A marriage contracted during the pendency of an appeal from a decree is not ab initio void, especially when the appeal is filed after the expiry of the period of limitation.

JUDGMENT :

INDIRA BANERJEE, J.

1. 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 The appeal was, however, formally dismissed as withdrawn on 02.09.2016.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.