X a Hindu male married Y a female in 2009 with written consent of his first wife P. Is X's marriage with Y valid?

The Absolute Bar of Monogamy

Section 5(i) of the Hindu Marriage Act, 1955 lays down as a foundational condition of every valid Hindu marriage that neither party has a spouse living at the time of the marriage. This condition is not merely a procedural requirement or a technicality — it is the bedrock of the Act's scheme of monogamy. When the legislature enacted the Hindu Marriage Act, it made a decisive and irreversible break from the old Hindu law which permitted polygamy. Marriage under the Act, as the text itself confirms, is the voluntary union of one man with one woman to the exclusion of all others.

A marriage solemnised in contravention of this condition is rendered null and void by the combined operation of section 5(i) and section 11 of the Act. Section 11 in unambiguous terms declares that any marriage solemnised after the commencement of the Act shall be null and void if it contravenes any of the conditions specified in clause (i) of section 5. A prior subsisting marriage is a civil disability of an absolute character, and no private arrangement — be it the written consent of the first wife or a family agreement — can cure this disability.

Consent of the First Wife is Wholly Irrelevant

This is the crux of the problem. Students sometimes assume, quite understandably, that if the first wife consents, the hardship of the rule is removed and the marriage ought to be valid. The law does not take this view, and takes it firmly. As the Andhra Pradesh High Court held in B. Vasundhara v. B. Aswarthanarayana Rao (AIR 2014 AP 51), even the consent of the spouse of the first marriage cannot have the effect of validating the second union.

The reason is not difficult to understand. The bar imposed by section 5(i) is not a bar created for the benefit of the first wife alone, to be waived at her pleasure. It is a bar imposed by the State in the public interest — for the protection of the institution of marriage itself, for social welfare and reform. The Supreme Court, in Ram Prasad v. State of Uttar Pradesh (AIR 1961 All 334), firmly settled that the prohibition of bigamy does not contravene Article 25 of the Constitution and is a legitimate measure of social reform. A provision enacted in the interest of society cannot be waived by a private party.

The Status of the Second Marriage

The marriage between X and Y is, therefore, void ipso jure — void from its very inception, as if it never existed. It does not require a court decree to be treated as void; the parties may disregard it entirely without any formal proceeding. The purpose of obtaining a court decree under section 11 is purely one of precaution or record, not necessity.

Y, the second wife, does not acquire the legal status of a wife by this marriage, and cannot claim to succeed to the properties of X as his widow. In Nimbamma v. Rathnamma (AIR 1999 Kant. 226), it was held that the second wife cannot claim to succeed to the properties of the deceased spouse. Nor can she be termed a "widow" in the legal sense for purposes of any entitlement flowing from the marital relationship.

Criminal Consequences

The civil nullity is accompanied by criminal liability. Section 17 of the Hindu Marriage Act specifically declares that such a marriage is void and, critically, provides that sections 494 and 495 of the Indian Penal Code shall apply accordingly. Section 494 of the IPC makes bigamy — marrying again during the lifetime of a spouse — a criminal offence punishable with imprisonment up to seven years. If X had concealed the fact of his first marriage with P from Y, section 495 would come into play, enhancing the punishment to imprisonment up to ten years. The written consent of P, far from being a defence, does not even constitute a relevant consideration in these criminal proceedings, because the offence is against the law of the State, not merely against the first wife.

Status of Y's Rights and Children

While Y herself does not acquire the status of a wife, the law, in its concern for the innocent, does afford her some limited protections. The Supreme Court held in Ramesh Chandra Daga v. Rameshwari Daga (2004 10 JT 366) that a spouse of a null and void union, entered into during the subsistence of an earlier marriage, is entitled to maintenance under section 25 of the Act upon the passing of a decree of nullity.

More significantly, any children born of the marriage between X and Y are not left without a legal status. Section 16 of the Hindu Marriage Act creates a statutory fiction of legitimacy in favour of children born of void and voidable marriages. Such children are deemed to be the legitimate children of their parents and are entitled to succeed to the property of their parents, though not to the property of any other person. In Bhogadi Kannababu v. Vuggina Pydamma (AIR 2006 SC 2403), the Supreme Court reaffirmed this position and held that children of a void marriage are entitled to inherit the property of both their parents.

In sum, the written consent of P — the first wife — is an exercise in futility insofar as the validity of X's second marriage is concerned. The law of the land speaks with one voice: while P may have been moved by generosity, magnanimity, or domestic compulsion, her consent cannot override a legislative mandate that was enacted not for her benefit alone, but for the benefit of the entire social order.