KRISHNAVENI RAI versus PANKAJ RAI & ANR. on 19 February 2020

1. Leave granted.

2. This appeal is against a judgment and order dated 9.4.2019passed by the High Court for the State of Telangana, dismissing CriminalRevision Case No. 2587 of 2017 filed by the Appellant under SectionF397/401 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”),challenging the order dated 7.8.2017 passed by the Additional MetropolitanSessions Judge, Fast Track Jubilee Hills Bomb Blast Case(JHBBC)-cum-Additional Family Judge at Hyderabad, dismissing the applicationof the Appellant under Section 125 of the Cr.P.C. for maintenance, onGthe purported ground that the marriage between the Appellant and theRespondent No.1 was a nullity.

3. On or about 11.09.1989, the Appellant married one ArvindChenjee in accordance with Hindu rites and customs. The marriage ofthe Appellant with the said Arvind Chenjee was, however, dissolved by H

a decree of divorce dated 28.06.2005, passed by the Family Judge,Hyderabad in O.P. No. 847 of 2000.

4. According to the Appellant, the period of limitation for filing anappeal against the decree of divorce passed on 28.06.2005, expired on26.09.2005. No appeal was filed either by the Appellant or by the saidArvind Chenjee, within the period of limitation.

5. In August, 2006, almost a year after expiry of the period oflimitation, the Appellant filed an appeal against the said order dated26.8.2005. The delay in filing the appeal was condoned by an orderdated 13.7.2007. The operation of the decree does not appear to havebeen stayed.

6. In the meanwhile, in 2006 the said Arvind Chenjee had remarriedShipra Chenjee. The appeal filed by the Appellant against the decree ofdivorce was, from the inception, infructuous. The appeal was, however,formally dismissed as withdrawn on 02.09.2016.

7. On 13.12.2014, over 9 years after the Appellant’s first marriagewith the said Arvind Chenjee was dissolved and long 8 years after theAppellant’s ex-husband had re-married, the Appellant married theRespondent No. 1.

8. Unfortunately, the Appellant’s second marriage also did notwork. The Appellant has alleged that the Respondent No.1 subjectedthe Appellant to harassment and cruelty and even threw her out of thematrimonial home.

9. The Appellant lodged a complaint against the Respondent No.1at the Banjara Hills Police Station, under Sections 406, 498A and 500 ofIndian Penal Code, 1860 (hereinafter referred to as ‘IPC’) which wasregistered as FIR No.470/2015.

10. Claiming that she did not have any independent source ofincome, the Appellant filed an application being M.C. No. 152 of 2015 inthe Court of the Additional Metropolitan Sessions Judge, Fast TrackJubilee Hills Car Bomb Blast Case (JHCBBC)-cum-Additional FamilyJudge, Hyderabad, under Section 125 the Code of Criminal Procedure(Cr.P.C.) for maintenance.

11. The Respondent No.1, on the other hand, filed a suit beingO.P. No. 475 of 2015 in the Additional Family Court, Hyderabad, fordeclaration of nullity of his marriage with the Appellant, inter alia, on the A

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Aground that the marriage had been solemnized during the pendency ofan appeal from the decree of dissolution of the appellant’s marriage withher first husband. According to the Appellant, the suit was a counterblastto the application for maintenance. We are informed that the suit is pendingtrial.

B12. On or about 28.5.2015, the Appellant filed a complaint beforethe IV Metropolitan Magistrate, Hyderabad seeking relief against therespondent No.1 under the Protection of Women from Domestic ViolenceAct, 2005.

13. On or about 22.3.2016, Charge sheet was filed in theCproceedings against the Respondent No.1 inter alia under Sections 406,498A & 500 of the IPC, pursuant to FIR No.470/2015.

14. On or about 15.3.2017, the Respondent No.1 filed an applicationu/s 239 for Cr.P.C for discharge, from the proceedings initiated pursuantto FIR No.470/2015, which was dismissed by the XIII[th] Addl. ChiefDMetropolitan Magistrate, Hyderabad by an order dated 15.3.2017.

15. The Respondent No.1 filed a criminal Revision Petition No.192/2017 in the Court of the Metropolitan Sessions Judge, challenging theaforesaid order dated 15.3.2017 of the XIII[th] Additional ChiefMetropolitan Magistrate, rejecting the application of the Respondent No.1Efor discharge.

16. By an order dated 23.1.2018, the Metropolitan Sessions Judge,Hyderabad allowed the Criminal Revision Petition No.127/2017 anddischarged the Respondent No.1 from the proceedings under Section406, 498A and 500 of the IPC. The Appellant contends that the orderFdated 23.1.2018 discharging the Respondent No.1, was passed withoutnotice to the Appellant.

17. In the meanwhile, by an order dated 7.8.2017, the AdditionalMetropolitan Sessions Judge, Fast Track Jubilee Hills Car Bomb BlastCase (JHCBBC)-cum-Additional Family Judge, Hyderabad, dismissedthe application filed by the Appellant, claiming maintenance under SectionG125 CrPC.

18. The Appellant filed a Criminal Revision Petition being Crl.R.P. No.149 of 2019 in the High Court of Telangana inter alia challengingthe order dated 23.1.2018 discharging the Respondent No.1 from theproceeding under Sections 406, 498A and 500 of the IPC and also madeH

an application being I.A. No.8 of 2019 for suspension of the said orderof discharge. By an order dated 15.2.2019, the High Court suspendedthe said order of discharge.

19. The Appellant also filed a Criminal Revision Case No.2587 of2017 before the High Court challenging the order dated 7.8.2017 passedby the Additional Metropolitan Sessions Judge, Fast Track Jubilee HillsCar Bomb Blast Case (JHCBBC)-cum-Additional Family Judge,Hyderabad, dismissing the application being M.C. No.152 of 2015 of theAppellant for maintenance under Section 125 of the Cr.P.C.

20. The Appellant filed a Criminal Revision Petition No.2587challenging the aforesaid order dated 7.8.2017. The Respondent No.1,on the other hand, filed a petition under Section 482 of the Cr.P.C., forquashing of the criminal proceedings against him under Sections 406,498A and 506 of the IPC. By an order dated 9.4.2019 the said criminalproceedings were quashed on the ground that the marriage of theAppellant with the Respondent No.1, solemnised during the pendencyof an appeal from the decree of dissolution of the appellant’s marriagewith her first husband, was null and void.

21. An application for pendente lite maintenance being IA No.1192of 2017 filed by the Appellant in the Court of the 1[st] Additional FamilyJudge, Hyderabad in O.P. No. 475 of 2015 being the pending suit of theRespondent No.1 for declaration of nullity of the marriage between theAppellant and the Respondent No.1, was allowed by an order dated19.12.2018 whereby the Respondent No.1 was directed to payRs. 20,000/- per month from the date of the application, that is, 30.11.2017and an additional Rs.20,000/- towards litigation expenses.

22. A Civil Revision Petition No.242 of 2019 filed by the RespondentNo.1, challenging the aforesaid order dated 19.12.2018 passed by theFamily Court has been dismissed by a Single Bench of the High Courtby a well-reasoned judgment and order dated 19.03.2019.

23. The Criminal Revision Petition No.2587 of 2017 filed by theAppellant against the order dated 7.8.2017 passed by the AdditionalMetropolitan Sessions Judge, Fast Track Jubilee Hills Car Bomb BlastCase (JHCBBC)-cum-Additional Family Judge, Hyderabad dismissingthe application under Section 125 of the Cr.P.C. was also dismissed byan order dated 9.4.2019, on the same ground on which the Criminalproceedings against the Respondent No.1 had been quashed.

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A24. As recorded by the High Court, it is not in dispute that theAppellant and the Respondent No.1 had got married as per prevailingcustoms on 13.12.2014. The short question in this appeal is, whether theAppellant could have been denied maintenance under Section 125 of theCr.P.C. on the ground that her marriage with the Respondent No.1 wasa nullity, just because the marriage had taken place while an appeal filedBby the Appellant against a decree of dissolution of marriage with herfirst husband was still pending. In other words, is a second marriageperformed during the pendency of an appeal from a decree of divorce anullity, even though there were no stay of operation of the decree.

25. Sections 5, 11 and 15 of the Hindu Marriage Act, 1955, relevantCto this appeal are set out hereinbelow for convenience: - “5. Conditions for a Hindu Marriage.- A marriage may besolemnized between any two Hindus, if the followingconditions are fulfilled, namely:- D(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party,- (a)is incapable of giving a valid consent to it inconsequence of unsoundness of mind; or (b)though capable of giving a valid consent, has beenEsuffering from mental disorder of such a kind or tosuch an extent as to be unfit for marriage and theprocreation of children; or

(c) has been subject to recurrent attacks of insanity orepilepsy; F

(iii) the bridegroom has completed the age of twenty-oneyears and the bride, the age of eighteen years at thetime of the marriage;

(iv) the parties are not within the degrees of prohibitedGrelationship, unless the custom or usage governingeach of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unlessthe custom or usage governing each of them permitsof a marriage between the two; H

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11. Void marriages.- Any marriage solemnized after thecommencement of this Act shall be null and void and may, ona petition presented by either party thereto, against the otherparty be so declared by a decree of nullity if it contravenesany one of the conditions specified in clauses (i), (iv) and (v)of Section 5.

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15. Divorced persons when may marry again.- When amarriage has been dissolved by a decree of divorce and eitherthere is no right of appeal against the decree or, if there issuch a right of appeal, the time for appealing has expiredwithout an appeal having been presented, or an appeal hasbeen presented but has been dismissed, it shall be lawful foreither party to the marriage to marry again.”

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26. It is well settled that a marriage which is null and void is nomarriage in the eye of law. Where the marriage is a nullity applicationfor maintenance is liable to be set aside on that ground alone. UnderSection 5 of the Hindu Marriage Act, a marriage may validly besolemnized between any two Hindus, subject to the following conditions:- D

(i) Neither party has a spouse living at the time of marriage[(Section 5(i) of the Hindu Marriage Act]; E

(ii) Neither party was incapable of giving valid consent of themarriage in circumstances specified in Section 5(ii) of theHindu Marriage Act;

(iii) The parties to the marriage are of requisite age, that is, thebridegroom should have completed 21 years of age and thebride 18 years of age, at the time of marriage [Section 5(iii)of the Hindu Marriage Act]; F

(iv) The parties should not be within the degree of prohibitedrelationship unless the custom or usage governing each ofthem permits such marriage [(Section 5(iv) of the HinduGMarriage Act];

(v) Parties are not sapindas of each other unless the custom orusage governing each of them permits between two. [(Section5 (v) of the Hindu Marriage Act]; H

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27. Section 11 of the Hindu Marriage Act provides that anymarriage solemnized after the commencement of this Act shall be nulland void and may on a petition presented by either party thereto, againstthe other party, be so declared by a decree of nullity, if it contravenesany of the conditions in Clauses (i), (iv) and (v) of the Section 5.

B28. A careful reading of Sections 5, 11 and 15 makes it amplyclear that while Section 5 specifies the conditions on which a marriagemay be solemnized between two Hindus, only contravention of some ofthose conditions render a marriage void.

29. Marriage in contravention of Section 5(i) of the Hindu MarriageCAct, that is, where either party or both have a spouse living at the time ofmarriage is void. Similarly, a marriage is void if the parties to the marriageare within the degrees of prohibited relationship unless the custom orusage governing each of them permits of such marriage, or if the partiesare sapindas of each other unless, again, the custom or usage governingeach of them permits marriage between the two. [Sections 5(iv) andD5(v)]

30. Contravention of Sections 5(ii) or 5(iii) of the Hindu marriageAct does not render the marriage null and void. In such a case, themarriage is voidable at the option of the underaged party to the marriageor the party who could not have validly consented to the marriage.

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31. Section 15 clarifies that when a marriage has been dissolvedby a decree of divorce, and there is no right of appeal against the decree,or if there is such a right of appeal, the time for appealing has expiredwithout an appeal having been preferred, or an appeal has been presentedbut the same has been dismissed, it shall be lawful for either party to theFmarriage to marry again. Had it been the legislative intent that a marriageduring the pendency of an appeal should be declared void, Section 11would expressly have provided so.

32. As held by this Court in Anurag Mittal v. Shaily MishraMittal reported in (2018) 9 SCC 691, the object of Section 15 is toGprovide protection to the person who had filed an appeal against thedecree of dissolution of marriage and to ensure that such appeal was notfrustrated. The protection afforded by Section 15 is primarily to a personcontesting the decree of divorce. As observed by Bobde, J. in hisconcurring judgment in Anurag Mittal (supra):- H

“I am in agreement with the view taken by Nageswara Rao, J.but it is necessary to state how the question before us has alreadybeen settled by the decision in Lila Gupta v. Laxmi Narain [LilaGupta v. Laxmi Narain, (1978) 3 SCC 258] . Even when the wordsof the proviso were found to be prohibitory in clear negative terms — “it shall not be lawful”, etc., this Court held that the incapacityto marry imposed by the proviso did not lead to an inference ofnullity, vide para 9 of Lila Gupta [Lila Gupta v. Laxmi Narain,(1978) 3 SCC 258] . It is all the more difficult to infer nullity whenthere is no prohibition; where there are no negative words but onthe other hand positive words like “it shall be lawful”. Assumingthat a marriage contracted before it became lawful to do so wasunlawful and the words create a disability, it is not possible toinfer a nullity or voidness vide paras 9 and 10 of Lila Gupta case…

“………. What is held in essence is that if a provision of lawprescribes an incapacity to marry and yet the person marries whileunder that incapacity, the marriage would not be void in the absenceof an express provision that declares nullity. Quae incapacityimposed by statute, there is no difference between an incapacityimposed by negative language such as “it shall not be lawful” oran incapacity imposed by positive language like “it shall be lawful(in certain conditions, in the absence of which it is impliedlyunlawful)”. It would thus appear that the law is already settled bythis Court that a marriage contracted during a prescribed periodwill not be void because it was contracted under an incapacity.Obviously, this would have no bearing on the other conditions of avalid marriage. The decision in Lila Gupta case thus covers thepresent case on law.”

33. In Leela Gupta v. Laxmi Narain & Ors. reported in (1978)

3 SCC 258, this Court held:

“…..the interdict of law is that it shall not be lawful for a certainparty to do a certain thing which would mean that if that act isdone it would be unlawful. But whenever a statute prohibits acertain thing being done thereby making it unlawful, withoutproviding consequence for the breach,it is not legitimate tosay that such a thing when done is void because that wouldtantamount to saying that every unlawful act is void.” (Paragraph10).

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A“….Merely because each one of them is prohibited fromcontracting a second marriage for a certain period, it could notbe said that despite there being a decree of divorce for certainpurposes the first marriage subsists or is presumed to subsist……..An incapacity for second marriage for a certain period does nothave effect of treating the former marriage as subsisting…..”B(paragraph 13).

“Thus, examining the matter from all possible angles and keepingin view the fact that the scheme of the Act provides for treatingcertain marriages void and simultaneously some marriages whichare made punishable yet not void and no consequences havingCbeen provided for in respect of the marriage in contravention ofthe proviso to Section 15, it cannot be said that such marriagewould be void” (paragraph 20)”

34. In any case, the bar of Section 15 is not at all attracted in thefacts and circumstances of this case, where the appeal from the decreeDof divorce had been filed almost a year after expiry of the period oflimitation for filing an appeal. Section 15 permits a marriage afterdissolution of a marriage if there is no right of appeal against the decree,or even if there is such a right to appeal, the time of appealing hasexpired without an appeal having been presented, or the appeal has beenEpresented but has been dismissed. In this case no appeal had beenpresented with the period prescribed by limitation.

35. The bar, if any, under Section 15 of the Hindu Marriage Actapplies only if there is an appeal filed within the period of limitation, andnot afterwards upon condonation of delay in filing an appeal unless ofFcourse, the decree of divorce is stayed or there is an interim order ofCourt, restraining the parties or any of them from remarrying during thependency of the appeal.

36. As observed above, the appeal was infructuous for all practicalpurposes, from the inception, since the Appellant’s ex-husband hadGlawfully remarried after expiry of the period of limitation for filing anappeal, there being no appeal till then.

37. It could never have been the legislative intent that a marriagevalidly contracted after the divorce and after expiry of the period oflimitation to file an appeal from the decree of divorce should renderedvoid on the filing of a belated appeal. If the marriage of the Appellant’sH

ex-husband in 2006 was a valid marriage in law recognizing that he hadno living spouse, the subsequent re-marriage of the Appellant could alsonot be void. We are in full agreement with the view of this Court inLeela Gupta (supra) that the effect of the prohibition against one of theparties from contracting a second marriage for a certain period is not tonullify the divorce and continue the dissolved marriage, as if the samewere subsisting.

38. Learned counsel appearing on behalf of the Appellant hasalso argued that maintenance cannot be refused on the ground of nullityof marriage, until there is a declaration of nullity of marriage by acompetent Court, in appropriate proceedings under Section 11 of theHindu Marriage Act. We need not go into this question in view of ourfinding that a marriage contracted during the pendency of an appealfrom a decree is not ab initio void, and certainly not when such anappeal is filed after expiry of the period of limitation.

39. The judgment and order under appeal confirming the orderdated 7.8.2017 by relying on the order in Criminal Petition 14188 of 2015cannot be sustained. The order dated 02.09.2016 of dismissal of theappeal was only a formality.

40. The appeal is allowed. The order under appeal and the orderdated 7.8.2017 of the Additional Metropolitan Sessions Judge, Hyderabaddismissing M.C No.152 of 2015 are set aside. The application beingM.C. No. 152 of 2015 is remitted to the appropriate Court havingjurisdiction for determination of the Appellant’s claim to maintenance.In the meanwhile, the Respondent No.1 shall pay to the Appellantmaintenance of Rs.20,000/- per month, as directed by the Family Courtby its order dated 19.12.2018, without prejudice to the rights andcontentions of either party, until further orders of the appropriate Court/Family Court in the application under Section 125 of the Cr.P.C., or inthe suit being O.P. No. 475 of 2015. The Respondent No.1 shall also paythe Appellant a lump sum amount of Rs.1,00,000/- towards arrears ofmaintenance within four weeks from date, which may later be adjustedtowards arrears of maintenance as may be determined by the appropriateCourt/Family Court.

Devika Gujral

Appeal allowed.

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