Kerala HC: Muslim Wife Residing Separately From Husband On His Contracting Second Marriage Can Claim Maintenance Under CrPC /BNSS

 The Muslim Personal Law, though, permits the husband to contract a second marriage during the subsistence of the first marriage in exceptional circumstances, specifically mandates that the husband is bound to treat both wives equally and equitably. A Muslim wife who resides separately from her husband on his contracting a second marriage is not disentitled from claiming her statutory right of maintenance under CrPC/BNSS [See Badruddin v Aisha Begum (1957) All. LJ. 300]. The fact that the husband has a second wife and is liable to maintain her cannot be a factor in denying maintenance to the first wife or reducing the quantum of maintenance she is entitled to.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RPFC NO. 334 OF 2022

 HASEENA  Vs  SUHAIB

PRESENT

 DR. JUSTICE KAUSER EDAPPAGATH

Dated:  15TH DAY OF JANUARY 2025

Citation: 2025:KER:2953.

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Whether Marrying Another Woman Without Wife's Consent Constitutes Cruelty U/S 498-A IP?

When a husband performs the second marriage while his first marriage is alive, a question arises as to whether such act on the part of husband would amount to cruelty within the meaning of Section 498-A of the IPC. As per explanation to Section 498-A of the IPC, cruelty means; any wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical) of the woman. It also includes harassment caused with a view to coercing the woman or any person related to her to meet any unlawful demand for any property or valuable security. Here, we are concerned with wilful conduct of such a nature which has caused or which is likely to cause danger to health of non-applicant no. 2. Marrying another woman by the husband during existence of his first marriage is something which is most likely to cause trauma and grave injury to the mental health of the first wife, unless it has been done with the consent of the first wife. If the act of performance of second marriage during subsistence of the first marriage is not interpreted as

amounting to cruelty contemplated under Section 498-A of the IPC, it would frustrate the legislative intent to prevent the torture to a woman by her husband or by relative of her husband and, therefore, that interpretation has to be adopted which sub-serves the object sought to be achieved by the Legislation. Useful reference in this regard may be made to the cases of B.S. Joshi and ors. Vs. State Of Haryana and anr. [2003 Cri L.J. 2028 (SC)] and Reema Aggarwal Vs. Anupam and ors. [(2004) 3 SCC 199]. By these parameters, we find here that the second marriage performed by applicant no. 1 while his first marriage with nonapplicant no. 2 was on, prima facie amounted to cruelty. {Para 5}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL APPLICATION (APL) NO. 1287/2022

 Atul S/o Raju Dongre Vs  SMGate

CORAM : SUNIL B. SHUKRE AND M. W. CHANDWANI, J.J.

ORAL JUDGMENT : (PER:- SUNIL B. SHUKRE, J.)

DATED : 30/11/2022

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Whether the court can grant injunction against muslim husband restraining him from performing second marriage?

 The Court have no role in restraining the

parties invoking their personal law remedies. The Court

should not forget the mandate of Article 25 of the

Constitution of India, which not only allows one profess

religion but also to practice. In essence, if any orders

are passed restraining one from acting in accordance with

the personal belief and practice, that would amount to

encroaching his constitutionally protected rights. No

doubt, aggrieved can challenge any action emanates out of

exercise of faith and practice; if it was not done in

accordance with the personal law, belief and practice but

that stage would arise only after the performance of the

act. The jurisdiction of the Court is limited in these

kinds of processes. The Family Court cannot restrain a

person performing his act in accordance with the personal

law. The act complained, invoking irrevocable invocation

of Talaq yet to come into existence. It is only after the

completion of the process and the procedure act qua the

Talaq, it can be said that whether it was in accordance

with the procedure as prescribed under the personal law or

not. It is unfortunate before that exercise is being done

he has been restrained from acting in accordance with the

personal belief and practice. The right to marry more

than one person at a time is prescribed under the personal

law. If the law ensures such protection, it is not for

the Court to decide that one person should not act in

accordance with the personal conscious and belief in

accordance with his religious practices. The Court has no

role to restrain or regulate one's behavior or decision in

accordance with the personal law guarantied. In the light

of exercise of the husband in accordance with the personal

law as above, we are of the view, the orders impugned are

without any justification and jurisdiction. We set aside

both the orders. We make it clear that at appropriate

time, if Talaq is not exercised in accordance with the

law, the respondent-wife can approach the competent Court

to redress her grievances.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) NO. 394 OF 2022

ANVARUDEEN  Vs SABINA, 

PRESENT

 MR. JUSTICE A.MUHAMED MUSTAQUE & MRS. JUSTICE SOPHY THOMAS

Author:A. Muhamed Mustaque, J

 Dated: 17TH DAY OF AUGUST 2022 

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Supreme Court: Family Court's Finding Regarding Previous Marriage Can Be Relied On To Quash Complaint About Bigamy U/S 494/495 IPC

 Evidence was adduced before the Family Court. The second respondent deposed before the Family Court. The Principal Judge of the Family Court at Guwahati, by a judgment dated 20 July 2017, issued a declaration that the divorce which was purportedly granted by the second respondent to her is null and void. The conclusion which has been arrived at by the Principal Judge is extracted below:
“In view of the above discussions it is clear that the talaq pronounced by the respondent No.1 is not as per due procedure, as no reconciliation took place between the parties and as such the talaq is not valid one. It is also found that the respondent has failed to prove that the petitioner was already married to Shoukat Ali, s/o Raja Ali @ Bhaiya Ali when getting married to the respondent.”{Para 12}

13. The above judgment clearly shows that whether (i) the appellant had a prior subsisting marriage with another person; and (ii) the second respondent had obtained a valid divorce was in issue before the Family Court. The finding of fact as between the appellant and the second respondent is that the appellant did not have a subsisting prior marriage when she married him. The judgment of the Family Court was questioned in MAT Appeal No 47 of 2017. A Division Bench of the High Court dismissed the appeal for non-prosecution on 20 June 2019, having noted that on the previous occasion on 27 May 2019, no one had appeared on behalf of the second respondent in those proceedings. The order of the High Court continues to hold the field. Yet, the impugned judgement has held that the factum of the subsisting marriage of the appellant is a contentious matter and has declined to quash the criminal complaint against the appellant.

15. The precedent of this Court clarifies that in certain circumstances, the High Court is entitled to consider other materials before exercising its powers of quashing under Section 482 of the CrPC. In the present case the appellant and the second respondent were parties to the decision of the Family Court. No contentious material or disputed issues of evidence arise. In the above backdrop, allowing the criminal proceeding to proceed for an offence under Sections 494 and 495 of IPC would constitute an abuse of the process. As between the appellant and the second respondent the issue as to whether she had a subsisting marriage on the date on which she entered into a marriage with the second respondent is the subject matter of a conclusive finding of the Principal Judge of the Family Court which has attained finality. Explanation (b) to Section 7(1) of the Family Courts Act 1984 expressly confers the Family Court with jurisdiction to determine the matrimonial status of a person. Section 7(1) of the Family Courts Act 1984 grants a Family Court with the status of a District Court and Section 7(2) confers it with jurisdiction exercisable by a Magistrate of the first class under Chapter IX of the CrPC, thus enabling to collect evidence to make such a determination. Thus, relying on the judgement of the Family Court which has jurisdiction to decide the gravamen of the offence alleged in the criminal complaint, would not be same as relying on evidentiary materials that are due for appreciation by the Trial Court, such as the investigation report before it is forwarded to the Magistrate, (Pratibha v. Rameshwari Devi, (2007) 12 SCC 369, paras 17-21; State of Madhya Pradesh v. Awadh Kishore Gupta, (2004) 1 SCC 691, para 13). 
Therefore, in this case, the Single Judge of the High Court was not justified in coming to the conclusion that the issue as to whether the appellant had a subsisting prior marriage was a ‘highly contentious matter’ which has to be tried on the basis of the evidence on the record.

16. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the Gauhati High Court dated 4 April 2018. Criminal Petition No 179 of 2016 instituted by the appellant for quashing the complaint is allowed. The complaint, CR Case No 2512 of 2015, pending in the Court of SDJM(S) II, Kamrup (M), Guwahati is quashed.

Supreme Court

JUSTICE Dr. Dhananjaya Y Chandrachud JUSTICE Bela M Trivedi

Musstt Rehana Begum Vs. State of Assam & Anr.

Criminal Appeal No 118 of 2022

21st January 2022

Citation: 2022 ALL SCR (ONLINE) 97

Author: Dr. Dhananjaya Y Chandrachud, J.

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Whether Muslim wife is entitled to get a divorce if her husband gives unequal treatment due to his second marriage?

 The next ground is under Section 2(viii) (f) of the Act.

Though in the petition, this provision has not been specifically

mentioned, we are of the view that mere omission to quote a

statutory provision will not disentitle the claim for divorce on that

ground if there are sufficient averments in the petition. There are

averments in the petition regarding contracting second marriage

by husband with Hajira. That fact has not been denied. If there

exists a marriage with another lady during the subsistence of the

previous marriage, the burden is on the husband to prove that he

had treated both wives equitably in accordance with the

injunctions of Quran. Staying away from the first wife for five

years itself would show that he had not treated them equally. The

respondent has no case that he lived with the appellant after 2014. The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the

husband contracts more than one marriage. In such circumstances,

we have no hesitation to hold that the appellant-wife is entitled to

get a decree of divorce on that ground also. We, therefore, allow

this appeal and set aside the impugned judgment. We grant

divorce under Sections 2(iv) and 2(viii) (f) of the Act. We,

accordingly, dissolve the marriage between the appellant and the

respondent solemnised on 04.08.1991. {Para 7}

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE A.MUHAMED MUSTAQUE

&

 MRS. JUSTICE SOPHY THOMAS

MAT.APPEAL NO.431 OF 2021

RAMLA  Vs ABDUL RAHUF 

Mat.Appeal No.431/2021 

Author: A.Muhamed Mustaque, J.

Dated: 1ST DAY OF DECEMBER 2021 

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Should the court discharge the accused in an offence U/S 498A of IPC if the wife has lodged FIR when the husband will perform a second marriage?

Considering the law as has been laid down by the High

Court in number of cases, relying upon the view taken by the

Supreme Court, I find substance in the submission made by

learned counsel for the applicants that in the present case also,

the FIR has been lodged by the non-applicant no.2/wife only to

harass the applicant no.1 and his family members. Her

statement filed along with the charge-sheet clearly reflects that

she approached the police only because applicant no.1 was

going to marry another lady. The allegations made against the

applicants in the report lodged to the police and the statement

given by her were relating to the incidents that occurred almost

two years prior to the date of FIR. She did not disclose as to

why at the relevant point of time, she did not make any

complaint. She has also not disclosed and not stated when she

started living separately from 2016, she did not lodge any

report to the police but only after coming to know about filing

of the suit and fact of marriage of the non-applicant no.2 with

another lady, the complaint/FIR was lodged to the police. It can

be easily presumed that it is nothing but an after-thought and

the allegations made in the FIR are improbable and do not

constitute the offence as alleged against the applicants.

HIGH COURT OF MADHYA PRADESH

PRINCIPAL SEAT AT JABALPUR

Criminal Revision No.521/2021

Abhishek Pandey @ Ramji Pandey and others Vs State of Madhya Pradesh and Others

Date of Order 18/08/2021

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Whether wife can initiate a domestic violence proceeding if the husband performs second marriage after divorce?

 (12) In the present case, the fact that the Family Court granted divorce on the ground of cruelty cannot be denied. Merely

because the applicant No.1 performing a second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act. Although, it may be said that the respondent could have claimed that there had been a domestic relationship between the parties, for the reason that the applicant No.1 and respondent were married at a point in time, but the said fact in itself would not be enough for the respondent to initiate the said proceedings under the provisions of the D.V. Act, much after the divorce proceedings had attained finality and findings had been rendered against her.

(13) Chronology of events of the present case does indicate that the respondent sought to invoke the provisions of the D.V. Act after the proceedings concerning the divorce decree had attained

finality upto the Supreme Court. It was not as if the respondent had initiated a proceeding under the D.V. Act during the course of the matrimonial discord between the parties. It is after the respondent suffered adverse orders in the proceedings concerning the divorce petition and the application for restitution of conjugal rights, which stood confirmed right upto the Hon’ble Supreme Court, that she turned around and sought to invoke the provisions of the D.V. Act. This demonstrates that the manner in which the proceedings were sought to be initiated under the provisions of the D.V. Act was nothing but an abuse of process of law. The respondent could not be permitted to keep the applicants engaged in litigation in this form, when the requirements of the D.V. Act, on the face of it, did not appear to be satisfied.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL APPLICATION (APL) NO. 164 OF 2017

 Applicants  Vs   Respondent

CORAM : MANISH PITALE, J.

DATED : 09/08/2021

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Did a second marriage performance during the pendency of an appeal against divorce decree would amount to civil contempt?

At this juncture, it is necessary to refer to Section 15 of the Act 1955, which reads thus:

Section 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.”

In the light of the above discussion, I am of the considered view that the expression ‘willful disobedience of process of a Court’ used under Section 2(b) of the Act, 1971, must also be related to disobedience of some command issued by the Court during the process of a Court which includes various stages between filing of any proceeding to final decision by the Court. During these stages various commands need to be issued by the Court, like issuance of summons, deposit of cost, compelling appearance of any expert or person as a witness, production of documents or record etc., disobedience of any such command may come within the ambit of ‘willful disobedience of other process of a Court’ as provided in Clause (b) of Section 2 of the Act, 1971. But at any stretch of imagination it cannot be said that contravention of provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

35. In the said backdrop, I am of the considered view that performance of a second marriage during the pendency of appeal would be a contravention or a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

 In the High Court of Bombay

(Before A.S. Kilor, J.)

Kanchan Vs Prashant Manikrao Bagade 

Contempt Petition No. 239 of 2017 and Second Appeal No. 11 of 2016

Citation: 2020 SCC OnLine Bom 911 : (2020) 5 AIR Bom R 606

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How to prove second marriage in departmental enquiry?

The allegations against the present petitioner are that when his first wife was alive, he performed second marriage with Ranjana and reason for that his first wife Sandhya was issueless for so many years. The learned AGP initially relied on two documents i.e. agreement dated 2-9-2002 in the nature of leave-in-relationship between the petitioner and his second wife Ranajana and the copy of the family arrangement deed dated 22-6-2002 between the petitioner and his first wife Sandhya. On perusal of the same, it appears that the petitioner made a contract with Ranjana as his first wife was issueless. On perusal of the contents of the leave-in-relationship contract, it appears that it was agreed between the petitioner and Ranjana to reside as a husband and wife. If these contents of the leave-in agreement are read coupled with the evidence of the priest namely Shri Dyneshwar Joshi and other relevant document, it appears that those documents are sufficient to prove that the petitioner has contracted the second marriage with Ranjana in spite of subsisting of his first marriage with Sandhya.

6. Standard of proof in the departmental enquiries are on the basis of the preponderance of probabilities and to prove such marriage, standard of proof is not required as high as required to prove the offence punishable under section 494 of Indian Penal Code, nor the marriage of the petitioner with Ranjana is independently in dispute, therefore, no high degree proof is required to prove such marriage in the departmental enquiry.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 313 of 2011

Decided On: 12.04.2018

 Ashok Ramakant Choudhari Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

T.V. Nalawade and K.L. Wadane, JJ.

Citation: 2018(5) MHLJ 725

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Whether second marriage performed during pendency of appeal against divorce is legal?

Section 15 of Hindu marriage Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.

19. Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 18312 of 2017

Decided On: 24.08.2018

 Anurag Mittal Vs.  Shaily Mishra Mittal

Hon'ble Judges/Coram:

S.A. Bobde and L. Nageswara Rao, JJ.

Citation: 2018(5) MHLJ 714

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Whether one spouse can perform second marriage even if his appeal against divorce is pending?

Section 15 of the Act provides that it shall be
lawful for either party to marry again after dissolution of
a marriage if there is no right of appeal against the
decree. A second marriage by either party shall be
lawful only after dismissal of an appeal against the
decree of divorce, if filed. If there is no right of appeal,
the decree of divorce remains final and that either party
to the marriage is free to marry again. In case an appeal
is presented, any marriage before dismissal of the appeal
shall not be lawful. The object of the provision is to
provide protection to the person who has filed an appeal
against the decree of dissolution of marriage and to
ensure that the said appeal is not frustrated. The
purpose of Section 15 of the Act is to avert complications
that would arise due to a second marriage during the
pendency of the appeal, in case the decree of dissolution
of marriage is reversed. The protection that is afforded
by Section 15 is primarily to a person who is contesting
the decree of divorce.

19. Aggrieved by the decree of divorce, the Appellant
filed an appeal and obtained a stay of the decree.
During the pendency of the appeal, there was a
settlement between him and his former spouse.
After entering into a settlement, he did not intend to
contest the decree of divorce. His intention was made
clear by filing of the application for withdrawal. It cannot
be said that he has to wait till a formal order is passed in
the appeal, or otherwise his marriage dated 06.12.2011
shall be unlawful. Following the principles of purposive
construction, we are of the opinion that the restriction
placed on a second marriage in Section 15 of the Act till
the dismissal of an appeal would not apply to a case
where parties have settled and decided not to pursue the
appeal.

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.18312 of 2017

 ANURAG Vs SHAILY 

Dated:AUGUST 24, 2018

L. NAGESWARA RAO, J.

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Whether muslim husband can be denied restitution of conjugal rights if he performs second marriage?

 On consideration of facts and circumstances revealed that the
Muslim husband has not treated his wife in accordance of Holy Queen which 
leads to conclusion that he has dis-entitled himself to a decree of
restitution of conjugal rights.
When the husband proceeds against for wife for restitution
conjugal rights and also contracted second marriage during the pendency of
the suit for restitution of conjugal rights and in the instant case, the wife
also complained of physical cruelty to extract money, after 18 years of
matrimonial life. Then the burden of proof is on the plaintiff-husband who takes
a second wife to explain his action to prove that, his taking of a second
wife involves no cruelty to the first wife, by adducing necessary evidence to
that
effect. For instance, he may rebut the presumption of cruelty by proving that
his second marriage took place on the suggestion of first wife otherwise the
Court will presume that  under modern social conditions that the action of
the husband in taking second wife, during pendency of the suit for
institution of conjugal rights involves cruelty to the first wife then it
could be inequitable for the Court to ask the wife to live with such a
husband. 
 In the circumstances, it could not be unreasonable to hold
that after the plaintiff-husband contracted second marriage, the appellant
wife is reasonable and justifiable in staying away from her husband. This
Court while bearing in mind, the right of the Muslim husband as to contract
of marriage more than once, however, it has to be borne in mind that the
decision in a suit for restitution of conjugal rights does not entirely
depend upon the right of the Muslim husband. The Court should also consider
whether it

make it in-equitable for it to compel the wife to  live with her husband. Our
notions of law in that regard have to be held in such a way so as to bring
them in confirmity with modern social condition. There is no law or a rule
which compel the Court always to pass a decree in a suit for restitution of
conjugal rights in favour of the husband. A duty is caused upon to the Court
to find out whether it could be just and reasonable for the Court to deny the
said relief to the plaintiff Muslim husband if the proved circumstances are
such that it could be inequitable to do so for a muslim woman.
                25. On consideration of the evidence and the pleadings thereon
coupled with the admission of the P.W.1 and the D.W.1, this Court finds that
the action of the plaintiff-husband is not bonafide and the fact that the
plaintiff-husband has taken the second wife during the pendency of the suit
also lead to the irresistible conclusion that he disqualified for a decree of
restitution of conjugal rights and reasoning given by the lower Appellate
Court is not sustainable in law.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.06.2017  

CORAM   
MR.JUSTICE RMT.TEEKAA RAMAN              

S.A.(MD) No.62 of 2006 


Kothar Beevi @ Badrunnisha  vs K.Aminudeen        

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Whether second marriage after divorce will be void?

 In the case at hand, the petitioner-husband

solemnized his second marriage only after obtaining a decree of

divorce. When he solemnized his second marriage after the

decree of divorce, the second marriage, notwithstanding the

fact that the ex parte decree of divorce has, now, been set

aside, cannot be treated as a nullity. In fact, even when a

person solemnizes his second marriage, before the expiry of

the statutory period of appeal, his second marriage is still not a

nullity inasmuch as Section 5 of the Hindu Marriage, Act, 1955,

permits solemnization of marriage between two Hindus if

neither party has „spouse’ living at the time of marriage. In

order to, therefore, treat the subsequent marriage a nullity, it

will have to be presumed that the parties to the divorce are still

spouses even when their marriage has been dissolved by a

decree of divorce. This is legally not permissible inasmuch as a

decree of divorce, unless stayed by an order of superior court,

snaps the relationship between the parties and, hence, they are

not treated as spouse or else, such second marriage, prior to

expiry of appeal period, would have rendered the subsequent

marriage void under Section 11 of the Hindu Marriage Act,

1955.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Review No.4 of 2016

IN

MA 513 of 2009

Sri Rajesh Kumar 

Versus

Smt. Pushpa Rani 

Citation: 2016 SCC OnLine Pat 4639

CORAM: HONOURABLE THE CHIEF JUSTICE

and

HONOURABLE JUSTICE SMT. NILU AGRAWAL

ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date: 16-09-2016

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Whether second wife can be treated as legally wedded wife if second marriage was performed with consent of first wife?

In so far as submission of the learned counsel appearing for the petitioners that petitioner no.1 solemnized marriage with the said deceased after such writing was received from the first wife giving her no objection in favour of the said deceased in getting married again and petitioner no.1 would be one of the legal heirs of the said deceased is concerned, in my view, this issue is concluded by the judgment of the Supreme Court delivered on 15th March, 2013 in case ofNagendrappaNatikar (supra) when Supreme Court considered similar consent letter addressed by the first wife of the deceased. After considering such writing, Supreme Court held that under section 25 of the Contract Act, any agreement which is opposed to public policy is not enforceable in a court of law and such an agreement is void, since the object is unlawful. In my view, only a competent court can grant decree of divorce and no divorce can be granted to a party governed by Hindu Marriage Act or Special Marriage Act, based on such consent letter. In my view divorce can not be granted by parties by such writing unless decree is passed by competent court annulling such marriage. In my view, marriage of the first petitioner with the said deceased is thus void and petitioner no.1 therefore cannot be considered as a legal heir of the said deceased. Petitioner nos.2 and 3 being daughters born out of such wedlock would be entitled to share in the property of the said deceased. Mother of the said deceased is also one of the legal heir of the said deceased and would be one of the legal heir and would be entitled to share in the property of the said deceased.

BOMBAY HIGH COURT

Vandana Bhimrao Jadhav and Others Vs. Sagar Bhimrao Jadhav

Citation;2014(2) MHLJ 274 Bom

Court : Mumbai

Judge : R.D. DHANUKA

Decided On : Oct-22-2013

Case Number : Misc. Petition No. 110 of 2011 In Misc. Petition No. 91 of 2009

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Whether performing second marriage without permission of govt will amount to misconduct?

Having held so, we are clearly of the view that the

punishment imposed upon the petitioner is grossly disproportionate

to the misconduct committed by him. We must keep in mind the

fact that the petitioner had already rendered 18 years of service

before he contracted into the second marriage. He was terminated

after he had completed almost 20 years of service. In the reply,

there is no allegation that there was any other complaint against

the petitioner. No doubt, his act of marrying a second time without

seeking permission of the Government is misconduct but can it be

said that this misconduct is so severe that he should be dismissed 

from service which would mean that he would virtually be entitled

to no pensionary or other benefits.

8. The petitioner has pleaded that he was not aware of

the provisions of Rule 21 of the CCS (Conduct) Rules. Ignorance of

law is no excuse but at the same time, we cannot ourselves ignore

the hard truth that a large number of employees are not aware of

the details of the rules. Whatever be the case, the petitioner is a

person who served the BSF for about 20 years and the allegation

against him is that he misconducted himself by contracting a

second marriage while his first spouse was living. This is not a

criminal offence of bigamy because the personal law permits such

conduct. Misconduct is the technical misconduct in not seeking

permission of the authorities concerned. We are, therefore, of the

opinion that though the misconduct of the petitioner is serious

enough to warrant his non-continuation in service but it is not so

serious as to warrant forfeiture of all his service benefits.

THE HIGH COURT OF TRIPURA

A G A R T A L A

WP(C) 588 OF 2015

Ghulam Nabi Shergujri V The United of India,

BEFORE

HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA

HON’BLE MR. JUSTICE S. TALAPATRA

Dated: 04.4.2016.

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Whether second marriage becomes valid if husband has condoned second marriage of wife?

 Even assuming for the sake of arguments that Avtar
Singh was very much aware of the fact that Balbir Singh who married
Sawaranjit Kaur was alive and he preferred to condone the act of
Sawaranjit Kaur, the marriage of Sawaranjit Kaur with Avtar Singh
cannot be held valid as there can be no condonation of an act which

is prohibited under law.

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No. 309-M of 2003
DATE OF DECISION :- August 03,2015
Smt. Sawaranjit Kaur V Lt. Col. Avtar Singh and others 
FAO No. M-256 of 2009
Balbir Singh V Swaranjit Kaur .
CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL
HON'BLE MRS. JUSTICE RAJ RAHUL GARG
Citation;AIR 2016(NOC)176 P&H

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Whether second marriage performed by wife when husband is missing for seven years is valid?

 On facts, it is found that Balbir Singh himself came alive

and deposed in favour of Avtar Singh that he never absconded. Avtar

Singh has established that Balbir Singh was very much alive when

Sawaranjit Kaur contracted second marriage with Avtar Singh.

Therefore, such a marriage solemnized by Sawaranjit Kaur with

Avtar Singh is patently illegal and is null and void.

Counsel appearing for Sawaranjit Kaur would further

contend that Sawaranjit Kaur was an illiterate woman. As her

husband had absconded for more than seven years she had

contracted second marriage.

Ignorance of law is no excuse. When the law lays down

that a marriage with another person during the subsistence of

marriage is null and void, Sawaranjit Kaur cannot hide herself behind the plea of illiteracy and seek for validity of the marriage.

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

FAO No. 309-M of 2003

DATED :- August 03,2015

Smt. Sawaranjit Kaur Vs Lt. Col. Avtar Singh and others

CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL

HON'BLE MRS. JUSTICE RAJ RAHUL GARG

Citation: AIR 2016(NOC)176 P&H

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Whether performing second marriage during existence of first marriage without permission of govt amounts to misconduct by public servant?

 Rule 21 of the Central Civil Services (Conduct)
Rules, 1964 restrains any government servant
having a living spouse from entering into or
contracting a marriage with any person. A similar
provision is to be found in several service rules
framed by the States governing the conduct of
their civil servants. No decided case of this Court

has been brought to our notice wherein the
constitutional validity of such provisions may have
been put in issue on the ground of violating the
freedom of religion under Article 25 or the freedom
of personal life and liberty under Article 21. Such a
challenge was never laid before this Court
apparently because of its futility.

60.. ……….It may be permissible for Muslims to
enter into four marriages with four women and for
anyone whether a Muslim or belonging to any other
community or religion to procreate as many
children as he likes but no religion in India dictates
or mandates as an obligation to enter into bigamy
or polygamy or to have children more than one.
What is permitted or not prohibited by a religion
does not become a religious practice or a positive
tenet of a religion. A practice does not acquire the
sanction of religion simply because it is permitted.
Assuming the practice of having more wives than
one or procreating more children than one is a
practice followed by any community or group of
people, the same can be regulated or prohibited by
legislation in the interest of public order, morality
and health or by any law providing for social
welfare and reform which the impugned legislation
clearly does.”
In view of the above, we are unable to hold that the Conduct

Rule in any manner violates Article 25 of the Constitution.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1662 OF 2015
(ARISING OUT OF SLP (C) NO.5097 OF 2012)
KHURSHEED AHMAD KHAN 
V
STATE OF U.P. & ORS. 
Citation;(2015) 8 SCC439

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Family court Bombay stops Muslim man from marrying second time till he settles the dues of his first wife

MUMBAI: The family court, in an unprecedented order, has restrained a Muslim US-returned paediatrician from marrying for the second time till he settles the rights and dues of his wife. 

"The law and the religion both do not permit a Muslim man to perform another marriage as of a right by defeating and delaying the rights of his first wife," said Judge Swati Chauhan in her May 13 order. Worli resident Dr Akbar Khan (name changed) is directed "not to perform another marriage" till the January 30, 2015 order to grant his estranged wife Sakina (name changed) alternate accommodation is complied with. And, until her prayer for maintenance is not "heard, decided and fully complied with". 

Sakina (34) had moved the court after finding that Akbar (45) had posted an ad on an online matrimonial website that he is "desirous of marrying an unmarried young girl in the age group of 18-25 years". She apprehended that Akbar's remarriage would "frustrate and defeat her lawful rights". 

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When Husband has failed to prove that wife was previously married to some other person?

On being summoned, the petitioner filed his written statement before the learned Magistrate in the proceeding No. 63/1993. The Written statement is at Exh.30 on the record. What is important to note from the written statement is that, the petitioner has not admitted his marriage with respondent No. 1 on 17.6.1991 at Mauje Sonosi as per Hindu rites and custom. He made a claim in the written statement that, prior to his marriage the respondent No. 1 was having illicit relations with Ankush Avhad. If the written statement is minutely scanned and scrutinized some what contradictory stand is taken in the said written statement. At one place, it is the claim of the petitioner that prior to his marriage with respondent No. 1 on 17.6.1991 there was a love marriage between the respondent No. 1 and Ankush Avhad and at the next breath, he submitted in his written statement that prior to his marriage with respondent No. 1, respondent No. 1 was having illicit relations with Ankush Avhad.

Since the petitioner not only admitted in his pleading about the factum of his marriage with respondent No. 1 at Mauje Sonosi on 17.6.1991, but also he has admitted said fact when he entered into the witness box in order to substantiate his claim in the written statement. Thus, both in the pleadings and in the evidence the petitioner has admitted the fact that he married with respondent No. 1 on 17.6.1991. In that view of the matter, initial burden which was on the shoulder of the respondent No. 1 to prove that she is legally wedded wife of the petitioner stands discharged. Now, once that initial burden was discharged by the respondent No. 1, onus was shifted on the shoulder of the petitioner since he claimed that prior to his marriage with respondent No. 1, there was a marriage of respondent No. 1 with Ankush Avhad. If the entire evidence is properly scrutinized in the light of his pleading in the written statement Exh.30, then there is no iota of proof adduced before the Court to show that the petitioner has discharged the burden which was shifted on his shoulder to prove that prior to 17.6.1991 there was a marriage between respondent No. 1 and Ankush Avhad. Since the petitioner has failed to discharge said burden in order to prove his case, the claim of the petitioner that the respondent No. 1 is not his legally wedded wife has to be necessarily rejected and which is rightly rejected by both the Courts below.

5. In so far as criminal proceeding filed by Ankush is concerned, in the said proceeding, present respondent No. 1 was brought before the Court in the said criminal proceeding. Now there is no evidence adduced by present petitioner that from which place the respondent No. 1 was produced before the Court in the said Criminal Proceeding initiated by Ankush. Obviously, when those proceedings were initiated by Ankush, the police must have produced the respondent No. 1 from the house of the present petitioner. Leave apart said aspect, in the said proceeding, it was specifically stated by respondent No. 1 that she is wife of present petitioner and she is having no concern with said Ankush Avhad.

If any statement recorded in the said proceeding of the said person Ankush, those statements are surely not binding on the respondent No. 1. Any unilateral claim made by Ankush about his relationship with Respondent No. 1 can not be binding on respondent No. 1 to dis-entitle her to claim the right of maintenance from the present petitioner especially when there is nothing on record to show that any marriage was performed between Ankush Avhad and Respondent No. 1.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.592 OF 2000

Bhalsing Sahebrao Jagdale,

Vs

 Latabai w/o Bhalsing Jagdale,

CORAM : V.M. DESHPANDE, J.
      Dated   : July 24, 2014
Citation;2015ALLMR(Cri)1067

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