Legal Issues / Divorce & Alimony

Can I Remarry After Legal Separation(Not Divorce) With My First Wife?

Can I Remarry After Legal Separation(Not Divorce) With My First Wife?

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  3681      11/04/2015

Question –

I am legally separated (not divorce) with my first wife in property from district court and living with my second wife. Both my two children are living with my first wife and I am giving all financial and moral support for everything to my children and first wife as per the decision of the court.

The problem is that my first wife’s family members are torturing me for the police case. But I talked with my advocate and he is saying that nothing will happen to you as your first wife has taken a property from you i.e. another type of divorce or you can chose a new partner for your future surviving life. Now my second wife is pregnant and we are getting married in a temple and not legally registered for marriage. Please explain and suggest legal solution.
-Ram xxxxx

 

Expert Advice –

Dear Ram,


Judicial separation under the Hindu Marriage Act does not amount to divorce. The effect is that the marriage to your first wife still continues but the obligations arising out of the first marriage are temporarily suspended. This means that your second marriage is illegal and amounts to bigamy since you're first marriage still subsists in the eyes of the law. Please ask your lawyer for an earlier case where he has seen the court treat a separation as a divorce merely because the husband also gave a property to the first wife at the time of separation. I have not come across any case that suggests that such an action would amount to a legal divorce. Also please provide me with a copy of the order of separation. 


The best thing you can do is to apply to the same court that granted the separation for a formal decree of divorce. After you get the divorce, you can again marry the second wife and have that marriage registered. It will only be registered from the date on which you get married after the divorce from the first wife. Your main problem is that the child with the second wife is a proof of the fact that you have committed adultery against your first wife while the marriage was still subsisting. But this is a human situation, in which a judge may be willing to take a lenient view. But I feel that you are currently in a very complex legal situation and your best option is to place the facts before the judge and seek a proper solution. 


Since your first marriage still subsists, the family of the first wife can file a complaint of bigamy against you. If they try a complaint against you under Section 498A, your principal defense can be that you were separated and therefore haven't met her since the time of the separation. You can also plead that there is an irretrievable breakdown of marriage. Like I have said earlier, please provide me with a copy of the order by which separation was granted. And also ask your lawyer for any precedent where the court is willing to accept a separation as a divorce merely because a property is given to your first wife at the time of separation. 


- Nikhil Mehra




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