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Marriage after divorce from first wife is valid

Shivendra Pratap Singh

Advocate

12/04/2021

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My friend is planning to marriage after divorce from his first wife. His wife is also ready for divorce. They have been living separate from five years. My friend is living in USA and his wife in India. He loves a lady who is a citizen of UK. She is a bachelor and working with him in USA. Both are working in the same company. How to contract second marriage?

Question from: Mumbai

He can solemnise marriage but after divorce from his first wife. If he contracts marriage in USA without taking divorce from his first wife, he will commit offence of bigamy. However, he is living in USA but the personal law & IPC will also apply on him.

File mutual consent divorce

His wife is also ready for divorce so he should file a suit for mutual consent divorce. Section 13-B of the Hindu Marriage Act provides procedure to get mutual divorce. This is an agreement between the spouses to end their marriage. They can settle their matrimonial disputes and obligations with mutual consent. Free consent of parties are mandatory for mutual consent divorce. That free consent should remain till the decree of the court. If any party withdraws his/her consent then the court will dismiss your case.

Therefore, your friend should talk to his wife and prepare an agreement. That agreement should contain all the terms and conditions regarding matrimonial and legal issues. Custody of child, maintenance, transfer of movable & immovable properties are important issues which should be settled down before filing of divorce case.

Marriage after divorce

Divorce is mandatory to end nuptial knot between the husband and wife. Thereafter, they are free to solemnise their marriage after divorce. They cannot contract marriage before passing of decree of the court. Decree is mandatory because it declares the marital status of spouses. When the court has declared the divorce then they become eligible to contract the remarriage.

Appeal does not allow against the decree of mutual consent. So, parties can solemnise marriage immediately after the decree. If a party files an appeal on the ground of fraud and court admits that appeal then opposite party cannot solemnise his/her marriage. In this condition he should wait till the final decision of the appellate court.

Remarriage

Hindu Marriage Act (HMA) does not bar remarriage after divorce. The provisions of Section 5 of the HMA make it clear that marriage of a divorced Hindu is valid. That section requires no spouse living at the time of marriage. This is one of the essential conditions of a valid Hindu marriage. The legal character and status of wife-husband comes to end after divorce. Therefore, after the divorce they are free to solemnise their marriage.

Second marriage

There is misconception about re-marriage and second marriage. Marriage after dissolution of marriage is called remarriage. This is a valid marriage and does not ensue any legal complication. Whereas, Solemnisation of marriage in subsistence of a valid marriage is called second marriage. It is an offence of bigamy and a punishable act in Indian Penal Code (IPC). Section 494 and in some condition section 495 make bigamy an offence.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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