• Can I marry a married women ?

Hi Experts,

I am stuck in a dilemma and need your advice. I am in a relationship with a girl and we are planning to get married sometime this year or should I say want to get married this year. Problem is she was married when she was young and not yet divorced. She was 15 when she got married(in 2005) as usual due to family pressure. And 3 years later(in 2008), she gave birth to her daughter and finally when she was mature enough, left her husband in 2011. Since then, she is living separately with her family. She never wanted to marry him/ live with him in the first place. But under family pressure, she had no other option as she was still kid that time. Her husband never got a marriage certificate as it was denied by the authorities, since she was not 18 at that time. She has a refusal certifcate with her. Her husband is not ready to give her divorce so mutual consent divorce is out of picture. Only possible way is to file a contested divorce which she already has done. But no results so far. I am in a tough situation here. I want to marry her. But I cannot as she is still married. My first question : Is her marriage really valid as she was not 18 that time? And If it is,how can she get a divorce ? Please advise.
Asked 7 years ago in Civil Law

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7 Answers

1) if girl was minor at time of marriage within period of 2 years of attaining majority she could have file petition for anullment of marriage under provisions of section 3 of PCM act

2) under section 5 of HMA one of conditions of valid marriage is bridegroom should be 21 and bride 18 years of age

3) since girl has not filed any petition for so many years her marriage would be valid

4) wife should file for divorce on grounds of mental cruelty .

5) contested divorce cases take 5 years to be disposed of

Ajay Sethi
Advocate, Mumbai
95220 Answers
7612 Consultations

5.0 on 5.0

1. Do note that if you marry a woman who has not taken divorce as yet you can be prosecuted for bigamy u/s 497 IPC.

2. underag marriage entail prosecution but the marriage itself is valid.

3. So wait till she gets divorce and then marry her.

Devajyoti Barman
Advocate, Kolkata
22921 Answers
498 Consultations

5.0 on 5.0

1. She is married but her said marriage is illegal hence void at law because of her being below the marriageable age at the time of her said marriage.

2. She should have filed a petition for annulment of her marriage within one year after attaining her marriageable age.

3. However, she shall have to get the decree of divorce for marrying you legally.

4. Hope she has already filed the divorce suit u/s 13(2)(iv) of HM Act, 1955 and ask her lawyer to pursue the case aggressively to ensure earlier hearing.

5. Once she gets the decree of divorce she can marry you and not before that as per law.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

even if you marry her in USA your marriage would be illegal as she is already a married lady

2) let her divorce be finalised and then marry her

Ajay Sethi
Advocate, Mumbai
95220 Answers
7612 Consultations

5.0 on 5.0

Her marriage before she attained the age of 18 years is void. However, as she had cohabited with her husband she should obtain a decree of annulment from the competent court and then only marry you. It was a misconceived idea to file for divorce, she ought to have filed for a declaration of the marriage being null and void. In view of the fact that she has now filed for contested divorce, you cannot marry her unless the court dissolves the marriage through a decree of divorce.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

My first question : Is her marriage really valid as she was not 18 that time? And If it is,how can she get a divorce ?

The question of validity of her marriage at this stage does not arise especially when she accepted the marriage and begotten child out of the said wedlock.

The marriage certificate alone cannot be a proof of marriage, the ceremonies and the witnesses to the marriage shall establish the valid marriage.

Since she has applied for divorce, she has to wait for the disposal of the same by the court for moving further in this issue.

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

I have one more last question. Since I am living in US and she will live with me once married. Can we get married here instead ? I know she would still be treated as married if in India. But if I marry her here, would our marriage be valid ?

Any marriage contracted with her during the subsistence of her previous marriage and spouse living would be null and void.

In fact her husband may even file a criminal case under section 494 IPC for the bigamy offences.

Hence do not risk into such ventures.

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

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