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janu (IT)     21 August 2013

Should i do second marriage without divorce first one

Im 28 yrs girl and my lover have 33 yrs, Im in love with my lover from past 7yrs. We wanted to marry with parents permission. So we waited for 3yrs, but they did not agrred, not ready to do marriage and they fixed his marriage with someother girl. if it is not happned his mother wants to die. she joined in hospital nd took his promise. then the guy got married 10days back with his mother choice, But he is not happy with that marriage, he said that he cant leave without me. now he is ready to marry me. he dont want to leave with his wife. should i marry that guy without giving divorce to his wife or what should we do to marry. even i cant leave without him.



Learning

 17 Replies


(Guest)
If he marry with you without getting divorce from first one, you both can live together but behind the bars.

janu (IT)     21 August 2013

 That 1st marriage was not registered yet. actually we married 1 yr  back at balaji temple. but we did nt registered at the time. we have photo proofs. Please give me any suggestions


(Guest)

You never mentioned about your marriage in your first post. What i can undersatnd from your posts that

1. Last year U & your lover got married in balaji temple & marriage not registered,

2. Your lover again got married to another girl 10 days back that is also not registered

3. You & your lover want to marry again

If its true, if last year U & your lover got married in balaji temple as per hindu rituals & u have photographs & other witnesses, his second marriage is void

janu (IT)     21 August 2013

we married last year, but at the time we did not registered our marriage. we did not tell this in our homes. we have only photo proofs. 


(Guest)

Pls read below You will get  the answer

Sec.494 of IPC says:

 

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either descriptttion for a term which may extend to seven years, and shall also be liable to fine.

 

Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

 

Exception is understandable in that if a person whose marriage with such husband or wife means the husband and wife of first marriage is declared void by a competent, this section is not applicable to such person.  Second exception is, if a person contracts a marriage during life of a former husband or wife, who at the time of marriage is continually absent from such person for a period of seven years or not even heard of being alive, and provided person contracting subsequent marriage should not hide about fact relating to earlier marriage with the person he/she is marrying in subsequent marriage.

 

To that extent law is very clear.  However, the problem is relating to interpretation of the main section viz.,

 

 

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either descriptttion for a term which may extend to seven years, and shall also be liable to fine.

 

 

Here, interestingly, the HC in the above quoted judgment had acquitted the offender based on a finding that, the marriage between Accused and Complainant has not been divorced and hence, during the subsistence of their marriage if the Accused marries the co-accused, such marriage itself is void in the eyes of law because the marriage took place during the subsistence of marital relationship with earlier spouse, and hence the accused has not married the co-accused at all, and for this reason he is not liable under Sec.494 of IPC. The HC relied on similar judgments of Calcutta HC and AP HC.

 

 

In Satyanarayana v. State of A.P. (1962 Mad LJ Cri 138) : (1962) 27 Cri LJ 644 where the learned Judge has observed that :-

 

 

"This object of the person committing bigamy and which is sought to be defeated by S. 494, Penal Code, by declaring it an offence, is not achieved if the second marriage is one which is no marriage at all in the eye of law, or which is otherwise void, in which case it cannot be said that there was a valid marriage, and the meaning of the word 'marries' in S. 494 of the Penal Code is not satisfied. There may be many instances where a second marriage may be no marriage at all and in which case there could be no question of bigamy, as, for example, where the parties are so closely related that a marriage between them is void according to their personal laws, or where the person sought to be taken in second marriage is himself or herself not eligible to be taken in marriage; and there may be many other instances, and it is unnecessary to notice all of them in this connection, I am inclined to agree with Mr. Rama Rao when he contends that the second marriage should be something which could be regarded as a marriage in the sense in which marriages are understood and if it is no marriage at all and if it cannot have any validity in law, apart from the fact that by reason of its being a bigamous marriage it would be declared void it cannot be said that the offence of bigamy had been committed."

 

 

Here what is interesting to note is that in Sec.494, the word bigamy is not mentioned at all.  It only says, Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either descriptttion for a term which may extend to seven years, and shall also be liable to fine......   which means that anyone having a husband or wife living marries in any case in which such marriage is void by reason of taking place during the life of such husband or wife, shall be punished....here the fact that a subsequent marriage is void by virtue of already having a wife or husband is not an impediment to punish the offender. It only says, such marriage is void by reason of a person already having a spouse, it does not say – as the marriage is void because of the reason of a spouse already existing such marriage is not considered marriage at all hence bigamy has not been committed and hence the accused can be acquitted.

 

 

The fact that any marriage being void for any reason is not an impediment to punish the offender according to the main section. Whether a marriage is valid or not, is a point to be considered if it is a section relating to “bigamy”.  That is, the section is presumed to punish those people involved in “bigamy” and “bigamy” means one who has two wives or two husbands.  And so if one has second husband or second wife, the requirement of law is that the marriage with second husband or second wife must not be void and valid in the eyes of law. 

 

 

This is entirely true, if Sec.494 is a bigamy law, but the fact is Sec.494 is not a law of bigamy, it has nothing to do with whether a marriage is valid or not or void or not.  In fact the section itself says clearly, “marries in any case in which such marriage is void by reason of its taking place during life of such husband or wife”…..which means that the section itself recognizes such marriage as a void marriage but the fact that it is void marriage is not a bar to avoid punishment to the offender.  If it is wrongly presumed as a bigamy law, then a judge comes to the conclusion that a certain marriage is not valid marriage or it is a void marriage hence the second marriage is deemed to have not taken place, for that reason, Sec.494 is not applicable.  However, nowhere in Sec.494 it is mentioned that it is a bigamy law. 

 

 

If a marriage being a void marriage does not preclude liability on the accused, then other reasons adduced for a marriage being void also does not preclude liability on the accused.

 

 

 

This also means that law accords sanction to Court to punish the accused while simultaneously declaring that the accused is participating in a void marriage and the fact that is is a void marriage is not a bar to punish him.  Hence the fact of solemnization of subsequent marriage and the relevance of evidence relating to solemnization of subsequent marriage becomes irrelevant because the law does not demand that it be a valid marriage in order that the offender be  punished.  Law itself says, it is void marriage even then, the accused is punishable.

 

1 Like

(Guest)

Jail jaane ka prabhand kiya hua lagta he.


(Guest)

A very critical situation of your case:

 

1. If you are married with him according to HMA sec-5 then still you are his wife.

 

2. His second wife is illegal and marriage is void.

 

3. If you will shout for his remarriage then he will come u/s 494 IPC of bigamy, imprisonment of 7 years along with fine for him.

 

4. If you will not shout then he can live with you with his own will but again sec 420 ,375,376,DVA 2005 will be there for him by his second wife which is even more dangerous.

 

Remedies:

 

1. Either you can both continue living as LIv-In and have faith on both of them.

 

2. Ask your husband to talk to her regarding annulment of marriage by keeping her in confidence and revealing the truth(but it can be risky too)

.If she doesn't agree for void and annuled marriage then better tell him to go for mutual settlement by giving her alimony and proceed for MCD.

 

3. If his second wife not agreed for the above.Then only 1 thing he can do ,he can revolt for his freedom and go for desertion and live with you. Whatever situataion arises just face along with each other by holding each others hand.Stick to the truth then as what happened and how it happened. And he had become the pray of forced marriage due to sucidal threats of her mother.

 

Now,you think in what way you want to go......

 

regards,

A sufferer....

ragz hyder (PM)     22 August 2013

Either through his second wife or through you he can be sent to jail. Bigamy is criminal. No implication to you though. You can marry him and all....baad mein usko bhugatna padega...

Sudhir Kumar, Advocate (Advocate)     22 August 2013

if you have proof of marraige file criminal case of bigamy and get him behind the bars. People like you should care too hoots if his mother dies of heart attack.

 

Please spell out of any more facts are still to be disclosed.

 

half facts lead to wrong advise.

498A__misused (Sec)     23 August 2013

Its bad situation , but if you both trust each other 100% then here is the solution.

 

Dont tell anyone that you are married to him year back in balaji temple just  destroy those photograps immediately.

You both can go for live in .  means no marriage so no bigamy.

 

Now once his first wife started asking question that why he is not staying away , tell that he is not happy with her. and just want to live alone peacefully.

She will file false 498a or DV or 506 ...fight it and he can prove that you are innocent...if his wife agree for MCD go for it..

janu (IT)     23 August 2013

Thanks for the suggestion, 

but how can we live like that. His parents will not allow us to live like that. That girl also not ready to give divorce

498A__misused (Sec)     23 August 2013

See this is a legal issue and this is best i can tell you.

Else you both have to quit your relationship and pray for good life of each other.

LegalExpert (Lawyer)     24 August 2013

@janu It will be better to have a live in relation if u dont want to leave him or ask him to change his religion to Muslim to b 2nd wife of him

Sudhir Kumar, Advocate (Advocate)     24 August 2013

after few years of above advised experiments in any case both of you have to desert each other so why not to live peacefully now.


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