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Ash (naa)     25 September 2012

Sister married to someone already married

Hi All,

Need a legal advice as we dont know what to do now.

My sister got married to a guy some 8-9 yrs ago.The marriage was not on legal papers and it was small affair in presence of some family members.Later we found that he was already married and have kids with his first wife.At that time we all came to a solution that he'll divorce his first wife as soon as possible but he didn't and after some time he got away and never returned.He deserted my sister a long ago and its been 7 yrs now.Initially my sister was not ready to get married again but now she wants to settle down with someone.

We found one good guy (divorced) who is ready to marry my sister but he wants some legal documents(some kind of divorce papers) from us.

What we've found that, in this case, the marriage can be declared null and void (annulment).

We went to a lawyer & he gave us some options.Please read below

1)Shortest and easiest:-  
       To Call my sister's first husband and get a mutual divorce which will take around 6 months.We tried calling on his old number, he picked it up but never said anything and now his mobile is switched off from then.We dont have any other number.

2)Lodge FIR/Complaint against him:-

Lawyer said it may take 1-2 yrs in this option but we don't want get stuck in legal battle for 1-2yrs.My father and even my sister are not ready for this.

3)Send summon notice at his address and print the same in newspapers

In this we don't know how would he react if he came to know about it and again it may take 1-2 yrs if he defends himself or contest against us.Moreover we've his old address and he doesnt live there anymore.

Is there any possibilty to get divorce or Null n Void papers/documents without reaching my sister's first husband??

There must be some way to get legal papers without him.

Need legal advice from you before we hire a good lawyer for legal stuff as we dont know what our next step should be.




 6 Replies

P.Bashista (Advocate)     25 September 2012

File a divorce petition on the ground of dessertation. As you are saying that he is not responding, there is a high probability that he will also not respond to the summons of court. In that case you will get an ex-parte decree. Your sister can then easily get married. 

rahul (director)     25 September 2012

how can court pass ex-parte order without service of summons?

when the summon reach his old address, then it will considered un-served.

then judge will ask for any current address, when you can not able to give current address to court.. then court will order for news paper publication.


V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152)     25 September 2012

We found one good guy (divorced) who is ready to marry my sister but he wants some legal documents(some kind of divorce papers) from us.

Good that u  found good guy to marry ur sister. : 

u can  get it but not so easily. 

1 Like

P.Bashista (Advocate)     25 September 2012


With all due respect I would like to give emphasis on the procedure followed by the Court in the cases of dissertation where one of the spouse leaves the other one and then is not traceble.

Tajobsindia (Senior Partner )     26 September 2012

Based on the facts before us the second marriage in the lifetime of the first wife is void under S. 5/11 HMA


S. 5 HMA lays down as;


". - A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely:


(i) neither party has a spouse living at the time of the marriage.”


S. 11 HMA further provides as;


"Any marriage solemnised after the commencement of this Act shall be void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses XXX of Section 5."


This section clearly lays down that if the marriage is not performed in accordance with the provisions of S. 5 (i) HMA, which is your sisters case it would be null and void and either party to such marriage may also get a declaration by a decree of nullity from a court of law.


See, it, however, could not be the intention of the legislature that such a marriage would be valid till it was declared a nullity by the Court. For a marriage which was void ab initio no such declaration was at all necessary. If the intention of the legislature had been to the contrary, specific provisions must have been made in the Act. But the Section referred to above is perfectly silent on that point. So, it is clear that the marriage which had been performed in contravention of the condition mentioned in Clause (i) of S. 5 HMA would be null and void.


A marriage which contravenes the conditions referred to in S. 11 HMA is in law no marriage at all being void ipso jure and it is open to the parties even without recourse to the court to treat it as a nullity. Neither party is under any obligation to seek a declaration of nullity under this section though such a declaration may be asked for the purpose of precaution or record.


There is a huge difference in a particular word that you use in your facts "annulment" to rest of the facts and what whosoever guided and is guiding you above which I can clearly read I differ in totality to all of them and let me explain to you now how to go about it once above provision of Law is clear to the family supporting with my below detailed reasoning;


A marriage which is void ab initio does not alter or affect the status of the parties nor does it create between them any rights and obligations which must normally arise from a valid marriage except such rights as are expressly recognised by the Act. There is a distinction between Section 11 and Section 12 which speaks of voidable marriages as distinguished from void marriages. A voidable marriage remains valid and binding and continues to subsist for all purposes unless a decree is passed by the Court annulling the same on any of the grounds mentioned in Section 12. These distinctions in the effect of void and voidable marriages are well settled by various Hon'ble High Courts as well as by Hon'ble SC.

The distinction is further indicated by Section 17 which makes the parties to void marriage criminally liable, while there is no such penalty for the parties to a voidable marriage. Of course, both Section 11 and Section 12 speak of a decree of nullity; but Section 11 speaks of only declaration of the marriage as null and void by such a decree, while Section 12 speaks of the annulment of a voidable marriage by a decree.

As your sisters void marriage is non-existent in the eye of law, only a declaration of the marriage as null and void is sufficient.

Whereas in case of voidable marriage an annulment is necessary because such a marriage shall be deemed to be valid until it is annulled by a decree of nullity. The effect of a decree of nullity in case of a void marriage or annulment of a voidable marriage, is to render the marriage null and void from its inception for all intents and purposes.


So all at this stage your side is to do to provide some sort of court record to second man since he is asking is to go for "declaratory suit for declaration of the marriage as null and void " in a Civil Court. Use first man's last known address and get the marriage declared as null and void whether it takes 1 month or 1 year it will be always be in her favor. For the same her second man has to wait bze he is taking precaution and wants to see some sort of court record before re-marrying with your sister whereas laws clearly says not required but except for purpose of precaution and record.

Also you need not have to worry what first man is going to do once he comes to know about it, ask then to him why he was all these times trout fishing in The
Himalayan waters!


Amit (NA)     26 September 2012

 as you mentioned the marriage is void ab initio but the burden of proving so is upto the woman.

She may not have enough proof of her husband's prior marriage. In that case what will happen?

Can she file on basis of both annullment and desertion?

And if she has proof of the first marriage, can she file bigamy case even after 7yrs? Is there any time limitation for this?

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