Second marriage without divorce; legal aspects

Md. Samiul Alam :
Recently From social media to daily newspaper or TV channel , one topic is being discussed the most.
And, that is about the marriage of Bangladesh cricket team all-rounder Nasir Hossain. Nasir’s wife Tamima Sultana got a marriage before marry with Nasir.
And, she has a daughter of eight years also. she marry Nasir without make any divorce to her first husband. We see often similar story like Nasir’s wife Tamima Sultana.
sometimes we see husband marry another women without make any divorce with his first wife. On the other hand, sometimes we see wife marry another man without make any divorce with her first husband.
Let’s try to look at the legal aspect of all these incidents.
It is not lawful for a Muslim wife to have more than one husband at the same time. It is unlawful for a woman to marry another man whose husband is alive and who is not divorced her husband. In this case there are chance to provide punishment the woman under chapter-20 of The Penal Code-1860.Such marriages are illegal and also the children are illegal. If any woman wants to marry second time then she has to get a divorce from her husband. After getting the divorce she must waiting to complete her iddat period. The duration of iddat period is three lunar months or three menstruation. Then, she will be ready for her second marriage.
According to section 2 of The Dissolution of Muslim Marriage Act-1939, A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on the following grounds-
(I)that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iii) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she attained the age of eighteen years, repudiated the marriage before attaining the age of nineteen years:
(viii) that the husband treats her with cruelty, that is to say,-
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
(ix) on any other ground which is recognized as valid for the dissolution of marriage under Muslim law:

If a woman is not divorced from her first husband or is not entitled to get a decree under the mentioned grounds but marry another man then she will be considered a criminal in the eyes of the law. If any women marrying again during life time of husband, shall be punished with imprisonment for a term which may extent to seven years and shall also be liable to fine.(section 494 of Penal Code).
If any woman marrying again during life time of husband and also concealed it from the former husband shall be punished for a term which may extend to ten years and shall also liable to fine.(section-495 of Penal Code)
If any Husband marrying again during life time of wife then what will be happen?
Under The Muslim Family Laws Ordinance 1961, If a husband thinks he needs a second marriage, he will apply to the arbitration council with showing the cause why he needs second marriage. If arbitration council is satisfied that the proposed marriage is necessary and just then grant it.
According to section 6 of The Muslim Family Laws Ordinance -1961,No man during the subsistence of an existing marriage
without the permission of arbitration council contract another marriage. Any man who contracts another marriage without the permission of the Arbitration Council shall-
(a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and
(b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to ten thousand taka, or with both.
If any husband marrying again during life time of his wife shall be punished with imprisonment for for a term which extend to seven years and shall also liable to fine.(section 494 of Penal Code)
If husband marrying another woman and concealed it from former wife shall be punished with imprisonment for a term which may extend to ten years and also liable to fine. (section 495 of Penal Code).
And,if a man knows that the woman is wife of another man despite knowing he marry that woman and made sexual intercourse there is a chance to punished him for the crimes of adultery. (section 497 Penal Code).

I would like to show some Indian cases where second marriage without divorce has been made a crime.
Trailokya Mohan v State of Assam – AIR 1968, Assam 22

Facts: The petitioner already had a wife living namely Subarna Bala Nath, but he got married a second time to Shefali Debi and thus committed the offense of bigamy punishable under the IPC

Sarla Mudgal v. Union of India (1995 AIR 1531 SC)

The Supreme Court of India in its landmark judgment held that “where any man (not Muslim initially) converts his religion into Islam for the sole purpose of contracting a second marriage without legally divorcing his first wife, the marriage shall be regarded as void and illegal.

Now showing how you can get legal help if you are a victim of this type of crime. If you are a victim of marital offenses, you will have to go to court directly. In this case, as proof of the case, the marriage certificate and other evidence must be submitted and a lawyer must be appointed.
Prosecution of Offenses against Marriage under CrPC.

In CrPC Section 198 deals with the prosecution of offenses against marriage. This section stated below:
Except a complaint made by the person aggrieved by the offense. No court will take cognizance of an offense punishable under chapter 20 of the Penal Code.

It says that-The person who is a lunatic or an idiot person or below the age of 18 years and unable to make a complaint due to sickness or infirmity and a woman cannot force to appear in public according to the local customs and manners then with the permission of the court any other person can complaint on his behalf.
Any person who is serving in the Armed Forces of Bangladesh and at the same time he is also the husband then if his commanding officer prevented him from obtaining leave of absence to enable him to make a complaint. Then with the permission of the court any other person can complaint on his behalf.
Conclusion :Registration of marriages and divorces need to be preserved on a website. In this regard, A writ petition was filed with the High Court on last 04th March 2021 seeking its directive on the government to digitize marriage and divorce registrations to save people from fraudulence. Second time marrying without divorce is a Punishable offense in the eye of law Besides, it can cause social problems. Everyone should be aware of this. Before marriage, both the boy and the girl should check the background of the person with whom they are getting married. The marriage related laws should be obeyed and the marriage should be registered properly. Finally, All these crimes can be removed from the society only through the practice of religious and moral values.

Writer: Student, Department of Law, Northern University.