This is one of the most frequently asked questions in our Email or DMs. Can a separated man live with his partner without divorce? The Rajasthan High Court in its order dated May 07, 2024 has clarified that the offence of bigamy under the Indian Penal Code (IPC) will not apply if a married spouse lives with another partner – as long as the two have not remarried.
Case:
This is a case where an estranged wife had filed multiple cases against her husband under Section Sections 498-A, 406, 323, 494, 497 IPC. At the time of recording her statement under Section 200 CrPC then, the wife never made any allegations of bigamy (remarriage without divorce) against her husband.
While the divorce between parties remains pending, the man has moved on in his life with a partner, with whom he has been co-habiting since past 20-years.
The estranged wife, on her part, filed the FIR against her separated husband charging him with bigamy after a period of twenty years of the alleged offence.
On earlier occasions, the Senior Civil Judge and Additional Chief Judicial Magistrate, Degana passed an order on July 25, 2018, and the Sessions Judge, Merta passed an order on January 5, 2019 – both ruling in favour of the estranged wife charging the petitioner with bigamy. These orders were then challenged by the man in the High Court.
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Allegations by Estranged Wife
Public Prosecutor AR Choudhary, representing the wife, argued that the police in its investigation had found sufficient evidence to charge the petitioner husband under Section 494 IPC. The wife informed court that her husband had performed customs of Nata marriage and then co-habiting with his partner and thus, this fell under the offence of bigamy.
Defence by Husband
On the other hand, Advocate Navneet Poonia who represented the petitioner husband, highlighted that there were no allegations or evidence suggesting that the petitioner had performed essential religious ceremonies to solemnize a second marriage. The counsel for the husband pointed out that the respondent wife had earlier explicitly stated in her statement under Section 200 of the Criminal Procedure Code (CrPC) that her husband had not married the woman he was cohabiting with.
Most importantly, the husband strongly questioned the intention of his estranged wife to file this complaint after 20-years of the alleged crime. He suggested that this FIR was motivated by his respondent wife’s desire, only to harass and humiliate the petitioner.
READ ORDER | Husband Cannot Be Charged With Bigamy If He Remarried While Divorce Decree Was Stayed, Appeal Dismissed Later
Rajasthan High Court
A single judge bench of Justice Kuldeep Mathur analysed the situation, evidences and facts on record and observed:
It is settled law that the offence punishable under Section 494 IPC would be made out against any person if he/she solemnises a marriage during the lifetime of either the husband or wife; as the case may be.
The mere fact of a man and a woman living together as husband and wife would not be considered as an offence punishable under Section 494 IPC if they have not performed of a valid marriage in accordance with the existing law.
The High Court particularly noted that the estranged wife had filed this FIR after a period of 20-years of the alleged offence and both the complaint and the statements recorded under Section 200 of the Criminal Procedure Code (Cr.P.C.) did not contain any allegations, that the petitioner husband had performed essential religious ceremonies required for a valid marriage under the Hindu Marriage Act, 1955.
Justice Mathur added,
In the present case, there is nothing on record to establish that the petitioner is living with [the woman] after performing ceremonies of Hindu religion with an intention to declare their relation as ‘husband-wife’ under a valid marriage.
The Judge also went on to observe that even if the petitioner had engaged in a Nata marriage with the woman, there was no evidence that the marriage ceremonies required by the Hindu Marriage Act or the essential ceremonies for a Nata marriage were followed.
Concluding the matter, the Rajasthan High Court allowed this criminal miscellaneous petition, quashed the lower court orders and all criminal proceedings pending against the petitioner husband for the offence under Section 494 IPC (bigamy).
READ ORDER | Sex Outside Marriage Not An Offence; Live-in Relationship Cannot Be Constituted As Adultery: Rajasthan High Court
What is Nata Vivah?
According to this custom, in some tribes the woman (wife) can leave her husband and live with another man. This is called Nata. No formal rituals have to be done in this. There is only mutual consent. This practice is prevalent even today in many tribal communities in Rajasthan. This practice is quite similar to the live-in relationship of the modern society. It is said that Nata Pratha was created to give recognition to widows and abandoned women to lead a normal life in society.
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Voice For Men India Take:
- Indian Matrimonial Laws are just not in sync with today’s society
- Divorce should never be the first option, but if a couple has separated say beyond 3-5 years, the courts must grant divorce automatically without entertaining further nuisance from the contesting spouse
- The above matter is a clear example of how our Courts get clogged with such frivolous cases, where disgruntled separated wives can wake up and file criminal cases against husbands even after a period of 20-years
- All these cases can be curtailed, if the divorce is granted within a certain timeframe, thereby, allowing both parties to lead their respective lives, without anyone interfering or stalking the other for life
- In most cases, the separated wives make it their lifelong mission to harass the separated husband and themselves choose to remain idle wasting an entire lifetime
- Such behavior by separated women is surely not normal and our legal system empowers them to keep fanning their vicious and toxic state of mind through multiple cases at court
- In the interim, the men lose out on their prime years of life, because the sole motive of such women is to not permit them remarry or have children
- While many men end up living a lonely life without emotional, physical or moral support, there are several men today, who have moved on with their partners in life with absolute respect and dignity for each other
- Can we get into a live-in relationship without divorce? Voice For Men India gets this query from numerous men in their early 30s, who have been separated since 3-4 years without any legal resolution to their dead marriage
- The law is very clear – no one can stop any adult, be it husband or wife, from living with anyone – after separation (If the reason for separation is adultery, then the case will be completely different)
- The only hitch that such men or women face is that they cannot remarry, until their divorce officially comes through
- Infact, the law even recognises children born from your partner as legitimate
- Our advice to all such separated men is to go slow and not jump into any new relationship as a rebound
- However, after say 2-3 years of separation, you must surely take the plunge if you find someone compatible and live a full life
- You cannot control external forces or mood swings of a perpetually frustrated ex, but you are surely the master of how you want to channelise your life, your well-being
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READ ORDER | Separated Husband Cannot Be Charged With Bigamy If He Lives With Partner Without Divorce
— Voice For Men India (@voiceformenind) May 23, 2024
▪️"Mere fact that man & woman living together as husband & wife not bigamy if they have not performed marriage as per law": Justice Kuldeep Mathurhttps://t.co/mH9eXIEKJc
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