• Marrying a never married man with a son out of wedlock

Looking at marrying a legally never married man aged 43 years now in India, previously in USA who was in a relationship with a usa citizen Indian woman for 13 years in 1994 and has a 12 year son out of wedlock which is in the woman's possession now. There is no record of their marriage in USA hospital, court etc or online according to the man. I am 39 years old never married woman with no issues. Will I have any problems with official marriage, divorce if things don't work out (since I know him only for last few months) children or inheritance in the future?
Asked 10 months ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
if there is no record for his previous marriage and the child was born due to only live in relationship then there is no problem but it will be better to execute a prenuptial agreement before the marriage.

(A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well. It should not be confused with the historic marriage settlement which was concerned not primarily with the effects of divorce but with the establishment and maintaining of dynastic families).

feel free to call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
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There must be some evidence of his marriage such as photographs of marriage or a certificate issued by Arya Samaj if it was an Arya Samaj marriage. Crime leaves its traces behind. If his wife launches a prosecution for bigamy he may be imprisoned for up to 7 years whereas your marriage to him will be rendered illegal. Tell him to first obtain divorce.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) if your fiancee has never married you should not have any problems in getting married 

2) if your fiancee has suppressed material facts of earlier marriage and you come to know said fact after marriage you can file for annulment within period of one year of discovery of fraud 

3(son from previous relationship will have share on your husband property on his demise 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
Hi

The marriage certificate or record in any of the authorities is not the deciding factor of his marital status. What if he has carried the child's mother in religious ceremony and did not register the same any where. That marriage is also Legally  valid.
So it is advisable that he get a divorce from the lady.if he has not married her what about her, is she married to anyone else. Do a background check  and speak to the woman directly to file out the future trouble of a void marriage
The child will be his one legal heir whether it  is born in the Wed lock or outside
The lady child can claim maintenance from himin the future and  the child can get till it is 18.
Property rights are decided and applied in the same way if he has any other children in a legal marriage in the future.
So you need to be very careful and vigilant and find out his marital status.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
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1. You shall have no problem for his having a son out of wedlock,

2. His son will inherit equal share of his property along with all his legal heirs (i.e. you and your children through him) if dies intestate,

3. However, his said son will have no claim on the ancestral properties of your would be husband which will be inherited by your children only.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
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A marriage remains valid of that is done as per Hindu rites and customs.
Even if  no formal marriage ceremony is performed a long relationship/cohabitation is akin to marriage and the court considers then to be legally married husband and wife as far respective legal rights are concerned.
Even if there is no hospital record is there it takes only few weeks to determine the biological father of the child by way of DNA test.
So in other words if you marry that man , the lady can very well claim to be first wife and since she is not legally divorce your marriage will have no legal force and you and your husband can be criminally prpsecuted for the charge of bigamy.
So beware of this relationship.
Devajyoti Barman
Advocate, Kolkata
5239 Answers
54 Consultations
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foreigners can legally get married in India
The Legal Requirements for Getting Married in India are as follows:
1) The couple should be prepared to stay in India for 60 days its a lengthy process.
2) Civil weddings in India are governed by the provisions of The Special Marriage Act 
3) Either the bride or the groom has to be living in India for at least 30 days prior to applying to the local registry office to get married. For foreigners, this is evidenced by a certificate from the local police station.
4) (a)You’ll need to submit your intention to get married to the registry office
(b) along with the residence certificate 
(c) certified copies of passports 
(d) birth certificates 
(e) two passport sized photographs each
(5) Evidence of eligibility to be married - - Which means that - Anyone who hasn’t been married should obtain in case of:-
(a) For US - single status affidavit
 Note* If you’re divorced, you’ll need to produce the Decree Absolute, or if you’re widowed, a copy of the death certificate.
There is a 30 days cooling period after the forms are filled and submitted to the registrars office. If there is no objection during this period, the marriage can take place.
(6) Witness: Three witness are required who have to provide passport sized photographs, as well as identification and proof of address.
(7) The marriage certificate is usually issued a couple of weeks after the wedding

Please be aware that there is a 12 year old son out of a relationship  and when it comes to inheritance the 12 year old son might also be a legal heir to the properties of your fiancee acquired after your marriage with him. 
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
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1. Staying together and attending the religious ceremony creates a presumption of marriage. You can also be prosecuted for abetting the offence. If you plead ignorance of existence of his first marriage then you will have to prove this in the court. The burden to prove ignorance will be on your shoulders. It will be a recipe for disaster.

2. Merely by claiming that you are not married to someone the matrimonial tie does not cease to exist. The pics of her with him and his parents in Mangalsutra and sindoor are sufficient to prove his marriage. 

3. Indian law does not permit pre-nuptial agreements, so forget about this.

Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) your husband could be prosecuted for bigamy if remarries during subsistence of earlier marriage 

2)you would not be prosecuted for bigamy 

3) if your husband had live in relationship with another lady she can file domestic violence case and seek right to stay in matrimonial home or alternative accommodation , maintenance etc from your husband 

4)prenuptial agreement is illegal in India 

5) to file for divorce marriage ought to have been solemnised between your husband and the lady . merely pictures of lady wearing mangalsutra   is not sufficient to prove marriage has taken place . 

6)Hindu marriage must either be performed with the shastric ceremonies and rites or in accordance with the customary rites and ceremonies.
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
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1. When did the relationship for 13 years broke since the son is 12 years old now?

2. Did they stay together for last 13 years? Have they broken off recently?

3. Was the said relationship  clandestine or open being within the knowledge of the society?

4. Had the lady mentioned anywhere or more specifically during giving birth to the child, who is his father?

5. Has the man mentioned in any official record  that he his the father of the child and husband of the lady?

6. Does the said lady know about your proposed marriage with him?

7. The above information are required to properly address your query,

8. However, if there is no apparent objection from any quarter for your said marriage, you can go ahead but publish a notice in local newspapers about your said marriage,

9. If that lady signs as an witness to your marriage (if possible) then all your future problems are taken care of.

Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
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Bigamy is illegal in many countries including USA. In fact it is Illegal in every state within USA. Every state in the US has laws against bigamy, some class it as a misdemeanor others as a felony.
In the USA, there is a law called "The Uniform Parentage Act",which says that “the parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.”  
It is highly appreciable on your fiancee to set up an education fund, house in US, Company stocks etc for his son.
It is better for your fiancee to take a divorce in USA before getting married to you so that whatsover irritants that may arise at a later date are totally cleared before hand. 
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
1. As I said before, you are liable to be prosecuted for abetting the offence whereas this man will be liable to prosecution for bigamy. 

2. Look I do not know the US law. So consult a US lawyer to know where you stand. My opinion is based on the application of Indian law.

3. Photographs of the wife with her husband and in-laws are sufficient to prove their  marriage. Furthermore, if marriage has been pleaded there is a presumption of truth attached to it. It is for the party which denies marriage, to adduce evidence, to prove the absence of marriage.

4. A newspaper notice does not create or extinguish any rights.

5. The remedy is to file for mutual divorce to give this a burial. Any no objection certificate given by her shall not place an embargo on her right to subsequently avail her legal remedies.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) you won't be prosecuted for bigamy 

2) mere pics are not sufficient to prove the marriage . Lady has to prove the faction of marriage 

3) no need to publicise marriage in local media Facebook would suffice 

4) when no marriage  has taken place there is no question of divorce 

5) your fiancee can send email to lady informing her that he is planning to get married to you
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. The publication of the news about your proposed marriage  with the said person in the Newspapers will prove that you were with clean hands and notified to the all including his said partner about your proposed marriage to enable her to oppose the marriage legally and in case she fails to do that you escape any allegation from her side,

2. Since she has photographs with sindur and mangal sutra and the said gentleman has mentioned her son as his son, she can establish that she was married to him following Hindu Customs and rituals,

3. You will not be prosecuted with the charge of bigamy but there is a high risk of your marriage being declared as invalid if her claim of having her marriage solemnised with him as per Hindu Customs and rituals is established,

4. Marrying him will be a risky affair unless she agrees to sign the marriage application as witness of your marriage with him.

Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0

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