• Family dispute

I did second marriage. Without getting divorce from first however now it is done but I am again facing lot of issue from second wife. My second wife is MBA qualified and did job in HDFC bank. I am having.my own flat and paying EMI for the same. If I want divorce from marriage, then what would be the consequences and kindly reply on my below query.we are having a baby for 6 month. 

1: What is the status of my marriage in eye of law
2: can second wife file 498a case against me or my family
3: can secind wife takeover my flat from me
4: She is MBA qualified and did job in banking so she still can get alumni as she is currently not doing any job
5: who will get custody of baby
what should i do in this situation kindly suggest.
Asked 1 year ago in Family Law
Religion: Hindu

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14 Answers

Your second marriage is illegal as performed during subsistence of earlier marriage 

 

2) she can file 498A case against you and your family 

 

3) she can claim right to stay in flat 

 

4) you can seek joint custody of your baby 

 

5) wife can seek maintenance if she is unable to maintain herself 

Ajay Sethi
Advocate, Mumbai
94649 Answers
7522 Consultations

5.0 on 5.0

1. If the second marriage was done without getting divorce from the first wife , then the second marriage is not legal , except a relationship. 

2. Since, at the time of second marriage , the divorce was not granted from the first wife , then the second wife is not legally wife , and hence she cannot lodge an FIR under section 498A

3. No. She not having any right to claim , except she can claim maintenance and residential right on the ground of relationship , and if the said relationship is for longer period. 

4. No, a highly educated wife cannot claim maintenance if she is sitting idle 

5. Either of the parties , but if baby will go to her , then you are bound to pay the maintenance to baby 

Mohammed Shahzad
Advocate, Delhi
13189 Answers
197 Consultations

5.0 on 5.0

If she was having knowledge of your first marriage she cant file the same

She can claim maintenance in domestic violence case if court finds it proper 

You can bring in record her qualification and job gi object maintenance/alimony

Custody will be decided separately on merits. Generally mother gets tye custody if child is young 

 

Prashant Nayak
Advocate, Mumbai
31905 Answers
179 Consultations

4.1 on 5.0

1. It's void at the option of your wife.

2. Yes 

3. No 

4. If she is qualified and not working by choice, then she won't get maintenance if proved that she is not working jist to get maintenance.

5. Custody of children below 5 years generally go to the mother but the child's welfare is considered as the most important criteria during custody cases. 

 

 

 

Siddharth Jain
Advocate, New Delhi
6303 Answers
102 Consultations

5.0 on 5.0

1. You contracted the second marriage during the subsistence of the existing marriage, hence it can be null and void in the eyes of law.

2. Yes, if she finds a reason to do so.

3. If it is on your name then she has no rights in the property 

4. If she is not employed and having no income to sustain her expenses then she may become eligible for monthly maintenance.

5. Child custody will be decided by court on filing an application for child custody under the provisions of G & Wards act.

 

T Kalaiselvan
Advocate, Vellore
84849 Answers
2185 Consultations

5.0 on 5.0

Dear client I am sorry to hear that but in this case your second marriage is not valid as you haven't got divorced from your first marriage. Further since your second wife is not legally your wife there force we cannot file case under section 498A. Simply she cannot enjoy the benefit of being a wife as you are not legally married to her however a case of by give me can we file against you as well as a case of harassment. Father child born out of that marriage will be handed over to the wife or the women that you have married 

Anik Miu
Advocate, Bangalore
8821 Answers
110 Consultations

4.7 on 5.0

The second marriage is a nullity ie does not exist in the eyes of the law. Moreover your 1st wife can file a case of bigamy against you which is a punishable offence.

Yes she can.

No she cannot take away your flat if it is in your name.

She won't get any alimony as she is not your wife but the court may grant her compensation which is kind of alimony.

Wfie will get custody most probably unless you have a strong case for Custody.

You should talk to a lawyer and explain the situation as to how you got into this mess. Take divorce from 1st. Separate from the second. There are many ways too which are legal but which cannot be explained here.

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

1. Second marriage subsisting first marriage is not at a marriage. It is null and void. 

2. She can certainly file such complaint, you cannot claim that as marriage is not valid, 498A is not attracted. The principle of is, "one cannot get advantage of his wrong."

3. She can take your properties. 

4. She is not entitled to any maintenance but she will get alimony. 

5. Second wife will get custody of baby under Section 6 (b) of HMGA. 

Settle the dispute out of Court with both. First wife can file criminal complaint under Section 494 for which punishment is jail up to seven years. You can settle with both out of Court. 

Ravi Shinde
Advocate, Hyderabad
4041 Answers
42 Consultations

5.0 on 5.0

If you fail to pay EMI bank would auction the flat and if there is  any surplus it would be paid to you 

 

2) wife can file case of bigamy against you as second marriage performed during subsistence of earlier marriage 

 

3) she can also file DV case against you seek protection order ,right to stay in matrimonial home ,maintenance 

 

4) your mother can file police complaint against daughter in law if she has assaulted her 

Ajay Sethi
Advocate, Mumbai
94649 Answers
7522 Consultations

5.0 on 5.0

If you default in loan repayment then the bank may invoke the provisions of sarfaesi act to recover the loan amount along with the interest accrued till the date of realisation.

In that situation if the auction sale proceeds are in excess to the outstanding loan amount then the bank may refund the excess amount to the borrower. 

If she is creating problem then you can challenge them legally as per law.

There is no provision in law that you have to live together with her against your willingness. 

If she has beaten your mother, your mother can lodge a criminal complaint against her with the police besides filing a DV case. 

A divorce case on the grounds of cruelty will be a relief to you forever.  

T Kalaiselvan
Advocate, Vellore
84849 Answers
2185 Consultations

5.0 on 5.0

Dear client I am sorry to hear that but in this case your second marriage is not valid as you haven't got divorced from your first marriage. Further since your second wife is not legally your wife there force we cannot file case under section 498A. Simply she cannot enjoy the benefit of being a wife as you are not legally married to her however a case of by give me can we file against you as well as a case of harassment. Father child born out of that marriage will be handed over to the wife or the women that you have married 

 

 

 

Anik Miu
Advocate, Bangalore
8821 Answers
110 Consultations

4.7 on 5.0

She may file domestic violence complaint and a fir for mental cruelty against you. 

She may also file a case of fraud and cheating and criminal breach of trust...fir.

A case for bigamy which is an offence.

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

Any person should pay emi else house will be gone 

You can take order from court and stay separately if you want Divorce 

She can file false domestic violence case

 

 

Prashant Nayak
Advocate, Mumbai
31905 Answers
179 Consultations

4.1 on 5.0

- The bank can auction the said flat , if you will stop to pay the emi for more than 3 months 

- Further, the bank will recover the amount of principal with up-to-date interest ,and the balance will be remitted to you upon selling the property . 

- Further, you can also sell the said flat after informing the bank to adjust the loan amount . 

- She cannot claim amount of the sale proceed if that flat is only in your name , and even she cannot get stay order from the court .

- Your mother can file a compliant against her under the provision of DV Act for her harassment . 

Mohammed Shahzad
Advocate, Delhi
13189 Answers
197 Consultations

5.0 on 5.0

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