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Sameer12345 (SSE)     29 June 2012

Urgent situation, bigamy against women

 

Facts of the case:

1) Second Husband has Divorce Deed from his first marriage

2) Second Wife has also Divorce Deed from her first Marriage

3) Second Husband and Second Wife both have Registered the marriage.

4) Second Husband was under impression that He is legally divorcee.

5) Now Second Husband got to know that Divorce Deed is a not a valid document of divorce.

6) Second Wife is planning to file 498a against Second Husband and relatives of Second Husband including DV and CRPC 125.

 

Note: Second Husband here is me and Second Wife here is my non-legal wife of void marriage.

 

Questions:

 

1) Can Second Husband file Section 494 against Second Wife?  

 

2) If yes, How?

 

 

Experts please reply, Tajobindia sirji, Shoneeji and Other learned memeber, Please throw valuable light.



Learning

 13 Replies

N.K.Assumi (Advocate)     29 June 2012

Only the second hand are moving not the first hand: If the Second husband realized that his divorced deed is invalid what prompt the Second wife not to realize that her divorce deed is not valid, Or is she determined to trade for her second marriage? Now the first hand Tajobindia and shonee may kindly join as first hand.

1 Like

Sameer12345 (SSE)     29 June 2012

Originally posted by :N.K.Assumi
"


Only the second hand are moving not the first hand: If the Second husband realized that his divorced deed is invalid what prompt the Second wife not to realize that her divorce deed is not valid,

>> Yes That is true.

Or is she determined to trade for her second marriage? Now the first hand Tajobindia and shonee may kindly join as first hand.

>> Yes Above is also True.

"

ravindra (Analyst)     29 June 2012

Yes if second husband comes to know that section wife divorce deed invalid then he can file sec 494 against second wife

ravindra (Analyst)     29 June 2012

Yes if second husband comes to know that section wife divorce deed invalid then he can file sec 494 against second wife

Tajobsindia (Senior Partner )     29 June 2012

@ Author,


If the marriage took place after the coming into force of the Hindu Marriage Act 1955. S. 5 of the aforesaid Act inter alia provides that a marriage may be solemnized between two Hindus if neither party has a spouse living at the time of the marriage. S. 11 thereof lays down that any marriage solemnized after the coming into force of the Act shall be null and void and S. 17 emphasizes that any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party has a husband or wife living and applies the provisions of S. 494 and S. 495 of the Indian Penal Code. The conjoint effect of the aforesaid sections is that if a marriage is solemnized after the commencement of the Hindu Marriage Act between persons either of whom has a spouse living at the time of the marriage the marriage is void and the provisions of S. 494 and S. 495 are attracted to marriages between Hindus also.


S. 494
Indian Penal Code is in the following terms:

494. 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 descripttion for a term which may extend to seven years, and shall also be liable to fine.”


This offence, which is known in English law as "bigamy", is directed against the second marriage. The second marriage, therefore, must be a legally valid marriage so as to come within the ‘mischief’ of S. 494
I. P. C.. In order to appreciate whether the second marriage is void under the law, since the parties are admittedly Hindus, we have to refer to S. 17 of the Hindu Marriage Act, 1955, which is as follows:


17. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and provisions of S. 494 and S. 495 IPC (Act 45 of I860) shall apply accordingly.


S. 17
pointedly refers to solemnization of marriage after the commencement of the Act. The Prosecution side in instance case, therefore, is under an obligation to satisfactorily establish by evidence that the second marriage with second wife has been solemnized in accordance with law or custom which is applicable to the parties.


The essential "elements" needed to be established
to make a person punishable under S. 494 IPC, are as follows:

(1) There must be a wife living.

(2) There must be another marriage by reason of its taking place during the life of the wife.


So while S. 17 of the Hindu Marriage Act renders a second marriage of a male Hindu during the lifetime of an existing wife void, the husband marrying for the second tune is also punishable under S. 494 IPC.


Now turning my views back on instance brief, in the instant brief it has already been noticed that at the time when the second husband married to a second wife the second wife husband was alive and there is thus no escape from the conclusion that the marriage between the second husband with his second wife was void. A thing which is void has no existence in the eye of law. Since in the eye of law the relationship of husband and wife did not exist between the second husband and second wife her subsequent marriage with second husband will attract S. 494
I. P. C.


I per se contend that unless second wife obtained a decree of nullity of marriage she had no right to marry another person and she is, therefore, liable to be, convicted of the offence under S. 494, I. P. C. The point missed by the queriest is that S. 17 of the Hindu Marriage Act does not provide that S. 494 and 495, I. P. C., will not be attracted unless a declaration as to nullity of marriage is obtained by either party to the marriage (hence he stated twice about some divorce deed in his query). According to Webster's New International Dictionary Second Edition 'wife' inter alia means a woman united to a man in a lawful wedlock. Thus if the marriage between the second husband and second wife was not lawful legally she cannot be described to be wife of the second husband.


The interpretation placed on the word 'marries' as used in S. 494, I. P. C. cannot be a guide for the interpretation of the words 'husband or wife' as used in that section that in order that an offence of bigamy can be committed, there must be at the time of the second ceremony of marriage a previous valid subsisting marriage.


The effect of S. 17 of the Hindu Marriage Act is to make S. 494 of the Penal Code applicable to Hindus and that there is nothing in the Act forbidding a prosecution for an offence punishable under S. 494 of the Code not preceded by a declaration obtained under the provisions of the Act that the second marriage is void.


Thus on the proved and admitted facts no charge for an offence under S. 494,
I. P. C., could legally be framed. If an offence under S. 494, I. P. C., is made out against R1 (second wife) then her second husband could be found to be guilty of having abetted the said offence too is my view in instance facts case.


@ Ld. Sh. Assumi sahib, I hope I clarified the position as I think fit on instance brief rest a superior authority is there to state the position if any, in short – sweet – minimalist wordings J 

2 Like

Sameer12345 (SSE)     29 June 2012

Thanks a lot Respected Tajobsindia, My Query has been resolved. 

Anjuru Chandra Sekhar (Advocate )     29 June 2012

Both of you can file for S.494 of IPC against each other and punish each other via court.  Or both of you can agree to stay calm and prevent yourselves from filing cases so that you don't undergo trauma of trial and punishment. 

 

As second marriage is "void abinitio" your second wife has no locus standi to file S.498A against you.

1 Like

Sameer12345 (SSE)     29 June 2012

 

 

 

chandrasekhar.7203@ gmail.com

 

 

My Void Non-Legal Wife have taken my name and my relatives name in her private (half) complaint at NGO. She might be knowing that she is not legal wife and cannot use 498a against me and my relatives. But She is still threatening for file the same.

 

 

It is just a threat. Even if she is filing 498a, superior authority will understand the bad intension of my void non-legal wife one day in court room.

 

As you have mentioned that she doesn’t have local standi to file 498a. But There can be an objection stating I don't have void marriage declaration, it is yet to achieve from court.

 

Anyways thanks for your reply too.

 

Anjuru Chandra Sekhar (Advocate )     29 June 2012

A marriage void abinitio does not need a declaration by court.  Only a voidable marriage needs a declaration.

1 Like

Tajobsindia (Senior Partner )     29 June 2012

@ Queriest ,


Confusion………..aissa kyu aab!


A marriage which contravenes the conditions referred to in S. 11 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.


When you come to the bridge cross it using logics placed in
High Court of Mumbai in its judgment dt. 3rd May, 2010 of Re.: Mangala Bhivaji Lad vs. Dhondiba Rambhau Aher, being FAMILY COURT APPEAL NO. 117 OF 2006, where it was held as follows:


Since the institution of marriage and the very relationship of husband and wife originates from the personal law applicable to the parties, there can be no escape from reference to the personal law while understanding the expressions “husband” and “wife” used in different statutes. As far as Hindus are concerned, the law relating to marriage amongst Hindus is codified by Hindu Marriage Act and therefore unless the marriage is valid under the provisions of the Hindu Marriage Act the parties entering into such a marriage cannot describe themselves as “husband” and “wife” for the purposes of application of different statutes or for deriving the benefits available under different statutes.”


Get in PM mode with @ Amit…………….of Shantanu Prakashan from Pune, it is believed he found recently some victory in his case more or less similar to proposedly yours (in days to come)!!! Also offer 1 laddo to LCI to have colly. guided you more or less well on your query 
:P

And start drafting (means polishing) quash petition more or less one on facts and point of law similar to yours mentioned here:-

 

https://www.lawyersclubindia.com/experts/files/25_quash_drft_opinion.doc 



Happy ji !


[Off the records I think your case was more or less experiemental LIVE - IN gone sour hai ki nahi, sharmao maat bol bhi do aab]

3 Like

Sameer12345 (SSE)     02 July 2012

 

 

 

 

 

 

Tajobsindia Ji

 

Thank you very much Tajobsindia for your valuable time and giving me well drafted petition reference which is fit for my case of quashing DV.

 

LIVE - IN gone sour hai ki nahi - I was under impression that she is my wife and treated her like my wife. But since she went to her matrimonial home, Things has found changing, I came to LCI thinking to file divorce and time by time I found that she is not my legally wedded wife. Thanks to God and LCI website and LCI People. Ultimatly Second Marriage gone sour. J L

 

Again Many Many Thanks to you for providing me petition reference for quashing DV.

 

@ Amit……………. Thank you too.

Shantanu Wavhal (Worker)     15 January 2013

 

Supreme Court of India

Supreme Court of India

Deoki Panjhiyara vs Shahshi Bhushan Narayan Azad & ... on 12 December, 2012

Author: R Gogoi

Bench: P. Sathasivam, Ranjan Gogoi


Attached File : 625978803 deoki panjhiyara vs shahshi bhushan narayan azad & ... on 12 december, 2012.pdf downloaded: 129 times

Shantanu Wavhal (Worker)     15 January 2013

@ Amit……………. Thank you too.

 

 

haa haa haa haa haa haa ...


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