Laws on Bigamy in India: Mr Ajit Kumar

Bigamy was prevalent from time immemorial in different religions. There was a
time when it was common for a King to marry several women to expand their
territory or relation with other rulers.
India is a vast and diverse country. It consists of different religions, caste, and
beliefs of people. Accordingly, Personal laws govern people of different religions.
The principal law preventing Bigamy in India is Indian Penal Code but if
personal laws does not specifically mention Punishment for Bigamy or illegalize
Bigamy, then a person cannot be convicted for the offence of bigamy.
The following queries and answers thereto will clarify an aspect of Bigamy in
India-

 Laws Prohibiting Bigamy

 When is bigamy an offence? What needs to be proved?
 Proofs required for lodging complaint in Bigamy
 Does a provision differ for different religions?
 When is Second marriage valid?
 Legal Status of Second marriage
 Is there any legal right for the Second wife?
 Property rights of the Second wife
 Property rights of children born out of such void marriage.
 What if facts of the first marriage are not disclosed to the person whom
the second marriage is contracted?
 Can a person convert his religion for contracting second marriage?
 Who can file a petition for declaring marriage void?
 Will this penal provision apply to scheduled tribes?
 Live in relationship will count as marriage? When?
 Punishment for abetment of Bigamous marriage?

Laws Prohibiting Bigamy: Mr Ajit Kumar

Bigamy is prohibited under Section 494 of the Indian Penal Code. The law states
that, whoever in the lifetime of existing husband/wife marries someone else,
such marriage by reason of its taking place during the lifetime of such husband
or wife, should be considered void and should be punished for such offence. If
any person marries more than once 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.

Mr Ajit Kumar, When is Bigamy an offence? What needs to be proved ?

The following ingredients are required to prove by the prosecution:-

 The Accused must be married

 He must have contracted Second Marriage
 The first marriage should subsist
 The first husband/wife must be alive
 Both marriages must have completed necessary ceremonies and must
be valid.

Mr Ajit Kumar what Proofs required for lodging complaint in Bigamy

None. In the case of Neelaveni Vs. State Rep.By Insp.Of Police & Ors[1],
where the aggrieved wife appealed a High court decision for quashing the
charge sheet under Section 406 and 494 of the Indian Penal Code. It was held
“Report and the materials collected during the course of the investigation are
required to be considered” and “Truthfulness or otherwise of the allegations is
not fit to be gone into at this stage as it is always a matter of trial.”
Even though no evidence is required to lodge a complaint, it is always useful to
collect evidence as mentioned above to solidify case in trials.
Does a provision differ for different religions?(For Mr.Ajit jee)

Even though Indian Penal Code prohibits and punishes for Bigamy, it is
necessary that Personal laws in India should prohibit bigamy. We can go
through the following Personal laws in India to understand this concept-

1. Hindu Marriage Act– Section 1 of Subsection (a), (b) and (c) states
which specific religion and persons come under this Act. Thus, under
Section 17 of Hindu Marriage Act, any person considered Hindu
according to Section 1 marries again during the life of first
husband/wife, shall be punished under Indian Penal Code provision.
2. Parsi Marriage and Divorce Act– Section 5 of this act declares
Bigamy null and void or dissolved and imposes a penalty under Section
494 and 495 of Indian Penal Code.
3. Christian Marriage Act– Even though the Christian Marriage Act
doesn’t have specific provision for Bigamy, Form of Register Marriage is
only for Bachelor/Spinster and Widow/Widower. For Marriage
Certificate Section 60 Sub Section (2) states that “neither of the
persons intending to be married shall have a wife or husband still
living”, and making false oath or declaration is punishable under
Section 193 of IPC, this clarifies that more than one marriage will be
considered illegal under this act.
4. Special Marriage Act 1954– Section 44 of this act states punishment
for Bigamy and imposes a penalty under Section 494 and 495 of Indian
Penal Code.
Foreign Marriage Act 1969- Section 19 of this act states punishment for
Bigamy and imposes a penalty under Section 494 and 495 of Indian
Penal Code.
5. Muslim Marriage Law– There are no codification or specific
provisions for this law. It is written in Quran that a Muslim male can
marry two, three or four times, if they are capable to treat and respect
each wife equally after marriage, if not then only one.
 If a person marries more than once under Hindu Marriage Act, Parsi
Marriage and Divorce Act, Christian Marriage Act, Special Marriage Act
and Foreign Marriage Act, he/she will be punished according to Indian
Penal Code.
And according to Muslim Marriage law, any Muslim Male committing
Bigamy is not invalid and hence not an offence.

When is Second marriage valid? : Mr Ajit Kumar most important for you.

There are certain exceptions for second marriage-

 If the competent court has declared first marriage of such person void.
 If any person marries during the existence of first marriage, and
husband or wife of that person is continually absent for seven years
and have not been heard of by such person as being alive within that
period. But, facts should be disclosed to the person, with whom the
second marriage is contracted.
 If any person comes under this exception, then contracting second
marriage should not be considered as an offence, unless otherwise
proved.

Legal Status of the Second marriage

Legally, Second marriage is considered void if first marriage still persists.

Section 494 of Indian Penal Code itself punishes for Bigamy unless second
marriage comes under the exception provided in this section.

Is there any legal right for the Second wife?

The second wife does not have any legal right. In fact, the second marriage is
considered void. Women whose marriage has been declared void suffers a lot.
There are no specific provisions for the second spouse, but there are a few ways
in which she can sue her husband-

Cheating– Section 495 of Indian Penal Code 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.

Property rights of the Second wife

As provided above, the second wife does not possess any rights that normally
the first wife possess. The second wife doesn’t have the right to her spouse’s
property unless such marriage is valid under exceptions provided in Section
494.

Property rights of children born out of such void marriage : Mr Ajit Kumar

It is difficult for any women whose marriage has been declared void to maintain
children out of such marriage. There are no rights for Second wife as well as it
is very difficult to get maintenance from such void marriage. Therefore, Section
16 of the Hindu marriage act states that any child, who would have been
legitimate if the marriage would have been valid, shall be legitimate. Thus, any
child born out of void marriage is legitimate and thus shares equal rights in the
property of their father/mother. 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 and ancestral property of their father. But they cannot
inherit ancestral joint family properties. Children of void marriage will get share
only in their father’s/mother’s property.
What if facts of the first marriage are not disclosed to the person whom the

second marriage is contracted?

Whoever marries someone without disclosing him/her about their first marriage
are punishable under Section 495 of Hindu marriage act. When a person keeps
secrecy about his/her first marriage they are punishable with imprisonment of
ten years and are also liable to fine.
A second wife can file a petition for cheating and bigamy and may request to
nullify that marriage.

Can a person convert his religion for contracting second marriage?

No, in a remarkable judgment, the Hon’ble Supreme Court of India outlawed

this practice in Sarla Mudgal Vs. Union of India & Ors.  stated that “A
marriage solemnized under a particular statute and according to personal law
could not be dissolved according to another personal law, simply because one of
the parties had changed his or her religion.” It also that that Second marriage
of a Hindu husband after his conversion to Islam is void marriage in terms of
Section 494 IPC.
In Parsi marriage and divorce act, a person is bound to follow Parsi marriage
law even after converting to any other religion hence second marriage by any
Parsi will be considered void.
If a person marries under Special marriage act and Muslim marriage act, he
overrides personal law and will be convicted for bigamy under Special marriage
act.

Who can file a petition for declaring marriage void?

Only second wife is entitled to file a petition for declaring her marriage void. The
first wife cannot file a petition to declare such marriage void.
Will this penal provision apply to scheduled tribes?

No, Section 2 (2) states that “Nothing contained in this shall apply to the
members of any Scheduled Tribe within the meaning of Clause 25 of Article 366
of the Constitution unless the Central Government, by notification in the Official
Gazette, otherwise directs.

Punishment for such offences will be considered by looking into “Custom” of

such religion.
The Supreme Court has affirmed a Delhi High Court judgment that “in the
absence of specific pleadings, evidence, and proof of the alleged ‘custom’
making the second marriage void, no offence under Section 494 of the IPC can
possibly be made out against the respondent,” a Bench said. ”

Will Live-in relationship count as marriage? When? : Mr Ajit Kumar

Yes, a bench of Justice MY Eqbal and Amitava Roy in the case of  Dhannulal
and Ors. v. Ganeshram and Ors. [2] said that “where it is proved that man
and woman have lived together as husband and wife, the law will presume,
unless contrary is clearly proved, that they were living together in consequence
of valid marriage and not in a state of concubinage.”

Punishment for abetment of Bigamous marriage?

Whoever abets Bigamous offence shall be punishable under Section 494 read
with Section 109 of IPC. A priest, who officiates a bigamous marriage, would be
an abettor, but, the mere presence of persons at such a marriage would not
necessarily constitute abetment. Likewise, granting accommodation in the
house for such a marriage, would not per se amount to abetment.
 Polygamy among Hindus is sometimes accepted in some rural areas, [10] often
with approval by earlier wives. The 2005-06 National Family Health Survey
(NFHS-3) found that 2 percent of women reported that their husband had other
wives besides herself. Husbands of women with no children are more likely to
have multiple wives.

Polyandry has been traditionally permitted in a few Hindu tribes.

What is the Punishment for second marriage without divorce in India?

Mr.Ajit may consider:-

Marriage is considered to be a sacred institution and bond for a lifetime. However, it
may not prove to be right in everyone’s life. Relationship experience and differences
for couples vary and this leads to infidelity where instances of second marriage while
still being married to the first spouse come to light. We aim to discuss all the laws
related to the second marriage without divorce in India and punishment for the same.
What is Bigamy?
Bigamy in simple terms means entering a second marriage while still being married to
the first spouse. The Hindu Marriage Act, 1955 which extends to the whole of India
declares marriage to a second woman while the first wife is alive and not divorced as
illegal. Due to this stipulation, the second marriage is treated as ‘void’ while the
first wife is alive and not divorced.
It is important to note that the Hindu Marriage Act extends to Hindus, Jains, Christians,
Parsis, and Sikhs except for Muslims.

To prove bigamy following are the absolute essentials.

1. The accused was married which can be proven

2. The first spouse of the accused was alive as on the date of the second marriage.
3. The proof of celebration of second marriage is the same as of the first marriage
4. Due to the first spouse being alive the second marriage was void.
Section 5 and 17 of the Hindu Marriage Act
The offense of bigamy is a penal offense as well as an offense against marriage. The
essence of Section 5 and 17 of the Hindu Marriage Act clearly states that any
 marriage solemnized between two Hindus will be void if the first spouse is still alive on
the date of the second marriage and the provisions of Section 494 and 495 of
the Indian Penal Code also will be applicable.
Section 494 and 495 of the Indian Penal Code, 1860
Sec 494 of the Indian Penal Code, 1860 notes that whoever is found guilty of
bigamy shall be punished with an imprisonment term ranging up to 7 years and shall
also be liable to fine.
In case of accused hiding the fact of second marriage from the second party, the
imprisonment can be higher and can go up to ten years. (Sec 495 IPC)
While essentials of Bigamy needs to prove for a conviction, there are also individual
exceptions to Section 494 of IPC.
1. This section does not apply if the first marriage was termed void by a competent
court.
2. This section also does not apply if either of the spouses was absent and unheard
of for seven years. It is essential though that the person marrying the second time
should inform the second party of all the facts.
The offence under this section is non-cognizable, bailable, compoundable by the
husband or wife of the person so marrying with the permission of the court and shall be
triable by magistrate of the first class.

## As per your Case Study

Second marriage, during the subsistence of the first marriage, is illegal in India
and the relationship arising from the same does not have any validity. Even
though the law is very clear on this point, 'second marriage' is a common practice
in Indian society. As a result of the aforementioned contrast between the law and
social practice, second wives in India have little protection under the law.

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.

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.

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".

Banshidhar v Chhabi Chatterjee   - AIR 1967 Patna 277

Facts:
CrPC (1898) sec 488 - Hindu woman claiming to have been married in 1962 to
petitioner - Petition allegation that she was not his wife and that he was already
married in 1952 - on evidence.
Held:
Woman to be legally married to petitioner - maintainability of claim under sec
488 - if petitioner on the date of marriage with the claimant woman had already
a legally wedded wife, his marriage with the claimant - woman will be void under
sec 11 of the HMA. A claim under sec 488 by a woman can be made only if she is
the legally wedded wife of the person from whom she claim maintenance - such
claim has nothing to do with the personal law on maintenance has been changed
by the Hindu adoption and maintenance act 1956, which does not contain any
provision entitling a woman to claim maintenance from a person with whom she
entered into a void marriage - as such, the claimant woman will not be entitled to
maintenance under sec 488.

Evident Act

Under Section 114 of the Evident Act the Court shall presume the existence of probable
facts, having regard to human conduct and the common course of the events and common
sense being used as the judicial tool. In sumitra Devi v. Bhinkan Chaudhary, it was held
that the fact that the couples were living as husband and wife for decades was relevant in
proving factum of their marriage. Again in Rangnath Parmeshwar v. Pandirao Mali, 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.

Sumitra Devi v. Bhikan Choudhary - (1885) 1 SCC 637.

Facts:
Sumitra Devi filed an application for maintenance under Section 125 of the Code of
Criminal Procedure for herself as also a minor daughter alleging that she had been married
to the Bhikan sometime in 1971 and out of the wedlock the child had been born. She
further alleged that the fact that the respondent was already married and his spouse was
living was not known. After the discovery of the previous marriage of the respondent the
relationship between the parties gradually became strained and ultimately the respondent
started totally neglecting the appellant and refused to maintain her. She had, therefore, no
option left but to ask for maintenance for herself as also for the child.
Issue:
Criminal Procedure Code, 1973 - Section 125 - Hindu Marriage Act, 1955 - Section 7 - There
can be a marriage acceptable in law according to customs which do not insist on
performance of rites as saptapadi and marriages of this type give rise to legal relationship
which law accepts.

Held:
RANGANATH MISRA, J:
The Additional Sessions Court and the High Court has adopted a technical approach while
considering the question of marriage. Criminal Procedure Code, 1973 - Section 125 - Hindu
Marriage Act, 1955 - Section 7 - Evidence Act, 1872 - Section 114 - Parties had lived
together about a decade public records including voters' lists described them as husband
and wife and competent witnesses of the village of the wife as also the husband had
supported the factum of marriage witnesses have also spoken about the reputation of the
appellant being known in the locality as the wife of the respondent.
Maintenance under Section 125 CrPC

A wife can claim maintenance from her husband irrespective of her religion under Section
125, CrPC. To prove the factum of marriage between the husband and the wife, we must
rely on whether the husband has treated the woman as his wife in the society.Accordingly,
the Voter's Identity Card, wherein she has been referred to as his wife, or the joint bank
account, or even the police complaint wherein he has stated that she is his wife can be used
to prove her status as her wife. In Samudurai v. Rajlakshmi , it was held that when the wife
comes to the court claiming maintenance, the husband should not be allowed to take
advantage of his own wrong, alleging that there is a first marriage subsisting and thereby,
the marriage between him and the wife claiming maintenance is a nullity. In Mallika and
Anr v. P Kulandi , the Madras High Court held that is sufficient if evidence is available to the
effect that the parties lived together for considerable time. In this case, the court held that it
was established that the petitioner had been living with the respondent for a considerable
period and continuously, so as to give way for the child to be born- this status of the
petitioner is sufficient to get maintenance for herself as well as for the child. Where the
husband misrepresented that the first wife was dead, the second wife would be entitled to
maintenance and the child from the maintenance and the child from the second marriage
would be legitimate child.

Hindu Personal Law

Bigamy is defined as an offence not only under the criminal law but also under
HMA, Section 17, HMA says that any marriage between Hindus is void if on the
date of such marriage, either party had a husband or wife living. The same is
punishable under Section 494 and 495, IPC.
Another option available to the second wife is to get the marriage annulled under
Section 11 read with Section 5(1) of HMA. Section 5, HMA provides for the
conditions for the valid marriage, on being that neither party should have spouse
living at the time of the marriage. Accordingly, a marriage contracted while
either party has a spouse living, can be annulled under Section 11 of Hindu
Marriage Act, 1955.

The provisions for divorce under Section 13, HMA also provide for the remedy
available to the second wife. Section 13 (2) (i) of HMA says that in cases of
marriages before commencement of this Act, a second wife can seek divorce on
the ground that her husband's first wife was alive at the time of the
solemnization of the second marriage.

Even though the law for the interim maintenance under Section 24, HMA does not
categorically provide for maintenance for second wife, the Section has been given
a very wide interpretation by the courts to bring the cases of second wives within
its ambit. The second can also claim interim maintenance under the
interpretation given to Section 24, HMA. In   Laxmibai v. Ayodhya Prasad , it was
held that 'wife' and 'husband' used in Section 24, HMA are not to be given strict
literal meaning as to convey only legally married wife and husband. The
expression wife and husband is in the context of the section and scheme of the Act
should mean a person claiming to be a wife or a husband.

Similarly, under section 25, HMA the provisions for permanent alimony has also
been interpreted widely by the courts to protect the rights of the second wives.
After the declaration of the nullity of the marriage, the second wife could claim
maintenance under section 25, HMA. It was held 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 the Hindu Adoption and Maintenance Act, 1956
(HAMA). In   Kulwant Kaur alias Preeti v. Prem Nath , it was also said 'no sane
lady would surrender herself unless she treats her male companian as her
husband- whether the marriage is proved or not that is the point to be
determined by the trial Court itself- but keeping in view the fact that the
petitioner cohabited with the respondent, interim maintenance under Section 20,
HAMA is allowed to her'.

Under Hindu Women's Rights to Separate Residence and Maintenance Act, 1946, a
Hindu married woman was entitled to maintenance if her husband contracted
another marriage provided this happened before the commencement of that Act.
However, Section 18, HAMA provides that a Hindu wife can claim maintenance
from her husband on the basis of the aforementioned grounds amongst several
others irrespective of the time when he contracted the other marriage (before or
after 1956). Accordingly, a wife can claim maintenance from her husband even
after she abandoned him when she comes to know that her husband has another
wife living.

The phrase 'any other wife living has been interpreted variously by the different
High Courts. In   Satyanarayana v. Sseetheramama , the A.P. High Court held that
'wife living' meant existing or alive and not necessarily living with the husband.
However, a subsequent decision of the Madras High Court on the other hand
in   Annamalai Mudaliar v Perunayee Ammal , said that 'wife living' necessarily
meant living with the husband. The Bombay High Court dissented from the
decision of the Madras High Court, in   Mani Bai v. Mukundrao , holding that
under Section 18 of HAMA, the second wife can also claim a separate residence
and maintenance under this Act.

Conclusion
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.

Given this background of contrasting legal precedents, lawmakers should make

clear provisions to protect the rights of those women who have been duped into
'second marriages' so as to bring them some respite.