Can a wife seek divorce if her husband has another wife living?

Question

I recently discovered my husband has another wife who is still alive from an earlier marriage. Can I use this as a ground to seek divorce? I would like to understand which provision governs this, what it entitles me to, and how long I have before the remedy lapses. I also want to know whether I need a lawyer for this or can do it myself.

MyVakeel Legal Desk · Accepted Answer

In India, the answer to "Can a wife seek divorce if her husband has another wife living?" turns on Hindu Marriage Act 1955, Section 13(2)(i), Hindu Marriage Act 1955, Section 5 and Indian Penal Code 1860, Section 494. The points below set out the position and then what to do about it, in the order it should be done.

Section 13(2)(i) gives a wife an exclusive ground to seek divorce if, at the time of her marriage, the husband already had another wife from a marriage solemnised before the Hindu Marriage Act came into force who was still living at the time the petition is presented.

This provision was intended to protect wives in marriages where the husband's earlier marriage predated the Act's 1955 monogamy requirement under Section 5, which did not automatically invalidate such pre-Act marriages.

If the husband's second marriage occurred after the Hindu Marriage Act came into force while the first marriage was still subsisting, that second marriage itself is void under Section 11, and the aggrieved second wife would generally seek a declaration of nullity rather than divorce.

Where bigamy has been committed after 1955, the wife whose marriage is being disregarded can also pursue criminal action against the husband under Section 494 of the Indian Penal Code in addition to civil remedies.

The wife invoking Section 13(2)(i) need not prove cruelty or any other fault; the mere existence of the co-wife from before the Act at the time of filing is sufficient to obtain the divorce decree.

What this means for you: 1) Gather documentary proof of the husband's earlier marriage and that the co-wife is still living; 2) Determine whether the earlier marriage predates the Hindu Marriage Act to identify the correct remedy; 3) File the divorce petition citing Section 13(2)(i) if the provision applies to your facts; 4) Consult a lawyer to also evaluate criminal remedies under Section 494 if applicable.

Where the facts are disputed, what usually decides a section 13(2)(i) hindu marriage act matter is the paper trail — dated complaints, acknowledgments and written replies under Hindu Marriage Act 1955, Section 13(2)(i). You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in family law.