READ ORDER | Husband Cannot Be Charged With Bigamy If He Remarried While Divorce Decree Was Stayed, Appeal Dismissed Later

The Kerala High Court has held that if a party enters into a second marriage when the appeal of the decree of divorce of the first marriage is still pending, he/she will not be guilty of the offence of bigamy under Section 494 of the Indian Penal Code if the appeal is subsequently dismissed.

The court was hearing a petition filed under Section 482 of the Code of Criminal Procedure to quash the complaint alleging bigamy. The Kerala High Court ruled that Section 15 of the Hindu Marriage Act does not override Section 28 of the Hindu Marriage Act, which confers a right of appeal.

Justice P. Somarajan while allowing the Criminal Miscellaneous Petition, observed:

Once the appeal ends in dismissal confirming the decree of divorce of the Family Court, it would come under the third limb of Section 15 of the Act irrespective of the fact that the marriage was solemnised either before the presentation of appeal or before the culmination of appeal.

Case:

The petitioner’s second marriage was solemnised after the decree of divorce by the Family Court but during the pendency of an appeal and a stay order. His wife had alleged that her husband entered into a second marriage during the pendency of the appeal against the decree of divorce. The man was accordingly booked for offences under:

• Section 494
• Section 114 r/w Section 34

…of the IPC

The man subsequently approached the Court for relief.

Kerala High Court

The question before the Court was whether the offence under Sections 494 and 114 IPC would stand attracted when a second marriage was solemnised after the decree of divorce of the first marriage but before the culmination of its appeal.

Upon exploring the offence of bigamy, the Court laid down the statutory pre-requisites essential to constitute the offence:

(i) the accused must have contracted first marriage

(ii) he must have married again

(iii) the first marriage must be subsisting

(iv) the spouse must be living

Additionally, as per the dictum laid down in Gopal Lal v. State of Rajasthan [AIR 1979 (SC)713], the second marriage should be void by reason of its taking place during the lifetime of the first husband or wife.

Stage at which Divorced Person can enter Second Marriage

The Court also noted that amended Section 15 of the Hindu Marriage Act deals with the stage in which a divorced person can validly enter into a second marriage.

The act says.

After the decree of dissolving the marriage, either there is no right of appeal or if there is such a right, 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 either of the party to the marriage to marry again.

In the instant case, although the husband had entered into a second marriage during the stay order, the appeal ended in dismissal subsequently confirming the decree of divorce.

The Court ruled that under such circumstances, the doctrine of merger would come into play and the decree of the Family Court will stand merged in the appellate decree. Therefore, the decree would operate not from the date of the first appellate decree, but from the date of the decree of divorce granted by the Family Court. The court said,

The decree of divorce confirmed in appeal would stand effective from the date of the original decree of divorce of the Family Court and the appellate decree will revert back to the date of the decree of divorce of the Family Court.

The Court referred to the decision of the Apex Court in Lila Gupta v. Laxmi Narain and Others (AIR 1978 SC 1351) to substantiate its position.

No Bigamy If Appeal Ends In Dismissal

The Kerala High Court also noted that once the appeal ends in dismissal confirming the decree of divorce of the Family Court, it would come under the third limb of Section 15 of the Act irrespective of the fact that the marriage was solemnized either before the presentation of appeal or before the culmination of appeal.

Hence, in such matters, the offence under Section 494 IPC will not stand attracted. The court remarked,

On account of the confirmation of decree of divorce in appeal, the first marriage will stand dissolved from the date of decree of Family Court and thereafter it cannot be said that there exists a subsisting marriage relationship or a living spouse for the purpose of Section 494 IPC.

Allowing the petition, the Court held that the perfunctory offence alleged under Section 114 IPC will not stand attracted when the main substratum under Section 494 IPC becomes inoperative and non-est.

Hence, the cognizance taken for the offence under Section 494, 114 r/w Section 34 IPC will not stand in the eye of law and the same was quashed.

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