Second Marriages Invalid under Hindu Marriage Act if Spouse Is Alive, Regardless of Consent

The Delhi High Court recently made a ruling stating that a second marriage is not allowed when either party from a previous marriage is still alive, according to Section 5(i) of the Hindu Marriage Act, 1955. In simple terms, if you or your spouse from your first marriage is still alive, you can’t have a second marriage. The court emphasized that even if both parties agree, their consent doesn’t make the second marriage valid. This decision was given by a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna.

“In case, there is a violation of this condition, the marriage is void in terms of Section 11 of HMA, 1955. Once there is a legal bar to the performance of the second marriage, the consent of the parties cannot confer the validity to a marriage held in violation of the condition specified in Section 5(i) of HMA, 1955.”

Section 5(i) states that neither party should have a spouse living at the time of marriage.

The court’s observations were rendered in the context of the dismissal of a petition brought forth by a wife contesting a family court ruling that had adjudged her marriage with her husband as null and void.

The parties in question entered into matrimony in 2009. It is essential to highlight the wife’s prior marriage, which culminated in divorce in 2008, followed by an appeal initiated by her former husband.

The wife conceded her awareness of her former husband’s pending appeal in December 2008, although the said appeal was not withdrawn until the year 2012. Subsequently, owing to the discord within their second marriage, the second husband initiated legal proceedings to declare the marriage as null and void, citing the continued existence of the wife’s first marriage. He contended that the marriage during the subsistence of the first marriage was devoid of legal validity.

The family court, in its contentious judgment, concluded that, given the unresolved status of the first husband’s appeal at the time of the second marriage, the latter was void ab initio.

In upholding this judgment, the bench underscored the wife’s unequivocal awareness of her former husband’s pending appeal at the time of contracting her second marriage in 2009.

“In the present case, the parties had got married during the pendency of the Appeal that was in the knowledge of both the parties. Therefore, in terms of Section 15 of HMA, 1955, it has to be held that the dissolution of the first marriage was not confirmed and the marriage was subsisting on the date of marriage of the appellant with the respondent herein on 28.04.2009 which was in contravention of Section 5(i) of HMA, 1955,” the court said.

Furthermore, despite the fact that the wife had already entered into a marriage with her second husband, she sought maintenance from her first husband during the ongoing appeal, which was awarded to her in September 2009.

“The very fact that the appellant had not only claimed but also accepted pendente lite maintenance during the Appeal from the first husband fortifies that the marriage was not finally dissolved. The learned Judge, Family Court has, therefore, rightly declared the marriage between the parties as nullity under Section 11 of HMA, 1955,” the court said.