In India, marriage is a sacrament in secular as well as religious laws except in Muslim personal law, governed by various laws that ensure the sanctity and exclusivity of the marital bond. The question of whether one can enter into a second marriage without legally dissolving the first one is not merely a matter of personal choice but a significant legal issue with serious consequences. Indian law except Muslim personal law unequivocally prohibits second marriages without the dissolution of the first, and any violation of this principle is considered a criminal offense.
The Legal Prohibition Against Bigamy
Under Indian law, bigamy, or the act of marrying someone while still legally married to another person, is strictly prohibited. The Hindu Marriage Act, 1955, which governs Hindus, Buddhists, Jains, and Sikhs, explicitly states that a marriage is valid only if neither party has a living spouse at the time of the marriage. This condition is critical, and any marriage solemnized in violation of it is considered null and void.
Section 17 of the Hindu Marriage Act directly addresses bigamy, stating that any Hindu who marries again during the lifetime of their spouse, without obtaining a legal divorce, commits bigamy. The offense is punishable under Section 82 (1) & (2) of the Bhartiya Nyaya Sanhita, 2023, with imprisonment of up to seven years and a fine. The law is clear that entering into a second marriage without ending the first through a legal divorce is both illegal and punishable.
The Special Marriage Act, 1954, which applies to inter-religious marriages and those opting for a civil marriage, similarly mandates that neither party should have a living spouse at the time of the marriage. A violation of this provision also renders the second marriage void and exposes the offending party to criminal prosecution under the Bhartiya Nyaya Sanhita.
For Christians if the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force, it becomes a ground for Annulment/ Nullity of the marriage as per Section 19 (4) of The Divorce Act, 1869.
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Consequences of Entering a Second Marriage Without Divorce
The consequences of bigamy in India are severe and multifaceted. Legally, the second marriage is considered null and void from the outset, meaning it has no legal standing. This was affirmed by the Supreme Court of India in the case of Lily Thomas v. Union of India (2000) 6 SCC 224, where the Court held that a second marriage without the dissolution of the first is void ab initio (from the beginning). As a result, the parties involved do not acquire any marital rights or obligations that typically arise from a valid marriage, such as inheritance rights, the right to claim maintenance, or any legal recognition of the marital relationship.
Beyond the nullity of the second marriage, the individual who commits bigamy faces criminal charges under Section 82 (1) of the Bhartiya Nyaya Sanhita. The punishment for bigamy can be as severe as seven years in prison, along with a fine. If the offending party has concealed the existence of their first marriage from the second spouse, the punishment can be even more severe under Section 82 (2), reflecting the gravity of deceit involved.
Moreover, civil liabilities also arise from such an act. The first spouse, upon discovering the second marriage, can file for maintenance under Section 144 of the Bhartiya Nagarik Suraksha Sanhita, 2023, or under the relevant personal laws. The courts have consistently upheld the rights of the first spouse in such cases, ensuring that they are not left without support due to the actions of the other party.
In Sarla Mudgal v. Union of India (1995) 3 SCC 635, the Supreme Court dealt with the issue of a Hindu man converting to Islam to marry a second time without divorcing his first wife. The Court held that such a conversion does not dissolve the first marriage, and the man would still be guilty of bigamy under Section 494 of the IPC (now Section 82 of BNS). This case set a significant precedent, underscoring that legal obligations cannot be circumvented through religious conversion or other means.
Impact on Children Born from a Void Marriage
One of the most complex and sensitive issues in cases of bigamy is the status of children born from void marriage. Under Indian law, particularly Section 16 of the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, children born from a void or voidable marriage are considered legitimate. However, this legitimacy does not extend to inheritance rights from the father’s ancestral property, although they may have a claim on the self-acquired property of the parents.
The Supreme Court, in Tulsa v. Durghatiya (2008) 4 SCC 520, upheld the legitimacy of children born from void marriages, emphasizing that the law seeks to protect the rights of such children to prevent them from being stigmatized due to their parents’ actions. The Court ruled that these children have the right to inherit the self-acquired property of their parents, though their rights to ancestral property are limited.
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Social and Ethical Implications
Beyond the legal consequences, the social and ethical implications of entering into a second marriage without dissolving the first are profound. Marriage in India is traditionally viewed as a lifelong commitment based on trust, mutual respect, and legal recognition. Breaching this commitment through bigamy not only violates the law but also undermines the social fabric, leading to a loss of reputation, familial discord, and social ostracism.
The ethical considerations surrounding bigamy are equally significant. Marriage is a bond that is meant to be honored and respected. Engaging in a second marriage without the consent of the first spouse or without legally dissolving the first marriage is a betrayal of the trust that forms the foundation of the marital relationship. It is an act that is seen as morally reprehensible and legally indefensible.
Judicial Stance and Evolving Perspectives
Indian courts have consistently adopted a strict stance against bigamy, reflecting the need to uphold the sanctity of marriage and protect the rights of individuals, particularly women, who are often the victims in such cases. The judiciary has also increasingly recognized the need to protect the rights of women and children in cases of bigamy, ensuring that they have access to maintenance and that children born from void marriages are not deprived of their rights.
The Supreme Court’s rulings in cases like Sarla Mudgal v. Union of India and Lily Thomas v. Union of India have reinforced the importance of obtaining a legal divorce before entering into a new marriage. These judgments have set a strong precedent, making it clear that the law will not tolerate bigamy and that individuals who attempt to bypass the legal process will be held accountable.
Conclusion
In conclusion, Indian law is unequivocal in its stance on second marriages without divorce: such marriages are illegal, void, and punishable under the law. The legal framework, including the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and The Bhartiya Nyaya Sanhita, 2023, collectively prohibits bigamy and imposes severe consequences on those who engage in it.
The courts have consistently upheld these laws, emphasizing the sanctity of marriage and the need for legal compliance before entering into a new marital relationship. The social, legal, and ethical implications of bigamy are significant, affecting not only the individuals involved but also their families and society at large.
As legal professionals, it is essential to counsel clients on the legal requirements and consequences of second marriages, ensuring that they fully understand the importance of obtaining a legal divorce before remarrying. The law is clear: marriage is a binding contract that must be honored, and any attempt to circumvent it through a second marriage without divorce is both illegal and punishable. Even when the divorce proceedings are underway, one cannot marry another person.
