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.
A second wife has all the legal rights on her husband’s property, provided her husband’s first wife had already passed away or divorced before the husband remarried. Her children have equal rights on their father’s share as do the children borne of the first marriage. In case the second marriage is not legal, neither the second wife nor her children enjoy the privilege of being legal heirs in the ancestral property of the husband.
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.
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.
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.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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