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Kaushik.G   25 February 2021

Second marriage status when divorce pending

I am separated for 10 years and recently filed divorce and mutual is not possible. One lady who is also separated for 1 year recently filed divorce and mutual is not possible for her either. We are planning to have social marriage and stay together. She is worried about legal status of our marriage and whether it's a crime to marry when divorce pending. She is having a son of 7 years so worried about his legal status, rights as well. What I found through online search that second wife having equal property rights like first wife and it's not a crime anymore to have social marriage when divorce is pending. Please help me by elaborating on this issue



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 4 Replies

SHIRISH PAWAR, 7738990900 (Advocate)     25 February 2021

Hello,

Second marriage during subsisting of first marriage is not valid marriage as per Hindu law. However, children born out of invalid marriages are not illegitimate children. In your case your second wife is also not divorced from her husband so her son's rights will not be recognised under hindu law if she marries you. Now adultery is no more crime. 

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Kaushik.G   25 February 2021

I know Hindu marriage act doesn't support it. But will it be void? If not, will she get property rights?

Nirali Nayak   22 June 2021

Hello sir, greetings of the day.
As per your query, if you have been separated from your wife for 10 years and your divorce case is pending, your second marriage will still be valid. The Supreme Court has observed that a second marriage will be valid even if divorce proceedings of the first marriage are pending in court, provided that both parties from the first marriage have amicably parted and have decided not to contest the decision. Although the Hindu Marriage Act states that it shall be lawful to marry again only after dismissal of an appeal filed by aggrieved party against the decree of divorce. However, the Supreme Court, clarified that second marriage will not stand void if solemnised during the pendency of appeal. While interpreting section 15 of Hindu Marriage Act, Supreme Court bench of S A Bobde and L Nageswara Rao observed that restriction placed on the second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to any case where the parties have settled and decided not to pursue the matter further. Section 5(1) of the Hindu Marriage Act places a bar on marriage by a person who has a spouse living at the time of the marriage. Section 11 makes such a marriage null and void. Section 15 tells when a divorcee can marry again.
"The Hindu Marriage Act is social welfare legislation and a beneficent legislation. Thus it has to be interpreted in a manner which advances the object of the legislation," the court held. 
Hope this solves your query.
Regards
Nirali Nayak
Law Student

Mantu Tiwari   16 February 2024

Hello nirali mam 

I want to talk to you on phone my mobile number is 8709507593

Regarding allowing process of 2nd marriage till my divorce petition of 1st marriage is pending in high court

Plz contact to me plz 


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