• Second marriage valid if first marriage void?

Hi,
My fist wife had married me without divorcing her first husband. I got an ex-parte decree of nullity from the family court. After one year and 6 months the court condoned her delay to file an application for setting aside the ex-parte order. I remarried after the delay was condoned and later my first wife approached me to resolve the matter amicably and requested to present consent terms in the same family court. The family court then converted the original nullity petition into mutual consent petition and granted an additional decree after setting aside the original ex-parte decree of nullity.
The problem now is that my second wife has filled bigamy on me in the criminal court and also a petition for nullity in the family court on the ground that my first marriage was subsisting on the day I got married to her which is based on the fact that the original decree of nullity was challenged by the first wife on the day of the second marriage.

What should be my legal remedy in this case?
Asked 8 months ago in Family Law from Pune, Maharashtra
Religion: Hindu
1)on date of your second marriage   order declaring  your first marriage as null and void was subsisting 

2) court had merely condoned her  delay in filing application for setting aside exparte order 

3) your second marriage was valid 

4) no case of bigamy is made out 

5) merely because decree for nullity is challenged does not make your second marriage a nullity
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
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1. You have married your second wife before you got the information that your wife has filed a petition challenging your ex-parte decree of divorce and the Court has condoned her delay in filing the said application,

2. Your wife can get her marriage annulled for the above technical ground but the bigamy charge on you will not On the the stand the legal scrutiny.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
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You had remarried after the delay was condoned, as a corollary thereto the subsequent remarriage is void. Your second wife is legally on a high legal plane. The onus to prove that you had not remarried during the subsistence of your first marriage is on you. The legal remedy is to contest the case on merits,
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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1)second marriage by your first wife without divorcing her first husband made her second marriage to you a nullity 

2) court granted you a decree declaring your marriage null and void 

3) no appeal was filed by your wife for period of 90 days from date of order

4) you contracted second marriage . your marriage was legally valid

5) it is only after 18 months that court condoned delay in filing application for setting aside exparte decree

6) decree was not set aside at that point of time . so no case of bigamy is made out against you . 

7) your second wife petition for declaring marriage nullity is not maintainable 
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
5.0 on 5.0
It was declared as a nullity in ex parte proceedings which were set aside on your wife's petition. You ought to have put brakes on your plans to get remarried if the court had condoned the delay. Once the delay is condoned the original petition for nullity stood restored to the file, thereby reviving the relationship of husband and wife between the parties.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1. Your first marriage is not  null and void since the ex-parte decree got set aside by your ex-wife (who will be legally treated as your wife till you go for the decree of divorce as per MCD petition),

2. So, when you had married for the second time, you were already married to your first wife,

3.  Condonation of delay did not  have an effect of setting aside the decree itself. The delay in filing the appeal challenging your ex-parte  deree was condoned after which her appeal was heard and order for seting aside the ex-parte decree was passed,

4. No bigamy charge will finally stand against ou since at the time of marrying your second wife, you had received the ex-parte deree of divorce (which was set aside later on).
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Dear Querist
now what do you want? you want to know about the status of your second marriage or you eant legal position of your first case?

1. When you get the information that your first wife has filed the application for setting aside the ex-party decree then you should not marry again till the final disposal of the case.

2. When the court condone the delay on her application then you had the option for filing appeal but you did not do that.

3. When you agree for the Mutual Consent divorce then you yourself admitted that marriage hence second marriage will be declare Void and the second wife has rightly file bigamy case against you. if there is any concealment of previous marriage then she may also file a complaint u/s 495/496 of IPC.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
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The problem now is that my second wife has filled bigamy on me in the criminal court and also a petition for nullity in the family court on the ground that my first marriage was subsisting on the day I got married to her which is based on the fact that the original decree of nullity was challenged by the first wife on the day of the second marriage.

If you had married before the the condone delay petition was allowed then you second marriage was held as valid but you have intentionally done the second marriage despite the fact that the exparte decree is being contested by the affected party and the court has already condoned the delay to file set aside petition, the second marriage can be treated as null and  void, however it cannot be considered as bigamy offence if the case is challenged properly by interpreting the law  properly.
You have to challenge her case properly and legally. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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 I would have not done that. 
I was and I still am under the impression that to grant a decree under sec. 11 the court will have to see if there is a subsisting marriage on the day of the second marriage. How can mere condonation of delay have an effect of setting aside the decree itself so as to to restore the relation of husband and wife? Is this and established legal position?

You have committed a mistake and now you are looking for reasons to overcome your mistake. 
The annulment petition should have been processed in its original form itself even after the set aside petition was allowed.
If the annulment petition was later converted into mutual consent divorce petition, it becomes a fact that you have accepted the marriage and as on the date of your second marriage there subsisted a valid marriage which can be evidently  proved by the dissolution of your marriage by a decree of divorce on the grounds of mutual consent at a later date. 
Now you have no option than to challenge the cases filed by her by engaging a prudent lawyer utilising the law skills
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0

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