BY PALAK MATHUR
LEGAL INTERN, H.K. LAW OFFICES
INTRODUCTION
A second marriage, if the first marriage exists at the time, is considered illegal and the relationship that exists between the couple because of the second marriage also holds no value or validity in the eyes of the law. Although the legal provisions made in this regard have made the status of second marriage very clear, it is still seen as a common practise in Indian society. Due to the differences shared between the concept of second marriage and society, the wives of second marriages have very little protection in the eyes of the law.
With the introduction of the Hindu Marriage Act, 1955 (HMA)[1], one of the main requirements that needed to be fulfilled for a marriage to be considered a valid marriage is that neither the husband nor the wife should have a spouse living while the marriage of the first couple is still intact. In the olden times, a woman was restricted from marrying another person while her second husband was still alive, except if any of the customs made her do so. The men were safe from these restrictions, but later on, some states passed laws which criminalised bigamy, and the concept of monogamy was held as a compulsion for both the husband and the wife. After 1955, Section 11 of the HMA held that second marriages would be considered null and void ab initio.
As we are aware that society is still not accepting towards a second wife, and as there is no recognition provided to the second wife, she may have a chance to seek maintenance from her husband, and her getting the rights depends on the decision and view of the judges. Due to the absence of protection and recognition provided for women, these loopholes in the law are exploited by men to make their case even stronger in court.
HISTORICAL PERSPECTIVE
Although monogamy is the basic regulation that has existed since the olden Vedic times, polygamy has also existed simultaneously. But even the first wife was considered the “only wife” in every sense. One of the texts of Manu smriti indicated that there could be a situation when a man could be permitted to be a part of a second marriage, but that could only happen if his first wife had died. Another text of Manu smriti explains how it was justified for the man to have a second wife, but for this to happen there were certain conditions that needed to be present. They were: if the wife couldn’t conceive a child or had some disease that could result in her death, then a second marriage would be considered valid, but before the marriage, the consent of the first wife for the second marriage was mandatory.
As considered by society, it was always held that the first wife had precedence over the others, and so would her first born child. With the changing times, the courts of British India held that a Hindu male didn’t have any restrictions when it came to a second marriage.
However, it was the customs that made the consent of the first wife mandatory for the second marriage to happen. It was also held in the case of Raghuveer Kumar v Shanmukha Vadivar[2], that a custom which had prevalence amongst Nadars in Udumalapeta Taluk, which prevented a second marriage, even if it was established, didn’t have the force of law.
Things to be kept in mind while discussing the concept of second marriage:
- Evidence of a Second Marriage:
The Supreme Court of India has held that there needs to be proof that the solemnization of the second marriage, keeping in mind the required religious practises that are applicable to the parties, is necessary and that the first marriage has been declared as null or void for the second marriage to be held valid. The mere admission by the accused that he had been a part of a second marriage wasn’t enough for it to prove that the marriage involved adultery or bigamy.
In a Hindu marriage, if it is performed according to its religious customs, the performance of homa and saptapadi are the most important ones, and if they aren’t performed, then the marriage won’t be considered a solemnised marriage under the HMA, 1955. It is necessary for a second marriage to be a legally valid marriage to come within the boundaries of Section 494 of the IPC[3]. To solemnise a marriage means conducting the marriage with the proper rites and practises as mentioned in the act.
- Husband or Wife Must Be Living:
For section 494 of the IPC to be applicable, either the husband or the wife from the first marriage must be alive, or the first marriage must not have been dissolved via divorce, meaning that the first marriage should not still be held valid. Section 15 of the HMA will also not be applicable if the first marriage has been declared void via a decree of nullity. Section 494 of the IPC protects a marriage from punishment if the second marriage happens after seven years of the absence of a husband or wife who has not been heard by his or her close relatives during those seven years.
- Who Can File a Complaint in the court:
Whoever is aggrieved due to bigamy can file a complaint. If it is the woman or the husband who is aggrieved, then her father can also file a complaint on her behalf.
- Injunctions can be granted to:
A petition that restricts the husband or wife from getting into a second marriage is not maintainable. A suit can be filed in the court for perpetual injunction by the wife which indicates restricting her Hindu husband from getting involved in a second marriage would lie within the jurisdiction of a civil court. The petition declaring that the second marriage is held as void can be filed in the court only by the parties that are a part of the marriage on trial and not by the former wife of the husband.
Laws and their stand on the concept of “second marriage”:
- The Hindu Marriage Act, 1955:
With the introduction of the Hindu Marriage Act, 1955 (HMA), one of the main requirements that needed to be fulfilled for a marriage to be considered a valid marriage is that neither the husband nor the wife should have a spouse living while the marriage of the first couple is still intact. In the olden times, a woman was restricted from marrying another person while her second husband was still alive, except if any of the customs made her do so. The men were safe from these restrictions, but later on, some states passed laws which criminalised bigamy, and the concept of monogamy was held as a compulsion for both the husband and the wife. After 1955, Section 11 of the HMA held that second marriages would be considered null and void ab initio.
As we have made it clear and as it is also seen under the HMA, 1955, a marriage to be valid should have happened by following the religious rites as prescribed under the law. In certain circumstances, such as when it is unheard from a house, whether by the husband or the wife, for more than 7 years, it can be presumed that the unheard spouse has demised. This following presumption can be made under Section 108 of the Indian Evidence Act of 1872. In this circumstance, the left spouse can remarry on the ground that his/her first marriage has been declared dissolved due to his/her death. This was seen and held in the case of Lalchand Narwali v. Mahant Ram Rupgir[4]. It is necessary to see that a second marriage can be held as void even if it wasn’t declared void. The first wife from the former marriage can get the second marriage declared as void and null.
Case Laws:
- Ishwar Singh v. Smt Hukam Kaur – AIR 1965 All 464
Held:
In this case, it was held that as long as the divorce hasn’t been obtained, the marriage must exist in the eyes of the law and the second marriage cannot happen for a Hindu as long as he is involved in a marital relationship with his former wife. Section 5 of the HMA also states this. In the following case, the former husband of the opposite party is alive, and the second marriage that took place with the applicant is held as illegal, and no maintenance can be sought from the applicant.[5]
- Trailokya Mohan Nath v State and Anr -AIR 1968 CriLJ 896
Held:
The same decision was observed by the court as was seen in the case of Ishwar Singh, which was that as long as the divorce hasn’t been obtained, the marriage must exist in the eyes of the law and the second marriage cannot happen for a Hindu as long as he is involved in a marital relationship with his former wife. In this case, it was seen that the accused, in his statement under Sec 342 of the CrPC, had admitted that he married A while B was still alive, who was his former wife. This admission was made under oral evidence of witnesses. During their cross-examination, they didn’t opine that their second marriage was invalid. Evidence lacked in the case, it was held that the second marriage was solemnised and the admission of the accused was reliable.[6]
2. Criminal Law:
The criminal law permits the former wife who was aggrieved by the second marriage to file a complaint for bigamy. Section 494 of the IPC states that whoever marries a person while he or she is already married and his or her spouse is still alive and hasn’t obtained the decree of divorce, then the second marriage will be considered void, and the punishment set for this offence is 7 years imprisonment or a fine or both. The aforementioned section will not apply to anyone whose marriage to such a spouse has already been declared void by the court. Section 495 of the IPC talks about bigamy, and is punishable by 10 years of imprisonment or a fine or both. As section 415 of the IPC defines cheating, a complaint can also be filed under this section. So, if a person hides their first marriage as a secret, then this will be covered under the offence of cheating. It is very difficult to prove a second marriage in the eyes of the law, as many men exploit the loopholes in the law and use them as their defence to make their case stronger.
Case Laws:
- Naurang Singh v. Sapla Devi – AIR 1968 All 412
Held:
It was held in this case that Sapla Devi was the wife of Naurang Singh, so she was granted maintenance at the rate of Rs. 40 per month. She is also entitled to receive maintenance under Section 488 of the CrPC even if she’s lived with him for 12 years and had a child with him. Only women who are married in the eyes of the law are entitled to seek maintenance under this section.[7]
- In the case of Banshidhar Jha v Chhabi Chatterjee – AIR 1967 Patna 277
Held:
In this case, it was seen that the woman who was married to the petitioner sought maintenance under Section 488 of the CrPC. If the petitioner, on his date of marriage with the woman who sought maintenance, already had a legal wife prior to the claimant woman, the marriage with her would be declared void u/s 11 of HMA. Maintenance can only be sought if she is the legal wife of the husband from whom she has asked for maintenance. The claim that is being talked about here has nothing to do with the personal laws that have been amended by the Hindu Adoption and Maintenance Act of 1956, which does not provide any provision to seek maintenance with whom she has entered into a marriage that is void by nature, hence the claimant woman will also not be allowed to seek maintenance u/s 488.[8]
3. Evidence Act:
The evidence act allows the court to already assume the existence of probable facts, keeping in mind human regard and the common path of the events as well as common sense. This was seen in Section 114 of the IEA. In Sumitra Devi v. Bhikan Chaudhary[9], in this case, it was held that the couple had been living together for about a decade, hence they could be listed as husband and wife to each other. In Rangnath Parmeshwar v. Pandirao Mali[10], it was seen and held that if husband and wife were living as husband and wife, then, in the absence of proof, it would be seen that if the marriage they shared could be considered a valid marriage.
Case Laws:
- Sumitra Devi v. Bhikan Choudhary, AIR 1985 SC 765.
Held:
In this case, the parties had been living together for about a decade, and in the public records, they were also listed as husband and wife, while many of the witnesses had also described them as husband and wife. Hence, their case would be considered as the parties being listed as husband and wife.[11]
4. Maintenance under Section 125 CrPC:
Section 125 of the CrPC allows the wife to claim maintenance from her husband irrespective of the religion she follows. To actually prove the marriage, the court must examine whether the husband treated the woman as his wife in public. It is essential to determine whether any public records, such as voter cards or joint bank accounts, show that she is referred to as his wife, regardless of whether she is listed as his wife or not. In Samidurai v. Rajlakshmi[12], it was held that whenever the wife comes to the court seeking maintenance, the husband should not be permitted to misuse this opportunity by stating that he is already a part of a prior marriage, which makes his relationship shared with the aggrieved woman null.
In Mallika and Anr. v. P Kulandi[13], the court here noted and held that if the evidence presented in the court is enough to prove that the parties in the case had lived together for a reasonable time, then the wife would be allowed to seek maintenance from the husband and so would the child, which will also be considered as a legal child.
5. Hindu Personal Law:
The concept of bigamy is not only defined in the criminal laws but is also covered under Section 17 of the HMA, which is also punishable under Sections 494 and 495 of the IPC.
One more remedy that can be used by the second wife is to get her marriage annulled under Section 11 of HMA with reference to Section 5(1) of HMA.
Section 13 of the HMA provides the remedy for the second wife who seeks a divorce from her husband. Although in the cases of such marriages that happened before HMA was introduced, the second wife could ask for a divorce on the ground that her husband’s first wife was still alive during their marriage.
The law for interim maintenance u/s 24 of HMA does not specifically provide for the maintenance of the second wife, but this section has been interpreted exhaustively by the courts. And it was seen that the second wife could also ask for maintenance under this section. In Laxmibai v. Ayodhya Prasad[14], in this case, it was held and noted by the court that the terms “wife” and “husband” as read in Section 24, HMA, were not to be interpreted in their literal meaning as to only refer to legally married wife and husband. This expression could also include a couple that claimed each other as their wife or husband.
Section 25 of the HMA talks about permanent alimony. This provision has also been interpreted and discussed exhaustively by the courts to protect the rights and liberties of second wives. Even after the marriage has been declared null by the court, the second wife could still seek maintenance under this provision. It was noted and held in the case law of Rajesh Bai v. Shantabai[15] that a woman whose marriage is declared void by the court just because of the existence of another wife (prior or after her) is anyhow entitled to seek maintenance under this section from her husband as her right. Section 20 of the Hindu Adoption and Maintenance Act, 1956 (HAMA)[16] provides a remedy to the second wife to seek interim protection by the court. In Kulwant Kaur alias Preeti v. Prem Nath[17], in this case law, it was held and noted by the court that after considering the facts of the case, the court would allow the woman to seek interim maintenance under section 20 of HAMA. Under the Hindu Women’s Rights to Separate Residence and Maintenance Act, 1946, a Hindu married woman would be entitled to seek maintenance if her husband had participated in another marriage, provided that this happened before the introduction of the act. Although Section 18 of HAMA provides that there are many grounds on which a Hindu woman can seek maintenance from her husband before or after the Act of 1956.
The phrase “any other wife living” has been interpreted and understood exhaustively by various High Courts. In Satyanarayana v. Sseetheramama[18], in this case, the A.P. High Court held that “wife living” simply meant that the wife should be alive and it wasn’t necessary that she had to be living with the husband. However, in another decision of the Madras High Court on the other hand, in Annamalai Mudaliar v Perunayee Ammal[19], it was said that “wife living” meant that it was necessary for the wife to live with the husband. The Bombay High Court differentiated from the verdict of the Madras High Court, and in the case of Mani Bai v. Mukundrao[20], it was noted and held that u/s 18 of HAMA, the second wife had the right to claim a totally separate residence and maintenance from her husband under the following act.
CONCLUSION
As we are aware that society is still not accepting towards a second wife, and as there is no recognition provided to the second wife, she may have a chance to seek maintenance from her husband, and her getting the rights depends on the decision and view of the judges. Due to the absence of protection and recognition provided for women, these loopholes in the law are exploited by men to make their case even stronger in court.
But with the ongoing time and the timely changes and developments, taking into account the legal precedents, the lawmakers should be responsible and serious enough to make concrete provisions that would offer strong protection to the second wives and also to their rights, which would bring them justice in the eyes of the law as well as society.
[1] Hindu Marriage Act, 1955.
[2] Raghuveer Kumar v. Shanmukha Vadivar AIR 1971 Mad 330
[3] Indian Penal Code, 1860
[4] Lalchand Marwari v. Mahant Ram Rupgir (1926) 28 BOMLR 855
[5] Ishwar Singh v. Smt Hukam Kaur AIR 1965 All 464
[6] Trailokya Mohan Nath v. State and Anr AIR 1968 CriLJ 896
[7] Naurang Singh v. Sapla Devi AIR 1968 All 412
[8] Banshidhar Jha v. Chabbi Chatterjee AIR 1967 Pat 277
[9] Sumitra Devi v. Bhikan Chaudhary AIR 1985 SC 765
[10] Rangnath Parmeshwar v. Pandirao Mali 1996 AIR 1153
[11] Sumitra Devi v. Bhikan Chaudhary AIR 1985 SC 765
[12] Samidurai v. Rajlakshmi 1999 (2) ALT Cri 53
[13] Mallika and Anr. v. P Kulandi 2000 CriLJ 142
[14] Laxmibai v. Ayodhya Prasad AIR 1991 MP 47
[15] Rajesh Bai v. Shanta bai AIR 1982 Bom 231
[16] Hindu Adoption and Maintenance Act, 1956
[17] Preeti v. Prem Nath
[18] Satyanarayana v. Sseetheramma AIR 1972 Kant 247
[19] Annamalai Mudaliar v. Preunayee Ammal AIR 1965 Mad 139
[20] Mani Bai v. Mukundrao
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