How to punish my husband who is in bigamy? How to punish my husband who is in bigamy?

2 years ago

my husband is in bigamy. He is a government employee and married a lady 22 years younger to him and have two children from this relationship one is 4 year old and other is 10 months old.He says he cannot be punished as bigamy cannot be proved and adultery is decriminalised he will move scot free. He came to know this last year as at night he was always at home .He doesnot stay with lady . He visits her twice or thrice a week for 2 to 4 hours. please advise how he and the lady can be punished legally. As his relation started in 2016 when adultery was punishable can he be punished now for adultery in marriage as his elder illegtimate child was born in january 2017. please advise and help.

Legal Counsel Vidhikarya

Responded 5 months ago

View All Answers
A.Dear Client, Under Section 17 of the Hindu Marriage Act, 1955 remarriage of another woman in the absence of an order of divorce annulling the earlier marriage is termed bigamy and treated as illegal and a criminal offense in India. A case of bigamy is punishable under Section 494 of IPC, which is a non-cognizable offense. Therefore, no FIR can be registered at the police station. The main ingredient of bigamy is the existence of a previously contracted marriage. It is necessary to prove that at the time of the second marriage, the person was already married. Both marriages, first as well as second, should be valid marriages to attract the provisions of this section. The Supreme Court in the case of Saravana Porselvi v. A.R. Chandrashekar (2008) 11 SCC 520, made it quite clear that there is no limitation of time period to take action against bigamy. It is imperative that when the second marriage is solemnized, the criminal procedure can be set in motion at any time. Bigamy if committed may be a ground to seek divorce provided all the essentials of bigamy are fulfilled and proved. In order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed. To prove the offense of Bigamy, the prosecution must prove that the second marriage was valid, (Ref: S. Nagalingam v. Sivagami, (2001) 7 SCC 487). So, what your husband says that he cannot be punished as bigamy cannot be proved and adultery is decriminalized by the Court, is not applicable in your case and cannot be a precedent in your case. Reach out to an Advocate experienced in matrimonial law for guidance and steps.
Helpful
Helpful
Share

Post Your Matter Post Your Matter

Talk to a Lawyer Talk to a Lawyer

Ask a question Ask a question

Vidhi Samaadhaan Vidhi Samaadhaan

Kishan Dutt Kalaskar

Responded 2 years ago

View All Answers

A.Dear Sir,
It is easy to punish him if you have concrete evidence. Lodge complaint with police and get register a case and then share that FIR with higher authorities and they will initiate domestic enquiry and ultimately his services will be terminated.
===========================================================================
Section 494 in The Indian Penal Code
494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Second marriage during the subsistence of the first marriage is illegal in India and the relationship arising from the same does not have any validity. One of the conditions for a valid marriage under Section 5 of the Hindu Marriage Act, 1955 is that neither of the party should have a spouse living at the time of the marriage. Under Section 11 of the Act, second marriages can be declared null and void.
LAW IN DETAIL………………………….……………….……… …………… …… Bigamy becomes an offence only if the husband or wife is alive. It is an offence even if it is performed with the consent of the first wife. It will not apply, • if the husband or wife of the first marriage is dead or • if the first marriage has been dissolved by a decree of divorce or • the former marriage is void or declared void by a decree of nullity Section 494 of the Indian Penal Code exempts from punishment a second marriage contracted seven years after the absence of the spouse. In Sarla Mudgal v. Union of India (1995 air 1531 SC), the Supreme Court held that, • If a man after renouncing Hindu religion has adopted Muslim religion and he without taking divorce from his wife has married again, then this marriage is not legal. • He will be punished for committing bigamy under section 494 IPC Bigamy is a non-cognizable offence, bailable and compoundable with the permission of the court. It is punishable with imprisonment up to 7 years or fine or both. For the offence of committing bigamy by concealing the fact of the first marriage is punishable with 10 years imprisonment or fine or both. However, this offence committed under section 495 is not compoundable. As for the second wife, though she is not entitled to any kind of right or share in the husband’s property, she can also claim interim maintenance from her husband. In Laxmibai v. Ayodhaya Prasad, it was held that ‘wife’ and ‘husband’ used in Section 24 of the Hindu Marriage Act are not be given strict literal meaning. The expression should mean a person claiming to be wife or a husband. In Rajesh Bai v. Shantabai, it was held that a woman whose marriage is void because of the existence of another wife is entitled to maintenance under section 25 of the Act. Interim maintenance under Section 20 is also allowed. The children from the second wife are entitled to share in their father’s self –acquired property. PROCESS FOR SOLUTION……………………………….………… ……………… Complaint Under which Section ? …………………………… … …………… Only the person aggrieved can complain in case of bigamy. If the aggrieved is the wife, then her father can complain under section 494/495 of the Indian Penal Code. A petition for declaration that the second marriage is void can be filed only by the parties to the marriage and not by the first wife. A complaint can also be filed for cheating under section 415 IPC for fraudulently deceiving the person by keeping the subsistence of the first marriage a secret. Whom to complain / where to complaint? ……………….. …………………… The wife can file a complaint either in the court or in the Police station. How to file the Case ? ………………………… ………………... ………… …… The Supreme Court has laid down that proof of solemnization of second marriage in accordance with the essential religious rites applicable to parties is absolutely essential and a must for conviction for bigamy. Mere admission by the accused is not enough. What Next ? …………………………..………………………... …… ……………… Appeal lies to the next higher court in the hierarchy. ALTERNATE REMEDIES………………………………………..………………… … If the offence is committed under section 494, it can be compounded with the permission of the court.


Helpful
Helpful
Share

Post Your Matter Post Your Matter

Talk to a Lawyer Talk to a Lawyer

Ask a question Ask a question

Vidhi Samaadhaan Vidhi Samaadhaan

Anik

Responded 2 years ago

View All Answers
A.Hi,
A five-judge Bench unanimously struck down Section 497 of the Indian Penal Code (IPC), thereby decriminalizing adultery. It struck down Section 497 IPC on the grounds that it violates Articles 14, 15, and 21 of the Constitution. So he can't be punished under the said section. However, since adultery is a ground for divorce, you can file a divorce petition in court if you want to get a divorce from him.
Please rate my answer
Thank You
Helpful
Helpful
Share

Post Your Matter Post Your Matter

Talk to a Lawyer Talk to a Lawyer

Ask a question Ask a question

Vidhi Samaadhaan Vidhi Samaadhaan

Advocate Sinjari Bandyopadhyaya

Responded 2 years ago

A.Adultery is not a crime but it is definitely a ground for divorce so you can divorce your husband on this issue. However if you are unwilling to take divorce but you have sufficient proof of such bigamy of your husband, in which two illegitimate children were born, then that amount to fraud ,cheating, mental torture and cruelty upon you because your husband in spite of having marital wedlock, is playing with your emotions by such heinous conduct, so on those grounds you can lodge FIR against him and on proof he can be arrested and imprisoned.
Helpful
Helpful
Share

Post Your Matter Post Your Matter

Talk to a Lawyer Talk to a Lawyer

Ask a question Ask a question

Vidhi Samaadhaan Vidhi Samaadhaan

Vaidehi Samant

Responded 2 years ago

A.You can press criminal charges of cheating and fraud and breach of trust. On civil side you can ask for divorce from such person and claim one time permanent alimony or even without filing divorce you can ask for maintenance under section 125 of CrPC, 1973. However please note that you should have a strong evidence in respect of the bigamy by you husband of you want to seek legal recourse. Thank you.

Helpful
Helpful
Share

Post Your Matter Post Your Matter

Talk to a Lawyer Talk to a Lawyer

Ask a question Ask a question

Vidhi Samaadhaan Vidhi Samaadhaan

Read Related Answers

question iconI want to file case against my boyfriend
Dear Client, You can file a case under sec 376 of IPC for sexual harassment along with sec 375 and 416 and 420 for cheating. Additionally you can also file a case under sec 305 and 306 for abetment t...
question iconFree lawyer for fight the case
Dear Client, Every person who has to file or defend a case shall be entitled to free legal services under Section 12 of the Legal Services Authority Act, 1987 if the person meets the criteria as outli...
question icon376 2(n) service report of notice
Dear Client, It depends on what service report it is and what kind of case the court is handling. a service report is usually provided when it is summoned by the court. the court can not send any kin...
question iconAbout marriage case
Dear Client, The Police do not have an authority to cancel the marriage by written statements or otherwise. If your marriage is legally registered and your spouse is willing to stay with you on the su...
question iconWidow Harassment Money Extortion, Deprivation of Right to Life , Discrimination
Dear Client, Being a 52-year-old standalone widow, it is a very difficult task for you to tackle the issue with this kind of goons and anti-social elements. Once you make a complaint against them to t...