Author: Apoorva Begani, Student at Renaissance Law College, Indore (M.P.).
This research paper basically speaks for the Second Wife under Hindu Law which suffers a lot of problems to lead their healthy life and specially to maintain the children which are born out of such void marriage. Such woman is not entitled to get maintenance, if any woman is not independent then how she will live her life and how she will fulfil her own needs. In this research paper, I have discussed about legal marriage and when a second marriage is a valid marriage and the legal rights which a second wife can hold, and can sue such man who cheated on her. This paper consists of Bigamy in the detail with some case laws and discussed some special circumstances. This paper also talks about the property right and maintenance on which the lawmakers should make some laws so that the victim of such void marriages can heel and can lead their life in a healthy manner.
Marriage is an ancient tradition which is popular from Vedic period and till now with various modifications it developed in a better way. In present, second marriage is void-ab-initio if the first marriage is in subsistence. The law on such relationships made very clear that if the first marriage is in subsistence and the first marriage is legally wedded i.e., all the ceremony which makes a marriage legally valid with performing saptapadi is a valid marriage. If a person performs second marriage, he/she commits bigamy which is a punishable offence.
In Ancient time, women were not allowed to perform second marriage when her first husband is alive. But there was no prohibition on men, then some state passed laws to stop bigamy marriages and then monogamy marriages were introduced among Hindus.
According to Hindu Marriage Act,1955,
Section 11 where it clearly defines that if any person who perform second marriage during his/her first marriage’s husband or wife is alive and that first marriage was done according to the customs and rites of Hindu law then such marriage is called Void or Illegal Marriage.
The second wife who was cheated by her husband is the person who suffers a lot because society doesn’t support such women. There is a social stigma which is attached with the women being a second wife and such relationship has no legal status in our society. There is no recognition for second wife but due to judicial interpretation there are chances of getting maintenance to such women. The rights which a second wife is entitled basically depends upon the discretion of judges.
MARRIAGE UNDER HINDU LAW
According to Section 5 of Hindu Marriage Act, any two person who are Hindu by birth or conversion may solemnize the marriage, if they fulfill/follow the following conditions which are as follows-
- Neither party has a spouse living at the time of the marriage,
- At the time of marriage, neither party-
a) Is capable of giving a valid consent to it in consequence of unsoundness of mind; or
b) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children; or
3. Has been subject to recurrent attacks of insanity or epilepsy;
4. The bridegroom has completed the age of 21 years and the bride at the age of 18 years at the time of the marriage.
5. The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.
6. The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Thus, under Section 17 of Hindu Marriage Act, any person who is considered as Hindu according to Section 1 marries again during the life of the first husband/wife, shall be punished under Indian Penal Code.
In Rangnath Parmeshwar v. Kulkarni and another, it was held that “if H and W were living as husband and wife, then even in the absence of proof to that effect, a rebuttal presumption would arise that the marriage between them was valid”.
According to Section 7 of Hindu Marriage Act, 1955 states that when any two Hindus solemnize the marriage after performing customary rites and ceremonies which include Saptapadi i.e., the seven steps which the bridegroom and the bride jointly take before the sacred fire. By this, a marriage becomes complete and binding when the seventh step is taken.
CIRCUMSTANCES UNDER WHICH A SPOUSE CAN SOLEMNIZE HIS/HER SECOND MARRIAGE
Section 13 of Hindu Marriage Act, 1955 states that any Hindu person can solemnize second marriage when following cases had been done by either of the spouse-
- When any of the spouse had voluntary sexual intercourse with any person other than his or her spouse,
- When the petitioner is treated with cruelty,
- When either spouse has deserted the petitioner for a continuous period of not less than 2 years.
- When any of the spouse has ceased to be a Hindu by conversion into another religion.
- When any of the spouse is suffering from continuously or intermittently mental disorder or of unsound mind.
According to Section 13 of Hindu Marriage Act, 1955 which tells about Divorce that clearly speaks the above circumstances for the grounds of divorce and wife has given additional grounds for divorce i.e., the husband has been guilty of rape, sodomy or bestiality.
A wife can file a suit under Section 18 of Hindu Adoption and Maintenance Act,1956 or in a proceeding under Section 125 of Criminal Procedure Code, Section 488 of Criminal Procedure Code.
Under Special Circumstances
- If any man deceitfully induces any women and gives her a belief that she is lawfully married to him, with an intention to cohabit or to have sexual intercourse with such woman. Here, such man shall be punished under Section 493 of Indian Penal Code with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Hence, this marriage will be considered as a Mock or Invalid Marriage.
In the above case, the word “Any Man” can be a man whether married or unmarried. If a married man induces a woman and marry her to give a belief that the marriage is lawful and to cohabit or have sexual intercourse with him in that belief then a woman can file a case under Section 493 of Indian Penal Code.
- If such marriage ceremony is going through dishonestly or with a fraudulent intention and such man has knowledge that this marriage is not lawful, then he shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
- Deceit or fraudulent Intention
- Causing of false belief
- Cohabit or have sexual intercourse
In ancient time, it is a prevalent activity in India. A king marries several women so that his relation can expand with other rulers and can expand their territory.
India is a vast country which consist of different religions, caste and beliefs of people. People of different religions govern by their own personal laws. Indian Penal Code prevents bigamy but until and unless if the personal law permits them to have polygamy marriages it will not count as an offence. If personal law specify punishment for Bigamy or illegalize Bigamy, then a person can be convicted for the offence of bigamy.
Bigamy is defined under Section 494 of Indian Penal Code, this law states that, whoever marries with another person, during such marriage if former spouse is living. Due to such reason such marriage is considered as void and should be punished for such offence.
If any of the spouse marries more than one marriage during the life of first husband or wife should be punished with imprisonment which may extend to seven years and shall also be liable to fine.
How a Bigamy should be proved?
The prosecution has to prove following ingredients to prove the offence of Bigamy-
- The accused must be married.
- He must have contracted second marriage.
- Existence of former marriage.
- The former spouse must be alive.
- Both marriages must have completed necessary ceremonies and must be valid.
WHEN A SECOND MARRIAGE BECOMES A VALID MARRIAGE?
According to Section 494 of Indian Penal Code, there are some exceptions when a second marriage becomes lawful.
- If the competent court has declared first marriage of such person as void.
- If any person marries during the existence of first marriage, and husband or wife of that person is-
- Continually absent for seven years.
- Have not been heard of by such person as being alive within that period.
Facts of former marriage should be disclosed to the person, with whom the second marriage is contracted. If any person comes under this exception, then contracting second marriage will not be considered as an offence, unless otherwise proved.
LEGAL STATUS OF SECOND MARRIAGE
There are no legal status gives to second marriage, until such marriage falls under exceptions which are stated above. Legally, second marriage is void if first marriage is subsisting. Such marriage will be an offence under Section 494 of Indian Penal Code that punishes for Bigamy.
IS THERE ANY LEGAL RIGHT FOR THE SECOND WIFE?
There are no specific provisions for the second spouse. Second wife is not entitled to have any legal right because such second marriage is considered to be void. But she can have several ways by which she can sue her husband which are as follows:
- Cheating –
she can sue under section 495 of Indian Penal Code which states that whoever commits the offence of marrying someone without disclosing the fact of his/her second marriage is punishable with imprisonment which may extend to ten years and shall also be liable to fine.
A second wife can file a petition for cheating and bigamy and may request the court to nullify such marriage.
- Property Rights of the Second Wife-
As per customs, second marriage is void unless such marriage falls under exceptions provided under Section 494 of Indian Penal Code. The second wife does not possess any rights that normally the first wife possess.
But the law makers should enlighten such laws because on such women there is a social stigma and they face a lot of problems. Society does not support such woman. Their own family doesn’t treat them in good manner. Their own family doesn’t support them and therefore, they feel helpless in such circumstances.
There must be some law which clearly talks about second wife’s rights under property so that she can live a healthy life and can survive. The law should specify any certain portion from his husband’s property which can be ancestral or self-acquired, to second wife so that, she can have a shelter upon her and can live her life with minimum necessities.
- Maintenance of Second Wife-
There is no such provision in Hindu Marriage Act, where a second wife is entitled to maintenance unless such second marriage fall under exception provides in Section 494 of Indian Penal Code.
The second wife must get a maintenance, as I stated above that society doesn’t support such women and doesn’t leave such women to live peacefully. Number of women comes under depression and commit suicide because such woman can’t handle the pressure which the society puts on such women.
Court must interpret the laws and allow the maintenance for the second wife even if the marriage is void with some exceptions.
In Rajesh Bai v. Shantabai, that “a woman whose marriage is void because of the existence of another wife is entitled to maintenance under this section. The second wife can claim interim maintenance under Section 20 of Hindu Adoption and Maintenance Act, 1956 (HAMA)”. But, in accordance to this the Madras High Court, in Mani Bai v. Jayantilal Dahyabhai, “ holding that under Section 18 of HAMA, the second wife can also claim a separate residence and maintenance under this Act”.
- Property Rights of children born out of such void marriage-
When the marriage is void and the children born out from such marriage, it is very difficult to maintain such children. The legality of such children is absent. There are no rights for second wife to get even maintenance from a void marriage.
Therefore, Section 16 of Hindu Marriage Act states that any child which is born out from a void marriage is legitimate then the child will be entitle to have equal shares in the property of their mother/father.
This provision is also applicable to children born out of a live-in relationship.
Children born out of void marriage get equal rights as the children of the first wife in self-acquired property of their mother’s/father’s property. But a child born out of a void marriage cannot inherit ancestral joint family properties.
Who can file a Petition?
Only second wife is entitled to file a petition for declaring her marriage void. Here, first wife has no rights to file a petition.
Any of the spouses convert themselves into any another religion without the consent of the other spouse and causes tremendous domestic upheavals in the lives of the other spouse and children. The personal law by which people of different religion is governed is vary from religion to religion. This problem becomes critical when one religion permits the activity of Polygamy and on the other hand, another religion doesn’t permit such activity.
Prior to Hindu Marriage Act, 1955, a Hindu male is permitted to practice polygamy i.e., a practice to marry with more than one wife at the same time. After such enactment polygamy was removed and enforced Monogamy. Where as in Christian Community, the conception of marriage is monogamous, in this community marriage is considered to be the voluntary union for life between two persons.
But, in Islamic law a man is permitted to marry with four. Here, a man can have four wives at the same time. If any Hindu men converting to Islam, only for the purpose of contracting a second marriage, it is a matter with lot of controversy- both in legal as well as social issue. Conversion of a Hindu man to Islam has generally been nothing but an attempt to legalize his second marriage, which is not only prohibited under the Hindu Law, but is also made a penal offence.
Case- Sarla Mudgal & others. V. Union of India
It is a Supreme Court of India case. Its judgement in 1995 laid down the principles against the practice of solemnizing second marriage by conversion to Islam, with first marriage not being dissolved. The verdict discusses issue of bigamy, the conflict between the personal laws existing on matters of marriage and invokes Article 44 of Indian Constitution. It is considered a landmark decision that highlighted the need for a Uniform civil code.
Cruelty by Husband or Relatives of Husband
Section 498A of Indian Penal Code that states “whoever, being the husband or the relative of the husband of a woman, subject such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine”. It endeavors to prevent torture to a married woman by her husband or by his relatives and to punish them for harassing or torturing the wife to coerce her or her relatives to concede unlawful demands of dowry.
A two bench of the Supreme court held that even a second wife can file a complaint under Section 498-A. J. Arijit pasayat connect section 498A and 304-B IPC and Section 113-B (Evidence Act,1872) assumes importance:
“…. the legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent….”
India is a vast and diverse country. The mainly offences which are caused specially in marriages are increasing day by day. The rights of second wife are not prescribed under a statute or text. It is an enormous time to expand the rights and to think about such women’s who suffer a lot in such marriages. Now a days, women suffer a lot in such fraudulent or dishonestly marriages. In India such marriages are void and such women has no legal right to sue such person with whom the marriage is contracted. There is no maintenance for second wife but the children born out from such marriage can inherent the self-acquired property from their mother or father’s property. They cannot inherent the joint family property. The law makers should think upon it and should give some legality to the women of such void marriages.
 1996 AIR 1153, 1996 SCC (2) 226
 AIR 1982 Bom 231, (1981) 83 BOMLR 327
 AIR 1979 Guj 209, (1980) GLR 66
 AIR 1995 SC 1531
 Vrindra Narain (2001). Gender and community: Muslim Women’s Rights in India. University of Toronto press. P.62.
 BS Joshi v. state of Haryana, (2003) Cr LJ 2028 (SC): AIR 2003 SC 1386
 Reema Aggarwal v. Anupam, AIR 2004 SC 1418: (2004) 3 SCC 199: (2004) Cr LJ 892(SC)