Whether a married Hindu husband can legally perform second valid marriage in the lifetime of his first legally wedded wife without obtaining divorce from her?
Anil Bansal, Advocate
Date : 15/11/2017 - Mobile No. 9416379888 - Location : Hisar, Haryana
Whether a married Hindu husband can legally perform second valid marriage ...divorce from her?Note: kindly note the dates of enforcement of various acts which are mentioned in this article. Despite heavy protest by the president of India. The Hindu Marriage Act, 1955 was enforced on 18th May 1955. Section 5 of this act defines "various conditions for solemnizing marriage between any two Hindu". Sub section 1 of this section lays down a very major condition that "neither of the party has a spouse leaving at the time of the marriage". Section 11 of this act defines the Void marriage, which reads as "any marriage solemnised after the commencement of this act shall be null and void and may on a petition presented by either party there to against the other party be so declared by a degree of nullity if it contravenes any one of the conditions specified in clause (1), (4) or (5) of section 5". According to section 5 and section 11 of Hindu marriage act, a married person cannot perform second marriage in the lifetime of his first spouse and if he or she do so, then under section 11 of this act, the second marriage shall be declared null and void by any civil competent court. The Hindu succession act, 1956 was enforced on 17th June 1956 in this country. Section 10 of this act defines a "distribution of properties among heirs among the clause first of the schedule." The property of an intestate shall be divided among the heirs in the clause 1st of the schedule in accordance with the following rules. Rule 1- the intestates, or if there are more widows than one, all the widows together shall take one share. On the other hand, Hindu adoption and maintenance act, 1956 was enforced on 21st December, 1956. According to explanation of section 7 of this act which defines the "capacity of a male Hindu to taken in adoption". If a person has more than one wife leaving at the time of adoption the consent of all the wifes is necessary unless the consent of any one of them is unnecessary or any of the reason specified in the preceding proviso. According to a judgement mentioned in 2009(4) RCR CIVIL on pg.401, "when there are two special acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail." In this article, as I have mentioned above that the Hindu marriage act,1955 was enforced on 18th May 1955, Hindu succession act enforced on 17th June 1956 and Hindu adoption and maintenance act was enforced on 21st December 1956. So, as Hindu Succession and Hindu adoption and maintenance act, were passed subsequent to Hindu marriage act, and both these acts supersede Hindu marriage act. Therefore, any male married Hindu can perform number of marriage in the lifetime of his first wife after enforcement of Hindu Marriage Act. If all these above-mentioned acts exist as it exists before, then one prostitute lady will get her share in succession of disease husband and similarly according to section 16 of Hindu marriage act, ille-gitimate children born out of void and voidable marriage will get their share in succession from the property of their disease father.
ConclusionAccording to my own opinion, if we go with the history of India there was no codify law regarding Hindu marriage, adoption and succession act etc prior to Independence. Therefore, at that point of time Raja Maharajas and Zamindars and higher-class body and ruling class body of married male section usually perform more than one marriage. India became Independent state on 15th August 1947. At that point of time, such type of problem was persisting as customary Hindu law, gave permission to such type of marriage. To face this situation Hindu Succession Act, 1956 and Hindu adoption and maintenance act, 1956 covered the issue of more than one wife of legally wedded male Hindu or it may be seeming to be a flow in draftsmen ship of both the abovementioned act. Lastly, I would say that both the mistake as I discussed above should be amended. So, such type of problem comes to end and therefore, one Hindu can tell with proud that uniform civil code still exists in India. Otherwise, both Hindu and Muslim make a serious allegation upon male member of any community that he can perform number of marriage with no of lady of their community.
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