There was no such bar against men, till some States passed laws for prevention of bigamous marriages, and introduce the principle of monogamy among Hindus. After 1955, with the help of the aforementioned provision and Section 11, Hindu Marriage Act, second marriages came be declared null and void ab initio. In this behalf, under the Hindu Marriage Act it is necessary is a marriage according to the customs and rites, and secondly, that the spouse of the first marriage was a legally wedded spouse and the second marriage was subsisting on the date of the second marriage.
The social stigma attached with being a second wife, the absence of any legal status to the relationship, and the enormous pain of being cheated into the marriage are undoubtedly extremely depressing for a woman. Even though there is no recognition given to a second wife, due to the judicial interpretation of existing law as discussed above, she may have some chances of getting maintenance. In the absence of any clear provisions under the law, her chances of claiming her rights are largely dependent on the discretion of the judges.
Even under the criminal law, it is extremely to prove bigamy, as the marriage has to be validly performed to prove the offence of bigamy. Usually these loop holes in the law are exploited by men to defend themselves in such cases.
Historical Prospective: Though monogamy is the rule from Vedic times, polygamy has, as an exception, existed side by side. But, the wife who was wedded first was alone the wife in the fullest sense. One text of Manu seems to indicate that there was a time when a second marriage was allowed to a man after the death of his former wife. Another set of text justifies a husband taking another wife. It was only when a wife was barren, diseased or vicious that she could be superseded and a second marriage was valid; as also when she consented.
As a norm, the first wife had precedence over the others and her first-born son over his half brothers. It is probable that originally, the subsequent wives were considered as merely a superior class of concubines. Later, in the courts of British India. it was a settled law that a Hindu male could without any restriction marry again while his previous marriage subsisted (second marriage) without his wife's consent and justification.
Custom, however, did prevent the second marriage without the consent of the first wife and without making provision for her. It was however held in Raghveer Kumar v Shanmukha Vadivar , that a custom prevalent amongst Nadars in Udumalapeta Taluk preventing a second marriage, even if established could not have the force of law
Proof of Second Marriage: The supreme court has laid down that proof of solemnization of second marriage in accordance with the essential religious rites applicable to parties is absolutely essential and a must for conviction for bigamy and that mere admission on the part of the accused that he had contacted second marriage was not enough and that such admission is not evidence for the purpose of proving marriage in an adultery or bigamy case. in customary marriage, where custom is not pleaded, living together as husband and wife would not enough. But where in the case it was proved that dola was brought, bhanwar ( saptapadi ) and kanyadan had taken place, the full vivah was read out and the marriage was performed by a purohit, the marriage must be held to have been duly solemnized.
In a Hindu marriage, where a Hindu marriage is performed according to religious rites, performance of homa and saptapadi are essential and where they are not proved to have been parformed it cannot be called a solemnised marriage under the section. To prosecution person under Section 494 I.P.C., there is nothing in the act forbidding a prosecution for offence punishable under Section 494 of penal code not preceded by declaration obtained under provisions of the act that second marriage is void. Second marriage must be legally valid marriage so as to come within mischief of Section 494. The word ' solemnize ' means in connection with a marriage, ' to celebrate the marriage with proper ceremonies and in due form', according to shorter oxford dictionary. It follows, therefore, that unless the marriage is ' celebrated or performed with proper ceremonies and due form ', it cannot be said to be solemnized '. it is therefore, essential, for the purpose of Section 17 of the act, that the marriage to which sec 494, I.P.C applies on account of the provisions of the act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom.
Husband or Wife Must be Alive: The section will not apply if the husband or wife of the first marriage is dead or if the first marriage she has been dissolved by a decree of divorce. The limit of one year imposed by Section 15 will not apply to marriage under the section, as Section 15 is confined only to the parties to that marriage. The present section will not also apply if the former marriage is void or declared void by a decree of nullity. The section declare the subsequent marriage void. It will not, therefore, affect the validity of the former marriage. Notice a that sec 494 of the Indian Penal Code exempts from punishment a second marriage bona fide contracted after seven years absence of the husband or the wife, who has not been heard of by those likely to hear from him or her, during the period. Offences under sec 494 and 495 of the Indian Penal Code are non-cognizable.
Who Can Complain: Only the person aggrieved can complain in case of bigamy. if it is the wife who is aggrieved, then her father can complain as he is the lineal ascendant of the wife.
Grant of Injunction: A petition restraining the husband/wife from marrying second time in not maintainable. But a suit for perpetual injunction by the wife restarting her Hindu husband from contracting second marriage would lie jurisdiction of civil court to entertain such suit is not excluded by Hindu marriage act. A petition for declaration that the second marriage is void can be filed by only parties to the marriage and not by first wife.
Hindu Marriage Act, 1955: With the commencement of Hindu Marriage Act, 1955 (HMA), one of the condition provided for a valid for a valid marriage was that neither party should have a spouse living at the time of the marriage. Under the old law, there was a bar against a woman marrying a second husband while her first husband is alive unless custom permitted her. There was no such bar against men, till some States passed laws for prevention of bigamous marriages, and introduce the principle of monogamy among Hindus. After 1955, with the help of the aforementioned provision and Section 11, Hindu Marriage Act, second marriages came be declared null and void ab initio. In this behalf, under the Hindu Marriage Act it is necessary is a marriage according to the customs and rites, and secondly, that the spouse of the first marriage was a legally wedded spouse and the second marriage was subsisting on the date of the second marriage. In case of a spouse unheard of for more than 7 years, a presumption can be drawn under Section 108 of the Indian Evidence Act, 1872 (Evidence Act) that the spouse is dead. In such an event, the other spouse can marry a second time on the ground that the former marriage is dissolve due to the civil death of his/her spouse. This was held in Lalchand Narwali v. Mahant Ram Rupgir . Also it is important to note that as a second marriage is void even if it is not declared as void, a third party interested in the marriage (the first wife) can also get the second the second marriage declared as null and void. |
Family-law
