After filing 498a can hisband go for 2nd marriage

sudhirghabasu (advocate) 12 October 2015

498A is criminal proceedings. That is a different issue. But you have to obtain a decree of divorce under the special marriage Act, only than you can perform your second marriage.

saravanan s (legal advisor) 12 October 2015

irrespective of the act under which you have performed your marriage you need to first legally dissolve your marriage through a decree from court and then only you can proceed for second marriage.otherwise whatever you do will amount to bigamy u/s 494 ipc and will land you in prison

saravanan s (legal advisor) 12 October 2015

though the husband is a muslim since the marriage had been registered under special marriage act divorce becomes necessary before going for a second marriage

sandeep bhatnagar 12 October 2015

By mere filing a suit/petition under section 498a, a person can not go for second marriage as per Hindu Marriage Act, 1955. He can perform second marriage only after decree of divorce.

sandeep bhatnagar 12 October 2015

Section 13 of the Hindu Marriage Act, 1955 provides the specific ground for divorce,on the basis of which one can get the Decree of Divorce from the court against their spouse. Ground of divorce --- 13 (1) ---Any marriage solemnized, whether before or after the commencement of this Act, may,on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--- [ ( i ) has,after the solemnization of the marriage, had voluntary s*xual intercourse with any person other than his or her spouse, or ( i-a ) has, after the solemnization of the marriage, treated the petitioner with cruelty; or ( i-b ) has, deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or ] ( ii ) has ceased to be a Hindu by conversion to another religion; or [ ( iii ) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation--- In this clause ---- ( a ) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; ( b ) the expression "psychopathic disorder " means a persistent disorder or disability of mind ( whether or not including sub normality of intelligence ) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] ( iv ) has been suffering from virulent and incurable form of leprosy; or ( v ) has been suffering from venereal disease in a communicable form; or ( vi ) has renounced the world by entering any religious order; or ( vii ) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; [ Explanation -- In this sub - section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage ,and its grammatical variations and cognate expressions shall be construed accordingly.] [ ( 1-A ) Either party to a marriage, whether solemnized before or after the commencement of this act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground ---- ( i )that there has been no resumption of cohabitation as between the parties to the marriage for a period of [ one year ] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or ( ii ) that there has been no restitution of conjugal rights as between the parties to the marriage for aperiod of [one year ] or upward after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] ( 2 ) A wife may also present a petition for the dissolution of her marriage by decree of divorce,-- (i) In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner; Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit under section 18 of the Hindu Adoption and Maintenance Act , 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Civil Procedure ,1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898(5 of 1898), a decree or order , as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards ; or (iv)that her marriage (whether consummated or not ) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

sandeep bhatnagar 12 October 2015

498 a IPC is Criminal proceeding.

SAINATH DEVALLA (LEGAL CONSULTANT) 12 October 2015

REPEATED QUERY

Advocate Ravinder (Advocate/Attorney) 12 October 2015

I Agree with Sudhirghabasu and saravanan and disagree with TGK reddy.

Advocate Ravinder (Advocate/Attorney) 13 October 2015

@ TGK Reddy,

Your version would be correct if the husband married under Mohd. Law. Under Mohd. Law a male can do four marraiges. Since the marraige was performed under Spl. Marraige Act, divorce is must to do second marraige. I am not criticising anybody. I am just protraying the legal position.

SAINATH DEVALLA (LEGAL CONSULTANT) 13 October 2015

INSTEAD OF DISCUSSIONS AND DEBATES ITS BETTER TO GO THROUGH THE SECTIONS 27 TO 35 OF SMA OF 1954;

Section 27. Divorce

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-
(a) has, after the solemnization of the marriage had voluntary s*xual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation- In this Clause-
(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form; or
(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive;
Explanation- In this sub-section, the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1-A) A wife may also present a petitioner for divorce to the District Court on the ground.-

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under Sec. 18 of the Hindus Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974), or under the corresponding Sec. 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.

(2) Subject to the provisions of the Act and to the Rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the District Court on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

27-A. Alternate relief in divorce proceedings- In any proceeding under this Act, on a petition for a dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the ground mentioned in Cl. (h) of sub-section (1) of Sec. 27, the Court may, if it considers it just so to do, having regard to the circumstances of the case, pass instead a decree for judicial separation.

Section 28. Divorce by mutual consent

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the avertments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

Section 29. Restriction on petitions for divorce during first three years after marriage

Section (1) No petition for divorce shall be presented to the District Court unless at the date of the presentation of the petition one year has passed since the date of entering the certificate of marriage in the Marriage Certificate Book:

Provided that the District Court may, upon application being made to it allow a petition to be presented before one year has passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the District Court at the hearing of the Petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the District Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the expiration of the said one year upon the same or substantially the same facts, as those proved in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the District Court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.

30. Re-marriage of divorced persons- Where a marriage has been dissolved by a decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, either party to the marriage may marry again.

CHAPTER VII
Jurisdiction and Procedure
31. Court to which petition should be made.- (1) Every petition under Chapter V or Chapter VI shall be presented to the District Court within the local limits of whose original civil jurisdiction-

(i) the marriage was solemnized; or

(ii)the respondent, at the time of the presentation of the petition resides; or

(iii) the parties to the marriage last resided together; or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he was alive.

(2) Without prejudice to any jurisdiction exercisable by the Court under sub-section (1), the District Court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident , therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.

32. Contents and verification of petitions.- (1) Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits, the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints and may, at the hearing, be referred to as evidence.

33. Proceedings to be in camera and may not be printed or published.- (1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.

34. Duty of Court in passing decrees.-(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the Court if satisfied that,-

(a) any of the grounds for granting relief exists; and

(b) where the petition is founded on the ground specified in Cl.(a) of sub-section (1) of Sec. 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of s*xual intercourse referred to therein or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and

(c) when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and

(d) the petition is not presented or prosecuted in collusion with the respondent; and

(e) there has not been any unnecessary or improper delay in instituting the proceedings; and

(f) there is no other legal ground why the relief should not be granted; then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties :

Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Cls.(c), (e), (f), (g) and (h) of sub-section (1) of Sec.27.

(3) For the purpose of aiding the Court in bringing about such reconciliation, the Court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days, and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person, with directions to report to the Court as to whether reconciliation can be and has been effected and the Court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties.

35. Relief for respondent in divorce and other proceedings.-- In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make counter-claim for any relief under this Act on that ground, and if the petitioner's adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

SAINATH DEVALLA (LEGAL CONSULTANT) 13 October 2015

Bigamy or adultery under SMA is an offence,let them be of any caste ,religion community or creed.Mr.Reddy(farmer) lawyers cannot survive if they run away.Better concentrate on the querist if U have digested the entire Indian Judiciary.If U are here for passing out UR time,don't do it at the cost of the querist and the needy,there are other platforms for it.I presume U R eagerly waiting for my reply.

SAINATH DEVALLA (LEGAL CONSULTANT) 13 October 2015

Poligamy is not an offence by a Muslim only if he had been married according to Islamic Law.

12 Replies

Section 27. Divorce

Section 28. Divorce by mutual consent

Section 29. Restriction on petitions for divorce during first three years after marriage

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