Rights of Second Wife - With reference to Bigamous Marriage in India

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.

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