Friday, 21 February 2020

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.
5
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
(c) has been subject to recurrent attacks of
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
8
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)”
12
34. In any case, the bar of Section 15 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.
39. The judgment and order under appeal confirming the order
dated 7.8.2017 by relying on the order in Criminal Petition 14188 of
2015 cannot be sustained. The order dated 02.09.2016 of dismissal
of the appeal was only a formality.
40. The appeal is allowed. The order under appeal and the
order dated 7.8.2017 of the Additional Metropolitan Sessions
Judge, Hyderabad dismissing M.C No.152 of 2015 are set aside.
The application being M.C. No. 152 of 2015 is remitted to the
appropriate Court having jurisdiction for determination of the

Appellant’s claim to maintenance. In the meanwhile, the
Respondent No.1 shall pay to the Appellant maintenance of
Rs.20,000/- per month, as directed by the Family Court by its
order dated 19.12.2018, without prejudice to the rights and
contentions of either party, until further orders of the appropriate
Court/Family Court in the application under Section 125 of the
Cr.P.C., or in the suit being O.P. No. 475 of 2015. The Respondent
No.1 shall also pay the Appellant a lump sum amount of
Rs.1,00,000/- towards arrears of maintenance within four weeks
from date, which may later be adjusted towards arrears of
maintenance as may be determined by the appropriate
Court/Family Court.
.................................J.
[INDIRA BANERJEE]
.................................J.
[M.R. SHAH]
FEBRUARY 19, 2020;
NEW DELHI.
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