1. Application for maintenance under Section 125 CrPC — Challenge to dismissal based on purported nullity of marriage due to pendency of appeal against prior divorce decree. (Para 2 , 3 , 4 , 5 , 6 , 7 , 10 , 11 , 17 , 19 , 23 , 24 )
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2020 Supreme(SC) 439
SUPREME COURT OF INDIA
INDIRA BANERJEE, M.R. SHAH, JJ.
Krishnaveni Rai – Appellant
Versus
Pankaj Rai & Anr - Respondent
Crl.A. No. 321 of 2020
Decided on 19-02-2020
A marriage contracted during the pendency of an appeal from a decree of divorce is not ab initio void, especially when the appeal is filed after the expiry of the period of limitation. The legislative intent was not to render a valid marriage void on the filing of a belated appeal.
Headnote:
Maintenance - Hindu Marriage Act - Sections 5, 11, 15 - The court discussed the validity of a marriage contracted during the pendency of an appeal from a decree of divorce and its impact on the right to maintenance under Section 125 of the Cr.P.C. The court held that such a marriage is not ab initio void, especially when the appeal is filed after the expiry of the period of limitation. The court emphasized that the legislative intent was not to render a valid marriage void on the filing of a belated appeal. The judgment set aside the order dismissing the application for maintenance and remitted the case for determination of the Appellant's claim to maintenance.
Fact of the Case:
The Appellant filed for maintenance under Section 125 of the Cr.P.C. after her second marriage was declared null and void by the Respondent No.1. The court was tasked with determining whether the Appellant could be denied maintenance on the ground of nullity of her second marriage.
Finding of the Court:
The court found that a marriage contracted during the pendency of an appeal from a decree of divorce is not ab initio void, especially when the appeal is filed after the expiry of the period of limitation. The court emphasized that the legislative intent was not to render a valid marriage void on the filing of a belated appeal.
Issues: The key issue was whether the Appellant could be denied maintenance under Section 125 of the Cr.P.C. on the ground that her second marriage was a nullity due to being contracted during the pendency of an appeal from a decree of divorce.
Ratio Decidendi: The court held that a marriage contracted during the pendency of an appeal from a decree of divorce is not ab initio void, especially when the appeal is filed after the expiry of the period of limitation. The court emphasized that the legislative intent was not to render a valid marriage void on the filing of a belated appeal.
Final Decision: The appeal was allowed, and the order dismissing the application for maintenance was set aside. The case was remitted for determination of the Appellant's claim to maintenance.
Legal Category Hierarchy
- family law
- crime and sentencing
- practice and procedure
Table of Contents
2. Whether a second marriage solemnized during the pendency of an appeal against a divorce decree is void, thereby disentitling the spouse to maintenance under Section 125 CrPC. (Para 11 , 24 , 38 )
3. Analysis of Sections 5, 11, and 15 of the Hindu Marriage Act — Distinction between conditions for validity and statutory incapacity to remarry. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 )
4. Marriage contracted during the pendency of an appeal from a divorce decree is not void ab initio, particularly when the appeal is filed after the limitation period. (Para 31 , 32 , 33 , 34 , 35 , 37 )
5. Appeal allowed — Order dismissing maintenance application set aside — Matter remitted for determination of maintenance with directions for interim payments. (Para 39 , 40 )
6. Does a marriage solemnized during the pendency of an appeal against a divorce decree automatically become void?
No. An incapacity to marry imposed by statute does not lead to an inference of nullity unless there is an express provision declaring the marriage void. Section 11 of the Hindu Marriage Act does not declare marriages in contravention of Section 15 to be void. (Para 31 , 32 , 33 )
7. How does the limitation period for filing an appeal affect the validity of a second marriage under Section 15 of the Hindu Marriage Act?
The bar under Section 15 applies only if an appeal is filed within the limitation period. If the limitation period expires without an appeal, the party may lawfully remarry; a subsequent belated appeal does not render the second marriage void. (Para 34 , 35 , 37 )
8. Can maintenance under Section 125 CrPC be denied solely on the ground that a marriage is a nullity?
Generally, if a marriage is a nullity, an application for maintenance is liable to be set aside. However, the court held that a marriage contracted during the pendency of an appeal from a decree is not ab initio void. (Para 26 , 38 )
JUDGMENT :
Indira Banerjee, J.
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. Th
