If you are stuck in such a situation, here is what to do.

A gentleman, Mr. Alok, finds himself in a complex personal and legal situation. He has been separated from his first wife, Mrs. Kavita, for over four years. Their marriage was short-lived, and the separation has been acrimonious, with Mrs. Kavita filing cases for cruelty and maintenance against him. She is also demanding a substantial amount as a one-time settlement for a divorce.

In the meantime, Mr. Alok has fallen in love with Ms. Meera, a widow with a young child. They wish to marry, primarily to provide a stable family environment for the child, whose school admission is approaching. They are contemplating a religious marriage ceremony without legal registration, intending to register it only after Mr. Alok’s divorce from Mrs. Kavita is finalized. The core issue is understanding the legal ramifications of such a step, especially the actions Mrs. Kavita could take, and whether Mr. Alok can legally adopt Ms. Meera’s child under the current circumstances.

Advice in such cases

Entering into a second marriage while the first marriage is still legally subsisting is illegal in India for Hindus, Christians, Parsis, and under the Special Marriage Act. Such a marriage is considered void from the very beginning (void ab initio) and constitutes the criminal offense of bigamy. A religious ceremony, if it includes the essential rites required for a valid marriage under that religion, is sufficient to constitute a “marriage” for the purpose of bigamy laws. The lack of registration does not make it legal.

Applicable Sections of Law

Understanding the legal framework is crucial. The following laws are pertinent to this situation:

• Bharatiya Nyaya Sanhita (BNS), 2023: Section 81 of the BNS (which replaces Section 494 of the IPC) criminalizes bigamy. It states that anyone who marries during the lifetime of their husband or wife, where such marriage is void due to the subsistence of the first marriage, shall be punished with imprisonment which may extend to seven years, and shall also be liable to a fine.
• Hindu Marriage Act, 1955: Section 5(i) of the Act clearly states a condition for a valid Hindu marriage is that neither party has a spouse living at the time of the marriage. Section 11 declares any marriage solemnized in contravention of this condition as null and void. Section 17 directly invokes the penalty for bigamy as prescribed under the BNS.
• Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: The provisions for maintenance for the wife (formerly Section 125 CrPC) are contained within the BNSS. The first wife’s right to claim maintenance is not extinguished by the husband’s second, void marriage.
• Hindu Adoptions and Maintenance Act, 1956: This Act governs the process of adoption. For a married man to adopt a child, the consent of his living wife is mandatory.

If you are the complainant

If you are in a position similar to Mr. Alok’s, it is imperative to proceed with extreme caution and prioritize legality over emotional timelines.

• Do Not Marry: Under no circumstances should you enter into a second marriage, whether ritualistic or registered, before obtaining a valid decree of divorce from the court. Doing so will expose you to criminal prosecution for bigamy and will severely complicate your legal position.
• Focus on the Divorce: Your primary goal should be to legally end the first marriage. You can either negotiate a settlement with your first wife for a divorce by mutual consent or vigorously contest the cases she has filed to seek a divorce on grounds like desertion or cruelty.
• Adoption is Not an Option Yet: You cannot legally adopt your partner’s child while you are still married to your first wife without her consent. The adoption would be legally invalid. You must wait until after your divorce is finalized.
• Consult with Lawyer: The very basic and important step to start is to talk to a Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved in 7-10 days.

If you are the victim

If you are the first wife, like Mrs. Kavita, and your husband remarries without divorcing you, you have several legal remedies available.

• File a Complaint for Bigamy: You can file a private complaint before a Magistrate’s court against your husband for the offense of bigamy under Section 81 of the BNS.
• Declare the Second Marriage Void: You can file a petition in the family court seeking a declaration that your husband’s second marriage is null and void under the Hindu Marriage Act, 1955.
• Strengthen Existing Cases: The act of a second marriage is a significant act of mental cruelty. You can use this fact as additional evidence in your ongoing case for cruelty and it can also be a ground for divorce in itself.
• Claim Maintenance: Your right to maintenance remains unaffected. Your husband cannot use his new financial responsibilities towards his second partner as a reason to deny or reduce your maintenance.

How the police behave in such cases

The offense of bigamy under Section 81 of the BNS is a non-cognizable offense. This means the police cannot register an FIR or make an arrest without a warrant from the court. The aggrieved first spouse must file a private complaint directly with a Judicial Magistrate. The court will then record the statement of the complainant, conduct an inquiry, and if it finds a prima facie case, it will issue a summons to the accused person (the husband). The police role is generally limited to conducting an investigation if directed by the court.

FAQs people normally have

What evidence is required?

To prove bigamy, the first wife needs to establish:

• Proof of her own valid and subsisting marriage to the husband (marriage certificate, photographs, witness testimony).
• Proof of the second marriage having taken place (photographs, videos of the ceremony, invitation cards, statements from guests or the priest who performed the ceremony).
• Proof that the first marriage had not been dissolved by a decree of divorce at the time of the second marriage.

How long will the investigation take?

The legal process for a bigamy complaint is not swift. Since it begins with a private complaint in court, the timeline depends on the court’s schedule. From filing the complaint to the court taking cognizance, issuing summons, and the trial beginning, the process can take many months, and the trial itself can extend for several years.

Advocate Sudhir Rao, Supreme Court of India