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Archana   05 May 2022

Remarriage without divorce under hindu marriage act

Hi,

My elder sister is a divorcee and she likes a person who is married but not living with his wife. Wife lives at her husband's house but they are separated. He does not want to divorce her because he says he does not want to ruin her life.They have two kids. My sister and that person wants to marry each other without divorcing his present wife. Is this marriage possible? I know this is illegal and section 494 and 495 implies here. But both of them dont want to back off. Is there any way to legalise their marriage? and what will be the legal stand for my family? can the present wife of that man or her children sue my sister or any member of My family?

Kindly answer my query as soon as possible.

Thanks



Learning

 3 Replies

anubhav Bhatt   05 May 2022

Without divorce it's illegal so for that point is concern firstly he will file a Divorce before court and get decree then it's possible else not possible for more clarity you may contact us then I'll elaborate properly about your case.
Advocate Anurag Bhatt
­čô▒ 9198889990

Divya Vijayan   05 May 2022

Hello!

Second marriage without divorcing the first wife is illegal and is considered an offence under different laws. 

Under section 5 of The Hindu Marriage Act talks about the conditions which are required to consider marriage as valid. The conditions in the context of second marriage are that at the time of marriage, the husband or wife of the parties should not be living or should not be alive or the first marriage had been dissolved at the time of second marriage otherwise second marriage will be considered as void under Section 11 of The Hindu Marriage Act

Under Section 17 of the Act, the punishment for bigamy is given, which states that if a person commits bigamy it will be dealt with under section 494 and 495 of the Indian Penal Code and it will be considered a criminal offence.

Under Section 494 of the Indian Penal Code states that if a person marries while his/her husband/wife is alive at the time of marriage it will consider as bigamy, which is a punishable offence. If the husband/wife thinks they can also file a complaint under Section 415 of the Indian Penal Code which talks about cheating but this section only applies when the person doesn't know that the other party is married.  

For an offence of bigamy to have been committed the following ingredients are required (i) the accused must have contracted first marriage (ii) he/she must have married again (iii) the first marriage must be subsisting (that is no divorce has taken place) (iv) the first spouse must be living, Pashaura Singh v. State of Punjab, (2010) 11 SCC 749.

 

 

Only a person aggrieved by his or her spouse contracting the second marriage can file the complaint. 

 

 

1 Like

Archana   06 May 2022

Thank you so much for the reply sir.

But that man and his wife are not ready for the divorce for their children and family although they are not living together. And that man and My sister wants to get married and live together in a separate house. So what are the ways? And can his children or his wife file a suit on us i.e. me, My mom or My other sisters anytime in future? 


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