In India, marriage is not just a social contract between two people it is a lot more, it’s a sacred union with statutory obligations and constitutional guarantees¹. When two people enter into a marriage they are under a belief that their to be spouse is unmarried at the moment, only to later find out that a prior marriage subsiding marriage was intentionally concealed from them, the law here focuses on how to protect the spouse who have been defrauded while simultaneously upholding the integrity of the matrimony.

The scenario of a husband concealing a prior marriage from his new wife is sadly not very uncommon in India. Though polygamy is prohibited under most personal laws in India², the practice continues covertly. The relevance of such issue is not only limited to individuals but it also extends to the society, it involves a women’s right to make an informed decision about marriage her rights to property and maintenance, legitimacy of children who are born out of such union, and the criminal accountability of the husband for deceiving the wife.

This article analyses the civil remedies as well as the criminal consequences, in matters of such concealment under the Indian statues.

Issues Involved

Several interlinked but distinct legal questions arise from such scenarios:

1. First, what is the status of second marriage where the husband’s first marriage was in effect and concealed? Is it void or just voidable by the aggrieved wife (from second marriage)?
2. Second, whether the wife have a right to seek annulment of the second marriage and if yes then under what grounds and what’s the procedure?
3. Third, does the concealment of prior existing marriage constitutes fraud under the understanding of matrimonial law undermining the consent of the wife and making her entitlement for relief?
4. Fourth, if there’s any criminal liability to be incurred on the husband for getting into a subsequent marriage during the existence of a prior valid marriage, and for having fraudulently included consent by misrepresentation?
5. Fifth, what consequential reliefs can the aggrieved wife claim for including maintenance, return of stridhan, and damages.

Statutory Framework

The primary statute which governs the Hindu Marriages is the Hindu Marriage Act, 1955 (HMA). Section 5 of the act makes monogamy an essential condition for a valid Hindu marriage³, it clearly states that neither party shall have a living spouse at the time of marriage and a marriage contracted in violation of this condition is rendered void according to section 11 of the act⁴. However, if the basis for challenging the marriage is not bigamy itself but the fraud that undermines consent, section 12(1)(c) states that the marriage is voidable and may be annulled by a decree of nullity on the ground that consent was secured through fraud or misrepresentation⁵.

The concept of void and voidable marriage is quite distinct as a matter of consequences. A void marriage under section 11 of HMA, is null and void from the beginning it does not requires any judicial decree for its nullity. On the other hand, voidable marriage under section 12 of the act subsists until it is annulled by the decree of a competent court. Where it is proved that the husband is into a prior marriage, the second marriage is void under section 11. Where the wife additionally seeks relief on the ground of fraud, she may invoke section 12 to obtain a formal decree of nullity, which is important for establishing her legal states, obtaining maintenance and securing stridhan.

Criminal liability for bigamy is seen under section 17 of HMA read with section 82 & 83 of the Bhartiya Nyaya Sanhita,2023(Section 494 & 495 of Indian Penal Code). Section 82 provides punishment for those who marries again while having a living spouse, imprisonment of up to 7 years and fine⁶. Section 83 here extends the punishment to imprisonment of 10 years where such marriage is contracted by concealment of the fact of former marriage from the spouse with whom it is contracted⁷.

Moving ahead of matrimonial status, the protection of women from Domestic Violence act, 2005 and section 144 of the Bhartiya Nagarik Suraksha Sanhita,2023 provides consequential remedies including maintenance, even to those women in void marriages⁸.

Landmark Judgement

Revanasiddappa v. Mallikarjun

In the landmark judgement of Revanasiddappa v. Mallikarjun⁹, the Supreme Court addressed the rights of children born of such union (void & voidable marriage), but its reasoning acknowledges the right of second wife as well. The primary question in this case was about legitimacy of children; the court expanded the scope of section 16 of the act highlighting the legislature’s intent to protect children born of such marriage from suffering consequences they did not bring upon themselves. Court held that children born of such void marriages are entitled to share in their parent’s property¹⁰. This judgement recognises that the second wife, entering into marriage without any clue of the prior marriage, is herself innocent, the void nature of the marriage must not be used as weapon against her by denying reliefs to which she wouldbe entitled for otherwise.

Latest Judgements

Nitheen & ors. v. State of Kerala & anr. (2024)

In the matter of Nitheen & ors. v. State of Kerala & anr. (2024)¹¹, a two-judge bench of the Supreme Court reaffirmed the essential elements of bigamy under section 494 IPC (section 83 of BNS). The bench held that to sustain a charge of bigamy, both marriages must be proved as valid and ongoing. The court limited the criminal liability only to the spouse who entered into second marriage, and exclude those who were just present at the ceremony as relatives or witnesses.

Anku Gowda & Ors. v. Chandramma (2022)

In the case of Anku Gowda & Ors. v. Chandramma (2022)¹², the Karnataka High Court held that bigamy is a continuing offence and consent of any spouse is irrelevant to its occurrence, and the court refused to set aside bigamy proceedings. This case is directly connected to the current scenario where the willingness of second wife is genuine but her consent was obtained by intentional suppression of truth regarding prior marriage and this does not exempt the husband from liability under section 494 & 495 of IPC (Section 82 & 83 of BNS).

Reasoned Opinion

The aggrieved wife has remedies under both civil and criminal laws. Under civil laws, section 11 of HMA makes the second marriage void. However, if the ground is fraud, then she must seek decree from court for annulment under section 12 (1)(c) of HMA¹³. This decree basically gives protection to her legal status, maintenance and stridhan recovery. Consent must be free and when its obtained by concealment of Prior marriage it is “no consent” in the eyes of law.

Under criminal law, section 83 of BNS¹⁴ gives higher punishment of 10 years specifically because concealment is much a graver wrong, and the husband must be punished for it.

The court also must look on maintenance claims under section 144 of BNSS¹⁵. Denying maintenance just because marriage is void, punishes the wife twice for something which is not even her fault.

Conclusion

A person hiding the fact that he is already marriage comes under both, civil wrong as well as criminal offence. Different Indian statutes lay down multiple relief to the wife like nullity, criminal prosecution, maintenance, etc but what lacks here is its acceptance and application. In our society it’s still considered taboo for a wife to leave her husband no matter what, especially in rural areas, this needs to change.

Courts must start taking such cases seriously instead of as some random matrimonial matters, because these are not just matrimonial disputes these are cases of calculated fraud and manipulation of innocent women. The judicial system is evolving with the time and need to protect such women, which it should continue.

Now, the question here is not about interpretation of statutes but about morality and dignity under the Constitution. The articles of the constitution says that the laws are made to protects the one who is suffering, and not to provide shield to the deceiver.¹⁶