A recent decision from the Delhi High Court states that, according to the Hindu Marriage Act, 1955, you can\’t have a second marriage if your ex-spouse or you are still alive, even if you both agree. This ruling was made by a group of judges, including Justice Suresh Kumar Kait and Justice Neena Bansal Krishna.
“In case, there is a violation of this condition, the marriage is void in terms of Section 11 of HMA, 1955. Once there is a legal bar to the performance of the second marriage, the consent of the parties cannot confer the validity to a marriage held in violation of the condition specified in Section 5(i) of HMA, 1955.”
Section 5(i) states that neither party should have a spouse living at the time of marriage.
The court\’s decision came when they rejected a wife\’s request to challenge the family court\’s ruling that her marriage to her husband was not valid. They got married in 2009, but the wife had been married before, and her ex-spouse had filed an appeal after their divorce.
Back in December 2008, the wife knew about her ex-spouse\’s ongoing appeal, which continued until 2012. Later, because of issues in their second marriage, the second husband went to court to end the marriage. He argued that it was never valid from the start because the wife was still technically married to her ex when they got married.
The family court agreed with the second husband, saying their marriage in 2009 was invalid due to the ongoing appeal in the first marriage.
The judges, in backing this decision, stressed that the wife was well aware of her ex-husband\’s ongoing appeal when she married her second husband.
“In the present case, the parties had got married during the pendency of the Appeal that was in the knowledge of both the parties. Therefore, in terms of Section 15 of HMA, 1955, it has to be held that the dissolution of the first marriage was not confirmed and the marriage was subsisting on the date of marriage of the appellant with the respondent herein on 28.04.2009 which was in contravention of Section 5(i) of HMA, 1955,” the court said
Additionally, even after her second marriage, the wife asked her first spouse for financial support while the appeal was ongoing. In September 2009, her request for this support was granted.
“The very fact that the appellant had not only claimed but also accepted pendente lite maintenance during the Appeal from the first husband fortifies that the marriage was not finally dissolved. The learned Judge, Family Court has, therefore, rightly declared the marriage between the parties as nullity under Section 11 of HMA, 1955,” the court said.
