Introduction

Remarrying while a first marriage subsists is more than a social or moral question in India — it is a legal one. While love and companionship form its emotional foundation, the legal implications of marriage are equally binding and significant. Once a marriage is solemnized according to the applicable personal law, it creates a legitimate bond recognized by law, which can only be dissolved through a lawful process. In practical terms, entering into a second marriage without a lawful dissolution of the first can render the second marriage void and may attract criminal liability. A recurring question that arises in both personal and professional circles is: “Can a person remarry without obtaining a divorce from the existing spouse?” The straightforward legal answer is no. Indian law strictly prohibits remarriage during the lifetime of a spouse unless the earlier marriage has been legally dissolved. Let’s get deeper into this topic to answer all your what’s and why’s.

What the (New) Criminal Law Says: Bigamy under BNS

Under the new penal code, bigamy contracting a second marriage during the life of a spouse is explicitly criminalised. Section 82 of the Bharatiya Nyaya Sanhita (BNS) deals with “marrying again during the lifetime of husband or wife.” The provision broadly mirrors the old IPC structure: a person who, while a husband or wife is living, marries again in circumstances that make that second marriage void is punishable with imprisonment (which may extend to seven years) and a fine. An aggravated variant where the first marriage is concealed from the second spouse attracts a higher maximum punishment (up to ten years) under the corresponding sub-section.

Personal Laws, Void Marriages and Where Criminal Liability Meets Family Law

Criminal law and personal (family) law operate concurrently on the question of remarriage. Even if a second marriage is criminally punishable, the civil status and consequences flow from the relevant personal law under which the first marriage was solemnised.

Key statutes and provisions to note:

• Hindu Marriage Act, 1955 (HMA) Section 5(i): one essential condition for a valid Hindu marriage is that “neither party has a spouse living at the time of the marriage.” Section 11 declares marriages contravening such conditions may be void; Section 13 provides the divorce remedies that can lawfully dissolve such a marriage. Practically, a Hindu person who marries again without getting a judicial divorce faces both civil nullity (the second marriage is void) and criminal liability under BNS.
• Special Marriage Act, 1954 Section 4(a) and the voidness provisions: the Act likewise requires that neither party have a living spouse, and a contravention renders the second marriage void under the Act. If a marriage was solemnised under SMA, the special (secular) route enforces monogamy expressly.
• Christian and Parsi personal laws: The Indian Christian Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1936 similarly envisage monogamy and require the absence of a surviving spouse at the time of marriage. A second marriage under these statutes without dissolution of the first is void and exposes the contracting party to penal action under BNS. (For the Hindu, Christian, Parsi rules referenced above the applicable sections are those that define essential conditions for marriage and nullity.)
• Muslim personal law: Muslim personal law traditionally permits polygyny (up to four wives) under the principles of Islamic law but that permissibility applies only where the marriage is governed by Muslim law. If a Muslim marries under the Special Marriage Act or under some other legal framework that prescribes monogamy, those statutory rules will govern; moreover, even under personal law, conversions or procedural sleights to avoid criminal provisions have been rejected by courts (see landmark cases below).

Practical Consequences beyond the Headlines

If a person remarries without a lawful divorce:

1. Second marriage is void - the second union has no legal status for matrimonial rights that depend on valid marriage (except limited protective provisions for children in some Acts). For instance, certain child legitimacy and maintenance safeguards continue to operate in narrow circumstances, but spousal rights, succession and inheritance claims arising purely from the second marriage will be fragile.
2. Criminal exposure - the individual may be prosecuted under Section 82 BNS (and the aggravated sub-section where concealment is involved), with punishments running up to 7 or 10 years plus fine depending on facts, and subject to BNSS procedural classifications (bailable/non-bailable, compoundable/non-compoundable, cognizability).
3. Civil relief remains open to first spouse - the aggrieved first spouse can pursue divorce, maintenance, restitution and other remedies in the civil forum (HMA / SMA / personal law routes). Criminal prosecution does not bar civil relief; both tracks can run concurrently.
4. Defences and exceptions - BNS preserves certain traditional defences: for example, declarations by courts that the first marriage is void, presumed absence for a long period (historically seven years in old law contexts), or bona fide belief in the validity of the first marriage may alter outcomes. However, statutory defences are narrow, and conversion to another religion solely to evade monogamy rules has been rejected by courts.

Landmark Judgments (Brief and Relevant)

A few Supreme Court decisions have shaped the law and are still directly relevant to cases of remarriage without divorce:

• Priya Bala Ghosh v. Suresh Chandra Ghosh (AIR 1971 SCC 1153) - The decision emphasised evidentiary standards: to secure conviction for bigamy the prosecution must prove the solemnisation of both marriages and the legal validity of the first marriage at the relevant time. This case underscores that criminal liability requires proof of facts, not mere allegation.
• Sarla Mudgal v. Union of India, (AIR 1995) SCC 635) - The Court held that a Hindu husband’s conversion to Islam, undertaken merely to solemnise a second marriage, does not dissolve the first Hindu marriage; the second marriage remains void for purposes of criminal liability (earlier under IPC 494) and the husband could be prosecuted. The decision emphatically rejects conversion as a backdoor to legal bigamy.
• Lily Thomas v. Union of India, (AIR 2000 SC 1650) - Reaffirmed that conversion to another faith for the sole purpose of contracting a second marriage does not dissolve the earlier marriage and does not excuse criminal liability under the bigamy provisions. The courts have consistently treated such attempts to circumvent monogamy as legally ineffective.

Conclusion

Remarrying without a prior marriage having been lawfully dissolved is not legally permitted in India. The law is unambiguous ,no person can contract a second marriage during the subsistence of the first, except where explicitly allowed by personal law or custom (as in limited Muslim law contexts). The act of remarrying without securing a lawful divorce is more than a breach of trust; it is a criminal offence punishable under Section 82 of the Bharatiya Nyaya Sanhita (BNS), apart from rendering the subsequent marriage void in the eyes of personal law.

The underlying principle is to uphold the sanctity and integrity of marriage, ensuring that the rights of a legally wedded spouse are not undermined by deceit or neglect. Whether governed by Hindu, Christian, Parsi, Muslim, or secular law, the consistent message is that a valid divorce decree from a competent court is a prerequisite before entering into a new matrimonial alliance.

Thus, before taking the significant step of remarriage, individuals must ensure that their previous marriage has been legally dissolved through due process. Doing so not only protects them from criminal prosecution and social stigma but also reflects respect for the rule of law and the dignity of marriage. In essence, remarriage without divorce is not an act of love or liberation, it is an infringement of law, carrying consequences that can alter lives far beyond the personal realm.

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