the solemnization of the marriage are required to prove the case beyond reasonable doubt.

 


 

stanley (Freedom)     08 March 2013

DNA test of child /Marriage certificate of their second marriage  /Voter card/Marriage card /Birth certificate of the child where in fathers name and mothers name would be mentioned /Neighbours staying around them and called to testify as witness as they may have conveyed that they are a married couple  !!

Anjana (lawyer)     08 March 2013

Mr Chandu/Stanley

 

Thanks for the reply.

Beyond this proof it is very difficult to get the othe proofs like photographs and no one will give evidence that they are wife and husband

But we can prove by document they are under one roof.

Coming to babys birth cerificate there is some what hope.

Kindly help me how to sort it out.

 

 

Anjana (lawyer)     16 March 2013

sir

Though we submitted the voters card and pan card of the second wife where the husbad name is metioned is that proof is valid? or we should give ceromial funations photos also?

In bigamy case can we make one of the accused person has second wife?

 

Sudhir Kumar, Advocate (Advocate)     07 June 2013

when divorce is set aside it is to be seen as nevere existed

Paras Awasthi (Businessman)     10 June 2013

@anjana

 

For legal queries like these you can get expert opinion from www.lawkonect.com

 

 

Just post your query online in very simple words and you will get a detailed response to your question by seasoned lawyers as per your requirement.

Anjana (lawyer)     14 July 2013

Hi Need justice

 

Hello the voter card and pan o the same name might be 100 nos. But the same two persons cannot stay  in same address where the address was given my husband house address.

 

Rgds

Hemasri

Anjana (lawyer)     14 July 2013

Sir

 

Without  marraige how the lady can keep my husbad name her as her husband and surname in pan card.

In  trail if lady says there is no marraige between them ,what legal action we can take in obtaing wrong identites agaist her.

Anjuru Chandra Sekhar (Advocate )     14 July 2013

As per my legal knowledge, courts would not treat it a case of bigamy if the video footage shows that by mistake they have made six rounds around homam in sapta padi instead of seven.  In other words, if they deliberately take six or five steps instead of seven steps, the marriage will be deemed to have not taken place by courts. As you are layman in law you will feel strange and think when they are living under one roof what difference does it make whether they have made five, six or seven rounds around homam.  But that is reality about law of bigamy in our country.  it is very difficult to prove it.  And very strangely what you have to prove is the fact of marriage not whether they have s*x with each other or living under same roof, in order to prove that they indulged in bigamy.  He may have s*x with another woman without marriage, that is a different issue, different crime. 

 

So let us assume case of bigamy is ruled out. Then what is the section for their crime.  It is Sec.497 Adultery. If she is staying along with him under same roof and even having s*xual relationship, it can become a case of adultery (as bigamy is ruled out take this one).  But the law of adultery does not give any remedy for a woman against another woman, it only gives a remedy to a man against another man.  If she is wife of another man then it becomes a case against your husband, however if she is not a married woman you cannot do anything against her even under adultery. 

 

I am not discouraging you, just opening your eyes to reality.

1 Like

Ajay (none)     14 July 2013

Hi Anjana,

Its difficult to get exparte divorce but if that person has got that shows that how much the wife was unconcerned about the relationship. Please don't take this anyways but the situation has now changed now. The wife was least concerned about the relationship under any influence and now when the damage has been done by time and situation, the wife is looking for justice so I would request the wife to probably forget to take revenge and ego. We have to move on in lives to make it easier for everyone. So ask the victim to move on now and let that family live happily and ask the victim to live happily. When that wife didn't need the husband for this long how come all of sudden she needs the justice? so the mistake is from both parts so please move on..

1 Like

Anjuru Chandra Sekhar (Advocate )     14 July 2013

If you are interested and have patience go through this link:

 

https://www.lawyersclubindia.com/forum/Sec-494-ipc-is-not-about-bigamy-58322.asp

Anjuru Chandra Sekhar (Advocate )     14 July 2013

My advice is to file the case under both S.494 (bigamy) and S.511 (attempt to commit a crime under IPC).  Even if you are not in a position to prove the crime to the complete satisfaction of the court with lack of prosecuting evidences, if you can at least prove that he attempted to marry, he will get half that term as punishment as he would deserve under S.494. 

 

You see our courts do not accept filing a case twice on same cause of action because of Res Judicata.  But so many people were acquitted, by courts because the fact of second marriage was not proved beyond doubt.  In the link provided the Calcutta HC acquitted one Christian man saying Christian man marrying Hindu woman does not constitute a marriage hence case of bigamy is not made out.  Why he was not punished under S.511 at least taking cognizance that at least the fact relating to attempt to marriage is proved?  First, the court does not act on its own.  Second, after the case is over, if you get the realization that he could have punished under S.511, by then it is too late it Res Judicata becomes operative by then. 

 

Helpless victims.  God save.

Anjana (lawyer)     16 July 2013

Hi Ajay

There is no mistake from wife

The husband is NRI after marraige with in 3 weeks he left away promosing wife to Newzealnd later with the suppor tof his mother and brother they tourchered the wife na dpushe out of our wife behind her back the husband obtained fraudelent divorce by playing fraud upon court.

now the person married another lady again

we hav eproofs of AADHAR CARD, PAN, BANK ACCOUNT of bigamious wife mentioning this sperson as her husband and nominee this person name introducer is the boys mother and means mother in law and they have child

We are in hope we will win baseing on this case .Pls give advices how the case can take up in logic way.Because hope you will see soon this might be land mark judgement becasue facts of case is different and situations are different

By the way the victim girl is not wasteing her life she is happy

 

NGOKC (pm)     27 July 2013

Legally the second marriage is legal, since Divorce was granted  and he married after appeal

Charges of Bigamy are invalid as marriage was performed after court had duly accorded divorce, sorry you cannot do anything

 


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