There are prohibitions in the Hindu Marriage Act, 1955, on the second marriage when the first marriage is still surviving. In this regard, following sections of the above Act are relevant:
“5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :—
(i) neither party has a spouse living at the time of the marriage;
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“15. Divorced persons when may marry again.—When 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, it shall be lawful for either party to the marriage to marry again.
“17. 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 Code (45 of 1860) shall apply accordingly.”
Thus, the prohibition is against a marriage when either party has a spouse living at the time of marriage. Violation of this results into the offence of bigamy which is punishable under Indian Penal Code, as mentioned above, and also such marriage is void.
Moreover, a divorced person may marry again after divorce after the period of appeal is over (if such appeal is not filed), which is a period of 90 days, and after dismissal of appeal if any such appeal was filed. Therefore, after a decree of divorce is passed, after waiting for the period of appeal of 90 days to be over, a person can marry again if no such appeal is filed. Till the period mentioned above in Section 17, no party to the divorce proceedings can marry.
However, there is no legal prohibition mentioned in the Hindu Marriage Act for merely advertising for searching for a new partner during the pendency of the divorce proceedings. Thus, there does not appear to be a legal bar on such search for a new partner. However, there may be ethical or moral issues in searching for a new partner at a time when the existing marriage is yet to be formally dissolved.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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