MANJUBHASHINI (nil 1) 24 July 2015

Custody

My husband is married before marrying with out intimation he married me. And we had a daughter. I have filed case against on ipc sections 498(A),494,495,417,420. And it is running in court how much time it will take for action. What would be the court decision in this type of cases. Can I apply for divorce. If I apply for divorce my daughter can be with me only or he will take her. What are rights he has on my daughter.

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DR. DIMPLE JINDAL (ADV.) (Advocate) 24 July 2015

Your Husband is chargeble under the offence of "Bigamy". The detail of this offence in IPC are as follows.

Punishment of bigamy in India,sec.494 and 495 of IPC.

Punishment of bigamy. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal (45 of 1860 ) Code shall apply accordingly.

Section 494 in The Indian Penal Code, 1860

494. Marrying again during lifetime of husband or wife.– Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either descripttion for a term which may extend to seven years, and shall also be liable to fine. Exception.- This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Section 495 in The Indian Penal Code, 1860

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.– Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either descripttion for a term which may extend to ten years, and shall also be liable to fine.

DR. DIMPLE JINDAL (ADV.) (Advocate) 24 July 2015

What is the age of your daughter? Mainly, the custody of the child below the age of 5 years (specially girl child) remains with the mother. But it is not hard and fast ruiling. If you will prove that you are better care taker then your husband, then the court will give the custody of child to you.

DR. DIMPLE JINDAL (ADV.) (Advocate) 24 July 2015

You have no choice but to file for an annulment. If he was already married then his marriage with you was void. You can't divorce when there is no marriage.