To answer the second marriage without divorce, we need to enquire that if an unregistered Hindu marriage is considered valid in India? If it is considered a valid marriage and marrying second time without taking divorce is illegal, then the answer of above question will be in No. Let’s see what law says on these question.
What are conditions of a Hindu marriage?
Section 5 of Hindu marriage Act says that marriage between any two Hindu, which includes Jains, Buddhists, Sikhs, may be solemnised. It provides for conditions for a valid marriage such as following:
- Both persons are capable of giving the consent.
- They are not in any such relationship which are prohibited to marry in Hindus for example brother-sister.
Is an unregistered Hindu marriage valid?
Section 8 of the Hindu marriage Act deals with registration of marriages. It also states that the validity of Hindu marriage doesn’t get affected by not registering it. Hence an unregistered Hindu marriage is a considered a valid marriage. Customary religious ceremonies such as Saptapadi performed during marriage are sufficient for a valid Hindu marriage. State governments are given the power to make laws for registration of marriages. But sub section 5 of the section 8 states that even if state government made such laws with respect of registration of marriages, non-registered marriages will still be a valid marriage.
Is a second marriage without divorce the first spouse legal, if the earlier marriage was not registered?
Since a Hindu marriage even without registration is valid if religious ceremonies are performed. Section 11 of the Hindu marriage Act provides for second marriage among Hindus. It states that second marriage performed without dissolving first marriage is null and void. So on question of, if a Hindu can remarry in India? On this issue Section 494 of Indian penal code state that if a person marries second time and at the time of marriage his/her spouse is alive it is bigamy. Bigamy is illegal and is a penal offence under section 494 of Indian penal code. A complaint can be filed under section 415 of Indian penal code for the offence of cheating.
Hence, it can be concluded that if a person is married and are considering to remarry someone else even when the present spouse is alive should take a divorce. Without obtaining divorce from first marriage, marring for second times is illegal in India. As marrying for second time without taking divorce is penal offence under Indian Penal code, this can also land you up in Jail.