Can a Hindu take a second wife with the written consent of his first wife?

Consent Is Wholly Irrelevant

The Hindu Marriage Act, 1955, through section 5, clause (i), lays down that neither party to a marriage shall have a spouse living at the time of that marriage. This is not a condition that can be waived by agreement, nor can it be relaxed by consent — whether of a court, a panchayat, or the first wife herself. The expression "spouse living" in clause (i) refers to a lawfully married husband or wife, and the moment such a spouse exists at the time of the second marriage, the condition stands violated absolutely.

Section 11 of the Act makes the consequence unmistakable: any marriage solemnised after the commencement of the Act in contravention of clause (i) of section 5 shall be null and void. The nullity arises by operation of law, from the moment of solemnisation itself — it is void ab initio, not merely voidable. The Act uses the expression "null and void" deliberately to convey that the second marriage is a legal nonentity, stripped of all matrimonial consequences from its very birth.

Consent of the First Wife Cannot Validate What Law Declares Void

It has been expressly settled that even the consent of the spouse of the second marriage cannot have the effect of validating that union. If the consent of the second wife herself — who is a party to that very marriage — cannot validate it, it follows irresistibly that the consent of the first wife, who is not even a party to the second marriage, carries no legal weight whatsoever in this regard.

The Himachal Pradesh High Court illustrated this in Santosh Kumar v. Surjit Singh (AIR 1990 HP 77), where the court was faced with a situation in which a wife had applied before the court seeking permission for the husband to contract a second marriage. The court allowed it. Yet the second marriage was held to be void. Even judicial permission — leave alone the informal written consent of the first wife — could not breathe legal life into a bigamous union. The rigour of monogamy under the Act is not a rule for the protection of the individual spouse alone, capable of being waived by her. It is a rule of public policy embedded in the statute itself.

The Underlying Reason: Monogamy as Public Policy

The reason for this unyielding position lies in the nature of the rule. Before 1955, polygamy was widespread among Hindus, and the legislature made a considered and deliberate choice to abolish it by enacting a statutory command. As the preamble and scheme of the Act reveal, there was preponderant evidence before the Hindu Law Committee in favour of enforcing monogamy as a rule of law. The Act therefore treats the prohibition against bigamy not as a protection personal to the first wife which she may relinquish, but as a public law command which no private arrangement can override.

Section 17 of the Act reinforces this by providing that a bigamous marriage not only is void but also attracts the penal provisions of sections 494 and 495 of the Indian Penal Code. Bigamy is a criminal offence, punishable with imprisonment up to seven years, and if the fact of the first marriage was concealed, the imprisonment may extend to ten years. It would be an extraordinary paradox if the consent of the first wife could insulate the husband from criminal liability, when the legislature has made the act itself a cognisable wrong.

The Consequences of the Void Second Marriage

Since the second marriage is void ab initio, the woman who enters into it cannot claim the status of a wife, cannot inherit as a widow, and cannot claim maintenance as a spouse under the Act. The Supreme Court has consistently held that a bigamous wife cannot succeed to the properties of the deceased husband. However, the legislature, mindful of the innocent position of children born of such unions, provided under section 16 that children born of a void marriage shall be deemed legitimate — a protection for the child, but not for the marriage itself.

In short, the written consent of the first wife is not merely legally inadequate — it is legally irrelevant. The second marriage of a Hindu man during the subsistence of his first marriage is void by the force of the statute itself, and no consent, private arrangement, or even court order can alter that position.