Marriage validity: The husband had a wife at the time of marriage, the first marriage having been performed in London before 1955.

The Governing Framework and Its Temporal Scope

To understand this problem, one must begin with how the Hindu Marriage Act, 1955, handles marriages that preceded its enactment. The Act came into force on 18 May 1955, and its provisions relating to void marriages under section 11 operate prospectively. The section itself is explicit — it applies only to marriages solemnised after the commencement of the Act. As the notes to section 11 make clear, parties to a marriage solemnised before the Act came into force are not affected by this section in respect of the validity of that earlier marriage; they are governed by the previous Hindu law as to whether their earlier marriage was valid or void. A second marriage contracted before the Act came into force could not be declared void under the Act, as the Act is prospective in its operation.

This does not, however, mean that the first marriage in London is inconsequential. The critical pivot lies elsewhere.

The First Marriage in London: Was It Valid?

The first marriage was performed in London before 1955 between two Hindus. The validity of this marriage must be tested by the law in force at that time. Under the uncodified Hindu law as it stood before 1955, a Hindu could validly marry a second wife even while the first was living — polygamy was not prohibited, and indeed was widely prevalent. However, that was a rule concerning the freedom to take a second wife, not a declaration that a pre-1955 Hindu marriage was invalid for any reason. The marriage in London, if it was solemnised with the necessary forms and ceremonies, was a valid subsisting marriage at the time the Hindu Marriage Act came into operation.

There is no ground to suppose that the London marriage was invalid merely because it was celebrated outside India. The Hindu personal law followed the Hindu wherever he went; his status as a husband was not extinguished by geography. A marriage between two Hindus validly solemnised according to Hindu rites or any applicable form, wherever in the world it took place, conferred the status of husband and wife upon the parties. The wife from the London marriage was, therefore, a lawful spouse whose marriage was fully subsisting at the time the Hindu Marriage Act was enacted.

The Decisive Effect of Section 5(i) and Section 11

The Hindu Marriage Act introduced monogamy as an absolute rule for Hindus. Section 5, clause (i) declares that neither party to a marriage should have a spouse living at the time of marriage. Clause (i) of section 5 is described by the Act itself as one of the three essential conditions — the non-fulfilment of which, under section 11, renders a marriage celebrated after the commencement of the Act null and void ab initio.

The legal consequence is thus absolute and admits of no qualification. As section 11 reads, any marriage solemnised after the commencement of this Act shall be null and void if it contravenes clause (i) of section 5. A prior subsisting marriage is a civil disability which renders any subsequent marriage void ab initio, with the result that the parties to the second marriage are not husband and wife in the eyes of the law. The second marriage is not merely voidable at the instance of one party — it is void from the moment of its solemnisation, without any requirement of a court decree to extinguish it.

The Critical Argument: Does the Nature of the First Marriage Matter?

One might be tempted to argue that since the first marriage was performed before 1955 outside India, it escapes the Hindu Marriage Act altogether and therefore does not qualify as a "valid marriage" for the purpose of section 5(i). This argument must be firmly rejected.

The expression "spouse living" in section 5(i) refers to a lawfully married husband or wife — it does not require that the prior marriage have been solemnised under the Hindu Marriage Act itself. The first marriage, having been valid under the Hindu law applicable to the parties at the time of its solemnisation, created a fully subsisting marital status. The fact that the prohibition against bigamy under section 17 and section 11 did not apply to the parties at the time of the London marriage is irrelevant — what matters is that when the second marriage is sought to be contracted after 1955, the first wife from the London marriage is very much alive and that marriage has not been dissolved. The Act speaks to what the husband's status is at the time he enters the second marriage, not at the time the first marriage was performed.

The law on this point is unambiguous. As the commentary on section 5 states, the prohibition against bigamy imposed by the Hindu Marriage Act is equally applicable to parties whose earlier marriages were solemnised before the Act came into force — a Hindu husband cannot, after the Act came into force, marry another wife as long as his previous marriage is subsisting. It is the subsistence of the first marriage at the time of the second that creates the incapacity, not the legal regime under which the first marriage was contracted.

The Further Question of Dissolution

It is worth pausing to consider whether the London marriage could have been dissolved in some manner before the second marriage was contracted. Under the pre-1955 Hindu law, divorce by mutual consent or by customary practice was recognised only in communities where such custom prevailed and could be established. The Act itself, under section 29, saves any right recognised by custom or conferred by any special enactment to obtain dissolution of marriage, whether solemnised before or after the Act. However, the burden of proving such a customary dissolution rests firmly on the party pleading it, and courts have repeatedly held that a mere assertion is not enough. Where customary dissolution is not proved, the second marriage remains void.

If, on the other hand, the London marriage was dissolved by a valid decree of divorce — either under English law at a competent English court, or later under the Hindu Marriage Act — before the second marriage was contracted, the incapacity under section 5(i) would not arise and the second marriage would be valid.

Status of the Second Marriage and Its Legal Consequences

Assuming the first marriage subsisted and was not dissolved, the second marriage is null and void ab initio under sections 5(i) and 11 of the Hindu Marriage Act. The second wife does not acquire the legal status of a wife and cannot claim the rights that flow from a valid marriage — she is not entitled to inherit as a widow, cannot claim maintenance as a spouse, and has no status as the legally wedded wife in the eyes of the law.

The position regarding children born of the void second marriage is, however, different. Section 16 of the Hindu Marriage Act comes to their rescue by providing that children begotten or conceived of such a void marriage shall be deemed to be legitimate children for all purposes, though their property rights are confined to the property of their parents alone and cannot extend to other relations. The human suffering of innocent children ought not to be made a consequence of their parents' irregularity — this is the humane principle that animates section 16.

Additionally, section 17 of the Hindu Marriage Act, read with sections 494 and 495 of the Indian Penal Code, makes bigamy a criminal offence. The husband who contracts this second marriage while the London marriage subsists is liable to penal consequences — imprisonment for a term which may extend to seven years, and if the fact of the first marriage was concealed from the second wife, up to ten years. It must however be remembered that for prosecution of bigamy, the second marriage must have been validly solemnised with the requisite ceremonies, and mere admission of marriage without proof of ceremony is not sufficient for conviction.

In summary, the second marriage contracted by a husband whose first wife from a London marriage (solemnised before 1955) was still alive is void ab initio under section 11 read with section 5(i) of the Hindu Marriage Act, 1955. The temporal location of the first marriage — outside India and before 1955 — does not save the second marriage, for it is the subsistence of the first marriage at the time of the second that creates the legal bar. The law cares not for where or when the first marriage was performed; it cares for the undissolved marital status that continues to bind the husband.