Law Web: Supreme Court: Marriage performed during pendency of appeal is not void if appeal is filed after expiry of period of limitation

The short question in this appeal is, whether

the Appellant could have been denied maintenance under Section

125 of the Cr.P.C. on the ground that her marriage with the

Respondent No.1 was a nullity, just because the marriage had taken

place while an appeal filed by the Appellant against a decree of

dissolution of marriage with her first husband was still pending. In

other words, is a second marriage performed during the pendency of

an appeal from a decree of divorce a nullity, even though there were

no stay of operation of the decree.

In any case, the bar of Section 15 of Hindu marriage Act is not at all attracted in the

facts and circumstances of this case, where the appeal from the

decree of divorce had been filed almost a year after expiry of the

period of limitation for filing an appeal. Section 15 permits a

marriage after dissolution 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 has expired without an appeal having been presented, or

the appeal has been presented but has been dismissed. In this case

no appeal had been presented with the period prescribed by

limitation.

35. The bar, if any, under Section 15 of the Hindu Marriage Act

applies only if there is an appeal filed within the period of limitation,

and not afterwards upon condonation of delay in filing an appeal

unless of course, the decree of divorce is stayed or there is an interim

order of Court, restraining the parties or any of them from remarrying

during the pendency of the appeal.

36. As observed above, the appeal was infructuous for all practical

purposes, from the inception, since the Appellant’s ex-husband had

lawfully remarried after expiry of the period of limitation for filing an

appeal, there being no appeal till then.

37. It could never have been the legislative intent that a marriage

validly contracted after the divorce and after expiry of the period of

limitation to file an appeal from the decree of divorce should rendered

void on the filing of a belated appeal. If the marriage of the

Appellant’s ex-husband in 2006 was a valid marriage in law

recognizing that he had no living spouse, the subsequent re-marriage

of the Appellant could also not be void. We are in full agreement

with the view of this Court in Leela Gupta (supra) that the effect of

the prohibition against one of the parties from contracting a second

marriage for a certain period is not to nullify the divorce and continue

the dissolved marriage, as if the same were subsisting.

38. Learned counsel appearing on behalf of the Appellant has also

argued that maintenance cannot be refused on the ground of nullity

of marriage, until there is a declaration of nullity of marriage by a

competent Court, in appropriate proceedings under Section 11 of the

Hindu Marriage Act. We need not go into this question in view of our

finding that a marriage contracted during the pendency of an appeal

from a decree is not ab initio void, and certainly not when such an

appeal is filed after expiry of the period of limitation.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 321 OF 2020

Krishnaveni Rai Vs Pankaj Rai

Indira Banerjee, J.

Dated:FEBRUARY 19, 2020

Leave granted.

2. This appeal is against a judgment and order dated 9.4.2019

passed by the High Court for the State of Telangana, dismissing

Criminal Revision Case No. 2587 of 2017 filed by the Appellant under

Section 397/401 of the Code of Criminal Procedure, 1973 (for short

“Cr.P.C”), challenging the order dated 7.8.2017 passed by the

Additional Metropolitan Sessions Judge, Fast Track Jubilee Hills Bomb

Blast Case(JHBBC)-cum-Additional Family Judge at Hyderabad,

dismissing the application of the Appellant under Section 125 of the

Cr.P.C. for maintenance, on the purported ground that the marriage

between the Appellant and the Respondent No.1 was a nullity.

3. On or about 11.09.1989, the Appellant married one Arvind

Chenjee in accordance with Hindu rites and customs. The marriage of

the Appellant with the said Arvind Chenjee was, however, dissolved

by 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 an

appeal against the decree of divorce passed on 28.06.2005, expired

on 26.09.2005. No appeal was filed either by the Appellant or by the

said Arvind Chenjee, within the period of limitation.

5. In August, 2006, almost a year after expiry of the period of

limitation, the Appellant filed an appeal against the said order dated

26.8.2005. The delay in filing the appeal was condoned by an order

dated 13.7.2007. The operation of the decree does not appear to

have been stayed.

6. In the meanwhile, in 2006 the said Arvind Chenjee had

remarried Shipra Chenjee. The appeal filed by the Appellant against

the decree of divorce 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 marriage

with the said Arvind Chenjee was dissolved and long 8 years after the

Appellant’s ex-husband had re-married, the Appellant married the

Respondent No.1

8. Unfortunately, the Appellant’s second marriage also did not

work. The Appellant has alleged that the Respondent No.1 subjected the Appellant to harassment and cruelty and even threw her out of

the matrimonial home.

9. The Appellant lodged a complaint against the Respondent No.1

at the Banjara Hills Police Station, under Sections 406, 498A and 500

of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) which was

registered as FIR No.470/2015.

10. Claiming that she did not have any independent source of

income, the Appellant filed an application being M.C. No. 152 of 2015

in the Court of the Additional Metropolitan Sessions Judge, Fast Track

Jubilee Hills Car Bomb Blast Case (JHCBBC)-cum-Additional Family

Judge, 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 being O.P.

No. 475 of 2015 in the Additional Family Court, Hyderabad, for

declaration of nullity of his marriage with the Appellant, inter alia, on

the ground that the marriage had been solemnized during the

pendency of an appeal from the decree of dissolution of the

appellant’s marriage with her first husband. According to the

Appellant, the suit was a counterblast to the application for

maintenance. We are informed that the suit is pending trial.

12. On or about 28.5.2015, the Appellant filed a complaint before

the IV Metropolitan Magistrate, Hyderabad seeking relief against the

respondent No.1 under the Protection of Women from Domestic

Violence Act, 2005.

13. On or about 22.3.2016, Charge sheet was filed in the

proceedings 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

application u/s 239 for Cr.P.C for discharge, from the proceedings

initiated pursuant to FIR No.470/2015, which was dismissed by the

XIIIth Addl. Chief Metropolitan 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 the aforesaid order dated 15.3.2017 of the XIIIth

Additional Chief Metropolitan Magistrate, rejecting the application of

the Respondent No.1 for discharge.

16. By an order dated 23.1.2018, the Metropolitan Sessions Judge,

Hyderabad allowed the Criminal Revision Petition No.127/2017 and

discharged the Respondent No.1 from the proceedings under Section

406, 498A and 500 of the IPC. The Appellant contends that the order

dated 23.1.2018 discharging the Respondent No.1, was passed

without notice to the Appellant.

17. In the meanwhile, by an order dated 7.8.2017, the Additional

Metropolitan Sessions Judge, Fast Track Jubilee Hills Car Bomb Blast

Case (JHCBBC)-cum-Additional Family Judge, Hyderabad, dismissed

the application filed by the Appellant, claiming maintenance under

Section 125 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 challenging

the order dated 23.1.2018 discharging the Respondent No.1 from the

proceeding under Sections 406, 498A and 500 of the IPC and also

made an application being I.A. No.8 of 2019 for suspension of the said

order of discharge. By an order dated 15.2.2019, the High Court

suspended the said order of discharge.

19. The Appellant also filed a Criminal Revision Case No.2587 of

2017 before the High Court challenging the order dated 7.8.2017

passed by the Additional Metropolitan Sessions Judge, Fast Track

Jubilee Hills Car Bomb Blast Case (JHCBBC)-cum-Additional Family

Judge, Hyderabad, dismissing the application being M.C. No.152 of

2015 of the Appellant for maintenance under Section 125 of the

Cr.P.C.

20. The Appellant filed a Criminal Revision Petition No.2587

challenging 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., for quashing of the criminal proceedings against him under

Sections 406, 498A and 506 of the IPC. By an order dated 9.4.2019

the said criminal proceedings were quashed on the ground that the

marriage of the Appellant with the Respondent No.1, solemnised

during the pendency of an appeal from the decree of dissolution of

the appellant’s marriage with her first husband, was null and void.

21. An application for pendente lite maintenance being IA No.1192

of 2017 filed by the Appellant in the Court of the 1st Additional Family Judge, Hyderabad in O.P. No. 475 of 2015 being the pending suit of

the Respondent No.1 for declaration of nullity of the marriage

between the Appellant and the Respondent No.1, was allowed by an

order dated 19.12.2018 whereby the Respondent No.1 was directed

to pay Rs.20,000/- per month from the date of the application, that is,

30.11.2017 and an additional Rs.20,000/- towards litigation expenses.

22. A Civil Revision Petition No.242 of 2019 filed by the Respondent

No.1, challenging the aforesaid order dated 19.12.2018 passed by the

Family Court has been dismissed by a Single Bench of the High Court

by a well-reasoned judgment and order dated 19.03.2019.

23. The Criminal Revision Petition No.2587 of 2017 filed by the

Appellant against the order dated 7.8.2017 passed by the Additional

Metropolitan Sessions Judge, Fast Track Jubilee Hills Car Bomb Blast

Case (JHCBBC)-cum-Additional Family Judge, Hyderabad dismissing

the application under Section 125 of the Cr.P.C. was also dismissed by

an order dated 9.4.2019, on the same ground on which the Criminal

proceedings against the Respondent No.1 had been quashed.

24. As recorded by the High Court, it is not in dispute that the

Appellant and the Respondent No.1 had got married as per prevailing

customs on 13.12.2014. The short question in this appeal is, whether

the Appellant could have been denied maintenance under Section

125 of the Cr.P.C. on the ground that her marriage with the

Respondent No.1 was a nullity, just because the marriage had taken

place while an appeal filed by the Appellant against a decree of

dissolution of marriage with her first husband was still pending. In

other words, is a second marriage performed during the pendency of

an appeal from a decree of divorce a nullity, even though there were

no stay of operation of the decree.

25. Sections 5, 11 and 15 of the Hindu Marriage Act, 1955, relevant

to this appeal are set out hereinbelow for convenience: -

“5. Conditions for a Hindu Marriage.- A marriage may

be solemnized between any two Hindus, if the following

conditions are fulfilled, namely:-

(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 in

consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has

been suffering from mental disorder of such a

kind or to such an extent as to be unfit for

marriage and the procreation of children; or

insanity or epilepsy;

(iii) the bridegroom has completed the age of

twenty-one years and the bride, the age of

eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of

prohibited relationship, unless the custom or

usage governing each of them permits of a

marriage between the two;

(v) the parties are not sapindas of each other,

unless the custom or usage governing each of

them permits of a marriage between the two;

xxx xxx xxx

11. Void marriages.- Any marriage solemnized after the

commencement of this Act shall be null and void and may,

on a petition presented by either party thereto, against the

other party be so declared by a decree of nullity if it

contravenes any one of the conditions specified in clauses

(i), (iv) and (v) of Section 5.

xxx xxx xxx

15. Divorced persons when may marry again.- When a

marriage has been dissolved by a decree of divorce and

either there is no right of appeal against the decree or, if

there is such a right of appeal, the time for appealing has

expired without an appeal having been presented, or an

appeal has been presented but has been dismissed, it shall

be lawful for either party to the marriage to marry again.”

26. It is well settled that a marriage which is null and void is no

marriage in the eye of law. Where the marriage is a nullity

application for maintenance is liable to be set aside on that ground

alone. Under Section 5 of the Hindu Marriage Act, a marriage may

validly be solemnized between any two Hindus, subject to the

following conditions:-

(i) Neither party has a spouse living at the time of

marriage [(Section 5(i) of the Hindu Marriage Act];

(ii) Neither party was incapable of giving valid consent of

the marriage in circumstances specified in Section 5(ii)

of the Hindu Marriage Act;

(iii) The parties to the marriage are of requisite age, that is,

the bridegroom should have completed 21 years of age

and the bride 18 years of age, at the time of marriage

[Section 5(iii) of the Hindu Marriage Act];

(iv) The parties should not be within the degree of

prohibited relationship unless the custom or usage

governing each of them permits such marriage

[(Section 5(iv) of the Hindu Marriage Act];

(v) Parties are not sapindas of each other unless the

custom or usage governing each of them permits

between two. [(Section 5 (v) of the Hindu Marriage Act];

27. Section 11 of the Hindu Marriage Act provides that any

marriage solemnized after the commencement of this Act shall be

null and void and may on a petition presented by either party thereto,

against the other party, be so declared by a decree of nullity, if it

contravenes any of the conditions in Clauses (i), (iv) and (v) of the

Section 5.

28. A careful reading of Sections 5, 11 and 15 makes it amply clear

that while Section 5 specifies the conditions on which a marriage may

be solemnized between two Hindus, only contravention of some of

those conditions render a marriage void.

29. Marriage in contravention of Section 5(i) of the Hindu Marriage

Act, that is, where either party or both have a spouse living at the

time of marriage is void. Similarly, a marriage is void if the parties to

the marriage are within the degrees of prohibited relationship unless

the custom or usage governing each of them permits of such

marriage, or if the parties are sapindas of each other unless, again,

the custom or usage governing each of them permits marriage

between the two. [Sections 5(iv) and 5(v)]

30. Contravention of Sections 5(ii) or 5(iii) of the Hindu marriage

Act does not render the marriage null and void. In such a case, the

marriage is voidable at the option of the underaged party to the

marriage or the party who could not have validly consented to the

marriage.

31. Section 15 clarifies that when a marriage has been dissolved by

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

expired without an appeal having been preferred, or an appeal has

been presented but the same has been dismissed, it shall be lawful

for either party to the marriage to marry again. Had it been the

legislative intent that a marriage during the pendency of an appeal

should be declared void, Section 11 would expressly have provided

so.

32. As held by this Court in Anurag Mittal v. Shaily Mishra

Mittal reported in (2018) 9 SCC 691, the object of Section 15 is to

provide protection to the person who had filed an appeal against the

decree of dissolution of marriage and to ensure that such appeal was

not frustrated. The protection afforded by Section 15 is primarily to a

person contesting the decree of divorce. As observed by Bobde, J. in

his concurring judgment in Anurag Mittal (supra):-

“I am in agreement with the view taken by Nageswara Rao, J.

but it is necessary to state how the question before us has

already been settled by the decision in Lila Gupta v. Laxmi

Narain [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . Even

when the words of the proviso were found to be prohibitory in

clear negative terms — “it shall not be lawful”, etc., this Court

held that the incapacity to marry imposed by the proviso did

not lead to an inference of nullity, vide para 9 of Lila Gupta

[Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . It is all the

more difficult to infer nullity when there is no prohibition;

where there are no negative words but on the other hand

positive words like “it shall be lawful”. Assuming that a

marriage contracted before it became lawful to do so was

unlawful and the words create a disability, it is not possible to

infer a nullity or voidness vide paras 9 and 10 of Lila Gupta

case…

“………. What is held in essence is that if a provision of law

prescribes an incapacity to marry and yet the person marries

while under that incapacity, the marriage would not be void

in the absence of an express provision that declares nullity.

Quae incapacity imposed by statute, there is no difference

between an incapacity imposed by negative language such as

“it shall not be lawful” or an incapacity imposed by positive

language like “it shall be lawful (in certain conditions, in the

absence of which it is impliedly unlawful)”. It would thus

appear that the law is already settled by this Court that a

marriage contracted during a prescribed period will not be

void because it was contracted under an incapacity.

Obviously, this would have no bearing on the other conditions

of a valid marriage. The decision in Lila Gupta case thus

covers the present 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

certain party to do a certain thing which would mean that if

that act is done it would be unlawful. But whenever a statute

prohibits a certain thing being done thereby making it

unlawful, without providing consequence for the

breach, it is not legitimate to say that such a thing when

done is void because that would tantamount to saying that

every unlawful act is void.” (Paragraph 10).

“….Merely because each one of them is prohibited from

contracting a second marriage for a certain period, it could

not be said that despite there being a decree of divorce for

certain purposes the first marriage subsists or is presumed to

subsist…….. An incapacity for second marriage for a certain

period does not have effect of treating the former marriage

as subsisting…..” (paragraph 13).

“Thus, examining the matter from all possible angles and

keeping in view the fact that the scheme of the Act provides

for treating certain marriages void and simultaneously some

marriages which are made punishable yet not void and no

consequences having been provided for in respect of the

marriage in contravention of the proviso to Section 15, it

cannot be said that such marriage would be void” (paragraph

20)”

34. In any case, the bar of Section 15 is not at all attracted in the