• Opinion for a marriage

Hi there 

This is Ananya, I am a divorcee( 2years).I met a person 6months back and fell in love with a him, who did not got divorce yet. He got married to a divorced girl( daughter of his maternal uncle) . She is away (in USA)from him after a year from his marriage. They have been separated from 3.5 years, his wife have not been to INDIA since then( no calls and texts). He filed a divorce case against her a month ago. we got to know that she will not come back for sure. If I marry him what would the circumstances would me and my family face and how can we overcome it. Can we marry secretly or live together. Please give us some valuable suggestions. 

Thanks
Asked 3 months ago in Family Law from Hyderabad, Telangana
Religion: Hindu

This would be a third marriage for him and as he would be marrying you while being still married your marriage would be null and void in the eyes of the law.

First get divorce then move ahead. The guy could be jailed as bigamy is an offence.

You can live secretly.

Also make sure he is ready to divorce her.

Rahul Mishra
Advocate, Lucknow
7926 Answers
15 Consultations

5.0 on 5.0

You cannot marry during subsistence of his earlier marriage 

 

2) second marriage would be illegal and case of bigamy can be filed against you and your husband under section 494 of IPC 

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

See firstly you both can live in a live in relationship. Before his divorce you both van not marry if you do that will amount to bigamy and is a punishable offence.

He can talk to his wife and can ask for a mutual divorce from her.

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

Without obtaining divorce he cannot lead matrimonial life with another woman. It amounts to offence and his wife will file a criminal case against him for bigamy. First of all he must file a petition for grant of order of divorce in a competent court of law.

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

1. He will be liable to criminal prosecution for the offence of bigamy under Section 494 IPC. You may also be arrayed as an abettor in the case. Hence, let him first obtain a decree of divorce.

2. You are free though to live together.

Ashish Davessar
Advocate, Jaipur
28564 Answers
835 Consultations

5.0 on 5.0

Ananya,

Your marriage with the person, whose earlier marriage is not dissolved by the court of law, shall be INVALID


You can live with her since adultery is no longer a crime in India


Your marriage with her will be illegal, however, the children born out of said wedlock will be legitimate


Your marriage with her will be illegal, however, the children born out of said wedlock will be legitimate


Better to wait till he got divorce

Suneel Moudgil
Advocate, Haryana
2063 Answers
3 Consultations

4.7 on 5.0

Hi

There are options..

1. Marry and live together. Thats bigamy but it would only be a divorce ground for your lover to take divorce from his wife.

2. Live together as if you are in a live-in relationship and marry after he gets divorced. 

There are no chances that you would have to face some serious legal consequences after marrying him. 

So live together. 

Thanks 

Rahul Jatain
Advocate, Rohtak
2320 Answers
4 Consultations

4.9 on 5.0

It will be an illegal marriage. Tmrw if any issues happens you will have difficulties to get legal reliefs from him as he is not legally divorced. 

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

Till divorce not granted by court, your marriage with him will be void. But no problem to you and your family. You can live in - no offense.

But to have a valid marriage, let the court grant divorce first. IF she will not appear, well and good. Court will grant ex parte order within a year.

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

-  Under the Hindu Marriage Act, Separation is a ground of Divorce, if the husband and wife have been living separately for more than two years at the time of filing petition. 

- Further, if the separation is more than 2 years period, then even without a reason, is a ground for a Divorce decree.

- Even, if, she wanted to live with him in future , the court will grant divorce to the husband , because there is no relation as husband & wife since long period. 

- Since, he has already filed a divorce case, then the court will grant divorce within a short period of time , due to non appearance by his wife in the case. 

- As per section 17 of Bigamy Act, any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly.

- Hence, the marriage with you , without getting divorce from the first wife is not valid and attract Bigamy as per law. 

- The marriage with you will not create problem with you , as your relation will be considered just like a relationship between a man and woman , and which is legal now, but you will not get status of a wife legally.  

- Better to wait for divorce from his fist wife. Even an ex-parte divorce is also valid in India. 

 

Good luck and dont forget to rating Positively

Mohammed Shahzad
Advocate, Delhi
2488 Answers
33 Consultations

5.0 on 5.0

You can not marry that boy unless and until he gets divorce and get valid decree from competent court. If you marry with him under section 497 of Indian Penal code it will be an offence punishable up to 7 years. Court will not grant decree unless and until he serves legal notice of court. Even court will not allow divorce unless and until notice is served legally to his wife. If dare to marry with him secretly it will not remain secret in future. 

Raghuvir G. Chaudhary
Advocate, Ahmedabad
48 Answers
4 Consultations

5.0 on 5.0

Ananya,

I can understand your problem in this regard. Even though your boyfriend and his wife have been separated for four or more years, he cannot obtain a legal divorce without involving the family court. 

In Mr. Anuraj Mittal v Mrs. Shaily Mishra Mittal, Supreme Court has clarified that a second marriage is valid even if divorce proceedings of the first marriage are pending in court, provided that both parties from the first marriage have amicably parted and have decided not to contest the decision. Interpreting the Hindu Marriage Act, justices S.A. Bobde and L. Nageswara Rao, however, said, “The dissolution of the marriage is complete once the court finalises the order, subject of course to appeal. In case of dissolution of marriage, a second marriage shall be lawful only after the dismissal of the appeal”. The apex court’s judgment came on a plea wherein the second wife contested the marriage with her husband on the grounds that it took place before the appeal of his divorce was finalised.

Your boyfriend can pray for exparte divorce. I'm dealing with such cases in Hon'ble Supreme Court. 

You can live in a live-in relationship for now with him. I have observed that Indian judiciary has taken a lead to fill the gap that was created in absence of any specific statute relating to live-in relationships. It may be considered immoral in the eyes of society but it is not at all “illegal” in the eye of the law. The intention of Indian judiciary is to render justice to the partners of live-in relationships who, were earlier not protected by any statute when subjected to any abuse arising out of such relationships. Judiciary is neither expressly promoting such concept nor prohibiting such sort of relationships. It is, however, just concerned that there should not be any miscarriage of justice. Therefore, while deciding various cases, the judiciary has kept in mind various factors including both societal norms and constitutional values. 

Detailed discussion is required in such cases. 

In landmark case of S. Khushboo v. Kanniammal the Supreme Court held that a living relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.

 

You may contact my secretary to connect with me for clarification. 

 

Gopal Verma,

Advocate-on-Record & Amicus Curiae,

Supreme Court of India

Shri Gopal Verma
Advocate, New Delhi
239 Answers
3 Consultations

4.0 on 5.0

No you cannot marry during the subsistence of earlier marriage.  If you do that, it will lead to further complications.

If he can push his first wife to go for Mutual Consent Divorce, it will ease your position.

Just wait, let him take divorce and thereafter, you can get married.

S Srinivasa Prasad
Advocate, Hyderabad
1867 Answers
7 Consultations

5.0 on 5.0

The proposed marriage during the subsistence of marriage would be termed as null and void besides it would be an offence under section 494 IPC. 

Hence you first ask him to get his marriage dissolved by a decree of divorce and then get married to him. 

However there's no restriction to live with him without marrying him. 

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

1. If you marry that guy during his divorce proceedings then your marriage will be considered as null and void because of bigamy.

2. You can marry secretly but you will not get any benefits as a married woman until he gets divorce from his wife.

3. He can use you and later deny marrying you if he go for settlement with his current wife and then you can't even claim to be a legally married wife of that person. 

Mohit Kapoor
Advocate, Rohtak
7885 Answers
2 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that he has been married to a lady and that lady may not be returning back to India.
  2. And he has very rightly done for filing a divorce petition.
  3. But, would like to apprise you that you should not marry him till the time divorce decree is obtained as if you happen to them that would be illegal marriage and you can’t even claim any right in future for being a married lady to him.
  4. If she doesn’t come then after two to three hearings the matter would be ex parte and then you can get married as per law.

Sanjay Baniwal
Advocate, South Delhi
5209 Answers
12 Consultations

5.0 on 5.0

Dear Sir,

Without divorce second marriage is an offence under section 494 of ipc. ... u cannot re-marry without getting divorce, from first wife, by court order. 2. u can file divorce petition in india from abroad through POA.

No there is no provision during this period, what is the situation of your divorce matter right now? Until unless before the final judgement you cannot remarry. But you can put your matter on fast track basis.

If the man do second marriage before getting divorce from its first wife, its legally punishable.

Netravathi Kalaskar
Advocate, Bangalore
4953 Answers
25 Consultations

4.8 on 5.0

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