Engaging in a second marriage when the first marriage has not been dissolved 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’ in some sections is still is a common practice in the Indian society. As a result of the aforementioned contrast between the law and social practice, second wives have little protection under the law. The objective of this article is to examine the rights available to the second wives in terms of maintenance under personal law as well as under the Criminal Procedure Code, and also to discuss the provisions of the Indian Penal Code which are applicable in such cases.
From Vedic times, though monogamy is the rule, polygamy has, as an exception, existed. But the wife who was wedded first was alone the wife in the fullest sense. One text of Manu seems to indicate that therewas a time when a second marriage was allowed to a man after the death of his former wife. Another set of texts justify a husband in 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only when a wife was barren, diseased or vicious that she could be superseded and a second marriage was valid; as also when she consented. Other passages provide for a plurality of wives, even of different classes, without any restriction.
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 could, without any restriction, marry again while his previous marriage subsisted ( hereinafter ‘second marriage’) without his wife’s consent and justification.
Custom, however, prevented the second marriage without the consent of the first wife and without making provision for her. It was held in Raghveer Kumar Vs. Shanmukha
Vadivar (1971 Mad 330), that a custom, prevalent amongst Nadars in Udumalapeta Taluk, preventing a second marriage, even if established, cannot have the force of law.
INDIAN LAW AFTER 1955
With the commencement of Hindu Marriage Act, 1955 (hereinafter ‘HMA’), one of the conditions provided 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 was alive unless custom permitted her. There was no such bar against men till some states passed laws for prevention of bigamous marriages, so as to introduce the principle of monogamy among Hindus. After 1955, with the help of the aforementioned provision read with Section 11 of the HMA, 1955, the second marriage can be declared null and void ab initio. For this it is necessary to prove firstly that the second marriage is a valid marriage, but for this provision, and secondly that the spouse of the first marriage was a legally wedded spouse and that marriage was subsisting on the date of the second marriage. The onus of proof in such cases is on the person who applies for a decree of nullity. 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 that such a spouse is dead and in such an event, another spouse can marry a second time on the ground that the former marriage is dissolved by the civil death of the spouse. This was said in Lalchand Narwali Vs. Mahant Ram Rupgir (1925 TLR PE 159). 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 marriage declared as null and void.
One of the conditions provided for a valid marriage was that neither party should have a spouse living at the time of the marriage.
Under the criminal law, the second wife can file a complaint for bigamy. Section 494 of the IPC explains bigamy as marriage by either the husband or the wife during the subsistence of the marriage of the person. The second marriage contracted by such a person is void and the same is also an offence punishable with imprisonment up to 7 years or a fine, or both. This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction. Under Section 495 of the IPC, bigamy committed after concealing the fact of the first marriage from the subsequent spouse amounts to an offence which is
punishable with 10 years imprisonment or a fine, or both. A complaint can also be filed for cheating under Section 415 of the IPC. Cheating is defined as fraudulently or dishonestly 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, and which act or omission causes or is 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, a complaint can also be filed for the offence of cheating.
INDIAN EVIDENCE ACT, 1872
Under Section 114 of the Indian Evidence Act, the Court shall presume the existence of probable facts, with regard to human conduct and the common course of the events, and common sense being used as the judicial tol. In Sumitra Devi Vs. Bhikan Chaudhary[(1985)1 SCC 637], it was said that the fact that the couple is living as husband and wife for decades is relevant in proving factum of their marriage. Again in Rangnath Parmeshwar Vs. Pandirao Mali[(1996)7 SCC 681], it was said “if H and W are living as husband and wife, in such circumstances even in the absence of proof, it was held that a rebuttable presumption would arise that the marriage between them was valid.”
MAINTENANCE UNDER SECTION 125 CRPC
A wife can claim maintenance from her husband, irrespective of her religion, under Section 125 of the CrPC. To prove the factum of marriage between the husband and the wife, we must rely on how the husband has treated the woman as his wife before the whole world. Accordingly, the Voter’s Identity Card, wherein she has been referred to as his wife, or the joint bank account, or even for that matter the police complaints wherein he has stated that she is his wife can be used to prove that she is his wife. In Samidurai Vs. Rajalakshmi, it was held that when a 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, and to avoid his liability to pay maintenance, walk out of the court on the ground that the marriage between him and the wife claiming maintenance is a nullity. In Mallika and Anr. Vs. P. Kulandai [1(2001)DMC 354], the Madras High Court held that it is sufficient if evidence is available to the effect that parties lived together for a considerable time. It is 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 second marriage would be a legitimate child.
HINDU PERSONAL LAW
Bigamy is defined as an offence not only under the criminal law but also under the HMA. Section 17 of the 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 in accordance with Sections 494 and 495 of the IPC, asdiscussed above. Another option available to the second wife is to getthe marriage annulled under Section 11 r/w Section 5(1) of the HMA. Section 5 of the HMA provides for the conditions for a valid marriage, one of which is that neither spouse should have a spouse living at the time of the marriage. Accordingly,
if a marriage is contracted while either party has a spouse living, the same can be annulled under Section 11 of the HMA.
The provisions for divorce under Section 13 of the HMA also discuss the remedy available to the second wife.The second part of Section 13 (2)(i) of the HMA says that in cases of marriages before the 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 interim maintenance under Section 24 of the HMA does not categorically provide for maintenance for the 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 wife can also claim interim maintenance under interpretation given to Section 24 of the HMA. In Laxmibai Vs. Ayodhya Prasad (AIR 1991 MP 47), it was held that ‘wife’ and ‘husband’, as used in Sec 24 HMA, have not to be given strict literal meaning as to convey only a legally married wife and husband. The expression ‘wife and husband’ is in the context of the section and the scheme of the Act should mean a person claiming to be a wife or husband. Similarly, the provision for permanent alimony under Section 25 of the HMA has also been interpreted widely by the Courts to protect the rights of second wives. After the declaration of nullity of a marriage, the second wife could claim maintenance under Section 25 HMA. It was held in Rajesh Bai Vs. Shantabai(1982 Bom 231), 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 (hereinafter ‘HAMA”). In Kulwant Kaur alias Preeti Vs. Prem Nath [2002 (1) HLR], it was said “no sane lady would surrender herself unless she treats her male companion as her husband – whether the marriage is proved or not, that is a 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.”
The law for interim maintenance under Section 24 of the HMA does not categorically provide for maintenance for the second wife, the section has been given a wide interpretation by the ourts to bring the cases of second wives within its ambit.
Under the 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, but Section 18 of the HAMA amended this and said 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 has 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 Vs. Seetharamamma[1963 AP 270(FB)], the Andhra Pradesh High Court held that ‘wife living’ meant existing or alive and not necessarily living with the husband. The Madras High Court, on the other hand, in Annamalai Mudaliar v. Perunayee Ammal(1965 Mad 139), said that ‘wife living’ necessarily meant living with the husband. However, the AP High Court’s view is preferable. The Bombay High Court in Mani Bai Vs. Mukundarao(1981 HLR 676), dissented from the decision in the Madras High Court’s case. Under Section 18 of the HAMA, the second wife can also claim a separate residence and maintenance under this Act. The same was held in Mani Bai v. Mukundarao.
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 the woman. Even though there is no recognition given to the secod wife under the law, due to the judicial interpretations of the 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 getting her rights are also largely dependent on the discretion of the judges. Even under the criminal law, it is extremely difficult to prove bigamy as the marriage has to be validly performed to prove the offence of bigamy. Usually men find loop holes in the law to defend themselves on this very ground. For the above mentioned grounds, the law-makers should make clear provisions to protect the rights of those women who have been duped into second marriages in such a manner and bring them some respite.