IMPORTANT POINT
A marriage conducted during the operation of an ex parte divorce decree is not considered bigamy if the decree is subsequently set aside, provided the marrying party was unaware of the petition to set aside the decree.

ORDER :

(A. Badharudeen, J.)

Crl.M.C.No.8110/2022 is one filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’ hereinafter), by accused Nos.2 and 3 in C.C.No.263/2020 on the files of the Judicial First Class Magistrate Court, Taliparamba, to quash the said proceedings.

2. Crl.M.C.No.6166/2023 also is a petition filed under Section 482 of the Cr.P.C., by the 1st accused in the above case, to quash the proceedings thereto.

3. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor, in detail. Though the 2nd respondent/de facto complainant was served with notice and filed vakalath, there is no appearance.

4. Coming to the prosecution allegation, precisely the same is that, on 30.12.2017, the 1st accused married under the Special Marriage Act, as per Annexure A2 Certificate of Marriage, issued by the Marriage Officer, Maradu Municipality. The case advanced by the complainant before the Magistrate Court was that, at the time when the marriage was solemnized as on 30.12.2017, the marriage between the 1st accused and the de facto complainant was subsisting and therefore, offence under Section 494 of the Indian Penal Code (for short, 'the IPC' hereinafter) was committed by the 1st accused and accused Nos.2 and 3, who are the parents of the 1st accused also abetted commission of the above crime. Accordingly, cognizance taken for the offences punishable under Sections 494 and 109 of the IPC.

5. While seeking quashment of the case, the learned counsel for the petitioners pointed out that, earlier, as on 10.1.2013, the 1st accused married the 2nd respondent. While subsisting the marriage, the 1st accused filed divorce petition on 18.8.2014 before the Family Court, Ernakulam. After 3 years, i.e. on 12.5.2017, ex parte decree of divorce was granted. Although petition to set aside the ex parte order was expired on 11.6.2017 and the period for filing appeal against the ex parte order also expired on 10.8.2017, the 2nd respondent did not file either petition to set aside the ex parte decree or appeal. Since the marriage was legally divorced as per ex parte decree, dated 12.5.2017, the 1st accused decided to marry another lady and accordingly, he solemnized marriage on 30.12.2017.

6. It is true that, as on 27.12.2017, i.e. 3 days before the second marriage of the 1st accused, a petition was filed by the 2nd respondent herein, before the Family Court, Ernakulam, seeking to set aside the ex parte decree, as rightly pointed out by the learned counsel for the petitioners. On perusal of the certified copy of the petition so filed as I.A.No.4325/2017 in O.P.No.1582/2014, no notice served to the learned counsel appearing for the 1st accused. Similarly, no endorsement also could be noticed to see that any attempt was made to serve copy of the said petition to the 1st accused. However, the ex parte decree of divorce was set aside on 5.3.2018.

7. Now, the question arises for consideration is, whether a marriage solemnized during operation of an ex parte decree of divorce of the earlier marriage, would amount to the offence of bigamy, when the ex parte decree of divorce is subsequently set aside? In this connection, the relevant aspect is, as on the date of the second marriage, as per Annexure A2, there was no legal marriage subsisting in between the 1st accused and the 2nd respondent, in view of operation of the ex parte decree of divorce. To put it more legibly, there was no legal barrier to solemnize a second marriage on the date of the second marriage. In this particular case, the 1st accused did not know about filing of a petition to set aside the ex parte decree of divorce, on the date of his second marriage. Thus, it is to be held that, when there is decree of divorce and one among the parties to the decree marries during the subsistence of the ex parte decree, even though the ex parte decree happened to be set aside on a subsequent date, no offence of bigamy would attract. Holding so