Can i remarry without giving divorce to my wife? Only for child birth.

I am an NRI and stay with my wife out of India. We are unable to have a child owing to my wife's medical conditions, and the only way is to go for a Donor Egg whereas I would like to have a child of my own with my wife.

Can I go for a second marriage in India under citing such circumstances without divorcing my wife? What legal implications will this have if I do so?

Answers (1)

89 votes

Irrespective of the location of your current residence, if you wish to re-marry in India, it would come under the ambit of the Hindu Marriage Act 1955, which prohibits a second marriage as long as your first marriage is valid under law.

Section 17 of the Hindu Marriage Act states that 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 the provisions of sections 494 and 495 of the Indian Penal (45 of 1860 ) Code shall apply accordingly.

This would mean that in case you remarry in India without divorcing your first wife, the second marriage would be declared null and void, and you may be tried and punished for Bigamy in accordance to the applicable section of the IPC.

Would also like to state here that a few HC rulings in 2010 state that Hindu Marriage Act (HMA) may not be applicable to NRI couples if they are domicile of a foreign country. However, a few rulings later state the opposite on the contrary wherein Divorce attained out of the country by couples married under the HMA has been declared invalid by the Hon'ble Court.

Thereby we suggest that you must either seek Divorce from your wife before remarrying in India or alternately seek further medical assistance / adoption in case having a child is the only reason for which you are contemplating remarriage.

Kindly contact us for any further details and action, if needed.

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