Consequences of remarrying before getting a divorce?

Consequences of Remarrying Before Getting a Divorce in India

In India, the legal framework concerning marriage and divorce is governed by various personal laws, such as the Hindu Marriage Act, 1955, Muslim Personal Law, Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936, and the Special Marriage Act, 1954. Remarrying before obtaining a legal divorce from a previous marriage has significant legal, social, and financial consequences.

Here’s a detailed discussion:

1. Legal Consequences

Bigamy Under Bharatiya Nyaya Sanhita, 2023:
Section 82 of the BNS explicitly prohibits bigamy (the act of marrying someone while still legally married to another person). The consequences include:

Criminal Offense: Remarrying without obtaining a divorce is considered bigamy and is punishable with up to 7 years of imprisonment, a fine, or both.
Void Marriage: The second marriage is considered null and void under Section 11 of the Hindu Marriage Act, 1955, and Section 24 of the Special Marriage Act, 1954.
Impact on Property Rights: The second spouse has no legal status in the eyes of the law, and any claim on property or inheritance from the first marriage may be invalidated.
Rights of Children: While the second marriage is void, children born out of such a marriage are considered legitimate under Section 16 of the Hindu Marriage Act, 1955. However, their inheritance rights are limited to the properties of the parents, not ancestral property.

2. Religious Personal Laws

Hindu Marriage Act, 1955:
Bigamy is prohibited under Section 5(i), which states that neither party to the marriage should have a living spouse at the time of marriage.
Remarrying while the first spouse is alive without a valid divorce renders the second marriage void.
Muslim Personal Law:
Muslim men are permitted to have up to four wives simultaneously, but they must follow specific conditions. Muslim women, however, cannot remarry without obtaining a divorce.
If a woman remarries without completing the iddat period (waiting period after divorce or death of the spouse), the second marriage is not valid.
Christian Marriage Act, 1872:
Section 60 requires a certificate of divorce for remarriage. Without this, remarriage constitutes bigamy and is punishable under Section 82 of the BNS
Parsi Marriage and Divorce Act, 1936:
Remarriage without obtaining a valid divorce is a punishable offense under this Act.
Special Marriage Act, 1954:
Bigamy is prohibited, and remarriage without divorce makes the second marriage void.

3. Social Consequences

Loss of Social Standing: Individuals who remarry without a legal divorce often face social ostracization and stigma.
Emotional and Family Strain: Such actions can lead to severe conflicts between the first and second spouses, affecting family relationships.
Impact on Children: The children from both marriages may face psychological and social challenges due to the legal and emotional complications.

4. Financial Consequences

No Legal Rights for Second Spouse: The second spouse has no legal claim over the individual’s property or assets.
Maintenance Issues: The first spouse can claim maintenance, and this may financially burden the individual engaging in a second marriage.
Inheritance Disputes: The lack of legal status for the second spouse may result in inheritance disputes, affecting all parties involved.

5. Remedies and Legal Actions

Annulment of Second Marriage: The second spouse can approach the court to declare the marriage void under the applicable personal laws.
Criminal Prosecution for Bigamy: The first spouse can file a criminal case under Section 82 of the BNS.
Maintenance Claims: The first spouse and children can claim maintenance under Section 125 of the Criminal Procedure Code (CrPC).

6. Preventive Measures

Obtain a Legal Divorce: Ensure that the previous marriage is legally dissolved through a valid divorce decree before remarrying.
Legal Advice: Consult a lawyer to understand the implications of remarriage in the context of personal and criminal laws.
Proof of Divorce: Keep official records, such as the certified copy of the divorce decree, to avoid any legal complications.

FAQs on Remarrying Before Divorce

Q1: What happens if I remarry before obtaining a divorce?
A1: Remarrying before obtaining a divorce constitutes bigamy, which is a criminal offense under Section 82 of the BNS. The second marriage is void, and you may face imprisonment, fines, or both.

Q2: Is the second spouse entitled to any legal rights?
A2: No, the second spouse has no legal status or rights unless the first marriage is legally dissolved. However, children born out of the second marriage are considered legitimate.

Q3: Can the first spouse file a complaint for bigamy?
A3: Yes, the first spouse can file a criminal complaint under Section 82 of the BNS for bigamy, leading to legal action and potential imprisonment.

Q4: Are there any exceptions to bigamy laws in India?
A4: Bigamy is permitted under Muslim personal law for men (up to four wives) but is subject to specific conditions. For all other religions, remarriage without divorce is prohibited.

Q5: What if the second spouse was unaware of the existing marriage?
A5: The second spouse can file for annulment of the marriage and may also file a criminal case against the person for fraud.

Q6: What happens to the children born from a second marriage?
A6: Children born out of a void marriage are considered legitimate under Section 16 of the Hindu Marriage Act, 1955, but their inheritance rights are limited to the property of their parents.

Q7: Can a person claim maintenance from their second spouse?
A7: No, a person cannot claim maintenance from a second spouse in a void marriage. However, the first spouse and children from the first marriage can claim maintenance.

Q8: Can a second marriage be valid if the first spouse gives consent?
A8: No, the consent of the first spouse does not validate a second marriage unless the first marriage is legally dissolved.

Q9: Can the first marriage be dissolved automatically after remarriage?
A9: No, the first marriage does not dissolve automatically. A valid divorce decree is necessary to terminate the first marriage legally.

Q10: How can someone prove bigamy in court?
A10: To prove bigamy, the complainant must show evidence of the first marriage (marriage certificate, photographs, or witnesses) and evidence of the second marriage (ceremony details, witnesses, or registration).

Q11: Is it possible to remarry while a divorce case is pending in court?
A11: No, remarrying while a divorce case is pending is considered bigamy. You must wait until the court issues a final divorce decree.

Q12: Can a person be punished under bigamy laws if they are living separately from their first spouse?
A12: Yes, separation does not dissolve a marriage. Until a divorce decree is obtained, the first marriage remains valid, and remarriage constitutes bigamy.

Conclusion

Remarrying before obtaining a legal divorce can have severe legal, social, and financial repercussions in India. It violates personal laws and the Indian Penal Code, leading to criminal prosecution, nullification of the second marriage, and property disputes. To avoid complications, individuals must ensure that their first marriage is legally dissolved through a valid divorce decree before entering into a new marriage. Consulting a legal expert is essential to navigate these complex issues effectively.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304