Legal action against husband for re marrying without divorce

729 votes

Please do not worry, If you are Hindu He can not marry the second time without legal divorce.You talk to him confidently fight for your and your children rights.You can file a police complaint.You can also approach the family court.

Advocate Surendrasinh A Thakor LawRato

774 votes

Hi,

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 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.

Ishwar Singh v. Smt Hukum Kaur - AIR 1965 All. 465
Facts:
The opposite party Smt. Hukum Kaur filed an application under section 488 CrPC against the applicant on the allegation that the applicant was her husband, that he was neglecting her and that she was entitled to get her monthly allowance from him for maintenance. The applicant denied to have married the opposite party. Party led evidence and the learned magistrate held that the marriage of the applicant with the opposite party has been established, that the applicant with the opposite party and, therefore, he is liable to pay her a maintenance at the rate of Rs. 15 per month. On revision the learned session judge has referred the case with a recommendation at the order passed by the magistrate be set aside, because, admittedly the opposite parties previous husband Brahma Pal was alive and therefore there could be no legal marriage between the opposite party and the applicant entitling the opposite party to receive any maintenance.

Held:
In this case it was also observed, "so long as such a divorce has not be obtained, the previous marriage subsists and, therefore, the second marriage cannot be contracted by the Hindu so long his spouse is living". Section 5 of the HMA provides that the marriage may be solemnized between any two Hindu's , if neither party has the spouse living at the time of the marriage. In the instant case the previous husband of the opposite party is still alive and therefore a second marriage with the applicant even it is held to have taken effect was wholly illegal and can not given any right to get a maintenance from the applicant.

Trailokya Mohan v State of Assam - AIR 1968, Assam 22
Facts:
Petitioner having already a wife living name Subarna Bala Nath , married a second time one Sefali Debi and thus committed the offence of bigamy punishable under the IPC read with the provisions of the HMA 1955.

Held:
In this case the court further observed, under the provision of sec 5 (1) HMA , one of the condition of a valid Hindu marriage is that it should be solemnized between two Hindus , neither party having a spouse living at that time. Where the accused himself in his statement under sec 342 CrPC had admitted that he did marry A during the life time of Bill of Lading , whom he married first. And that admission was corroborated by oral evidence of witnesses who in their cross-examination did not take a stand that the second marriage was invalid, there is a presumption of a valid marriage and when a strong satisfactory and conclusive evidence to rebut the presumption was totally lacking in the case, it must be held at a valid second marriage was solemnized and that was the basis of the admission made by the accused and it could be relied upon.

Criminal Law
Under criminal law, the first wife aggrieved by a second marriage can file a complaint for bigamy. Under section 494, IPC, "whoever, having a husband or wife living, contracts a marriage during the life of the former husband or wife, is void…" and therefore the same is also an offence punishable with imprisonment up to 7 years or fine or both. This section does not extend to any person whose marriage with such husband or wife has been declared void by the court of competent jurisdiction. Under section 495, IPC, bigamy committed by concealing the fact of the first marriage is punishable with 10 years imprisonment or fine or both. A complaint can also be filed for cheating under section 415, IPC. Cheating is defined under section 415, IPC, as fraudulently or dishonesty inducing the person so deceived to do or omit to do anything, which he would not do or omit if he were not so deceived. Such an act or omission should be proved to cause or likely to cause damage or harm to that person in body, mind, reputation or property. Therefore, if the fact of the subsistence of the first marriage is kept a secret, apart from a complaint under bigamy provision, a complaint can also be filed for those offences of cheating. Often it is difficult to prove the fact of the second marriage. A man faced with the criminal complaint for bigamy would often argued that his relationship with the second woman was not one of marriage as the necessary as the necessary formalities of a valid marriage as required by law were not performed.

Naurang Singh v. Sapla Devi - AIR 1968 All. 1958.
Facts:
Smt. Sapla Devi made an application under Section 488, CrPC, for grant of maintenance on the ground that she was married to Naurang Singh, petitioner about two years ago and thereafter one year of the marriage the relation between them became strained and Naurang singh also married a second wife, namely Kalpa Devi, that about eight months ago he, dispossessed of her ornaments and cloths and turned her out of the house, and there after she started living with her father. It was said that during this period, Naurang Singh completely neglected to maintenance at Rs. 30 per mensem from her husband.
Issue:
Under Section 488, CrPC is she entitled to maintenance even if she has lived with a man as his wife for 12 years and borne him a child.
Held:
R. CHANDRA, J.:
The learned magistrate found that Smt. Sapla Devi was the wedded wife of Naurang Singh, so he granted her maintenance at the rate of Rs. 40 per mensem. Under Section 488, CrPC is she entitled to maintenance even if she has lived with a man as his wife for 12 years and borne him a child. Only legally married woman are entitled to maintenance under section 488, CrPC. It was observed, "Under section 5 and 11 of HMA, 1955, a second marriage with a previous married wife living is null and void".

Thanks

Advocate Ramit Sehrawat LawRato

967 votes

Dear
By knowing the illicit relation of your husband you allow four years is a big thing. Does not a matter file a case of Adultery against your husband. Second thing weather you have given divorce or sign in any paper is not clear from your query. In case not file adultery case against your husband.

Thanks

Advocate Nayan Mehta LawRato