Section 5 of the Hindu Marriage act, 1955 prescribes the essential conditions for a marriage between two Hindus after the commencement of the Act. First condition is that neither party has a spouse living at the time of marriage. A marriage in contravention of this conditions is void ab initio. Section 17 of the Act expressly declares such marriage to be void and the concerned person to be guilty of an offence of bigamy under Ss. 494 and 495 of the Penal Code.
If a married person marries another woman, the first wife can seek a declaration that the second marriage of her husband is a nullity. She can prosecute her husband for an offence of bigamy. Further, she can apply under S.13(i) (i) of the Hindu Marriage Act 1955 for dissolution of her marriage by a decree of divorce on the ground that her husband, after the solemnization of the marriage, had voluntary sexual intercourse with another female.
Still further, she can claim maintenance from her said husband under S.18(i) of the Hindu Adoptions and
Maintenance Act 1956. The right of a wife to m maintenance is an incident of the status or estate of
matrimony and a Hindu is under a legal obligation to maintain his wife. Sub Section (i) ofS.18 of the Act
Substantially reiterates .that right.
The question is whether she is entitled to separate residence within the meaning of S.18(2) of the said Act. This Sub Section says that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim, to maintenance if he has any other wife living.
Section 9 of the Hindu Marriage Act, 1955 provides "When either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. The foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort consortium of the other spouse.