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2020 Supreme(Telangana) 172
IN THE HIGH COURT FOR THE STATE OF TELANGANA
RAGHVENDRA SINGH CHAUHAN, A. ABHISHEK REDDY, JJ.
Maj Pankaj Rai – Appellant
Versus
Krishna Veni Rai, Nee Krishnaveni Challa – Respondent
Family Court Appeal No. 193 of 2019
Decided On : 08-01-2020
Advocate Appeared:
For the Respondent: Mr. C. Srinivas.
Point of Law :
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.
Headnote:
Constitution of India,1950 - Article 227 - Hindu Marriage Act, 1955 - Section 15, 11 and 12 - Seeking annulment of marriage - Divorce decree - Case are that the appellant herein had filed O.P. No seeking annulment of marriage under Section 12 of the Hindu Marriage Act, 1955 against respondent herein - It is case of appellant that though marriage between parties was solemnized in accordance with the Hindu Temple rites, same could not be registered with Registrar of Marriages as respondent, who was a divorcee, could not produce divorce decree, which she has stated to have obtained from a competent Court appellant discovered that in fact respondent had not filed for the divorce - Instead, it was her first husband who had filed for divorce before Family Court O.P. filed by first husband was numbered -
Finding of the Court:
Provision of law prescribes an incapacity to marry and yet person marries while under that incapacity - Marriage would not be void in the absence of an express provision that declares nullity - Quae incapacity imposed by statute, there is no difference between an incapacity imposed by negative language such as it shall not be lawful or an incapacity imposed by positive language like it shall be lawful - It would thus appear that the law is already settled by this Court that a marriage contracted during a prescribed period will not be void because it was contracted under an incapacity - Marriage between the parties is null and void - In present case also appellant herein is seeking to avoid payment of maintenance on the ground that the marriage between parties is null and void, as the marriage was performed in contravention of Section 15 of the Act, and also on the ground in Criminal Revision Case - Court has held that the marriage between the parties is null and void -
Result: Appeal is dismissed
JUDGMENT :
A. ABHISHEK REDDY, J.
1. Aggrieved by the Order, dated 21.09.2019, passed in O.P. No. 475/2015 by the Judge, Additional Family Court, Hyderabad, whereby the learned Family Court had dismissed the petition filed under Section 151 of the Code of Civil Procedure by the appellant herein seeking extension of time for paying the maintenance amount, allowed I.A. No. 300 of 2019 filed by the respondent herein, and dismissed the main O.P. on the ground that the appellant herein has not complied with the order passed in I.A. No. 1192 of 2017, dated 19.12.2018 and which was confirmed by the High Court in C.R.P. No. 242 of 2019, the present Appeal is filed.
2. The brief facts of the case are that the appellant herein had filed O.P. No. 475 of 2015 seeking annulment of marriage under Section 12 of the Hindu Marriage Act, 1955 (for short “the Act”) against the respondent herein. It is the case of the appellant that though the marriage between the parties was solemnized on 13.12.2014, in accordance with the Hindu Temple rites, the same could not be registered with the Registrar of Marriages, Hyderabad, as the respondent, who was a divorcee, could not produce the divorce decree, which she has stated to have obtained from a competent Court. Subsequently, the appellant discovered that in fact the respondent had not filed for the divorce. Instead, it was her first husband who had filed for divorce before the Family Court, Hyderabad. The O.P. filed by the first husband was numbered as O.P. No. 847 of 2000, and decree of divorce was granted on 28.06.2005. Aggrieved by the said order, the respondent had filed a Family Court Appeal before the High Court and the same was pending. It is the further case of the appellant that during the pendency of O.P. No. 475 of 2015 filed by the appellant herein for divorce, the respondent herein had filed I.A. No. 1192 of 2017 seeking an interim maintenance under Section 24 of the Act; the Family Court has awarded an interim maintenance of Rs. 20,000/- per month from the date of petition, besides awarding Rs. 20,000/- towards legal expenses, and also directed the appellant herein to pay the arrears in three equal monthly installments commencing from January, 2019, and also to pay the monthly interim maintenance on or before 10th of every succeeding calendar month. Aggrieved by the orders of the Family Court in granting interim maintenance, the appellant had preferred a Civil Revision before this Court and the same was numbered as C.R.P. No. 242 of 2019. Vide order, dated 19.03.2019, this Court had dismissed the said C.R.P. holding that the interim maintenance granted by the lower Court was not exorbitant in view of the status of the parties. Thereafter, the respondent herein had filed I.A. No. 300 of 2019 seeking dismissal of the main O.P. No. 475 of 2015 on the ground that the appellant herein has not paid the interim maintenance and legal expenses contrary to the orders of the Family Court and High Court. The Judge, I Additional Family Court, Hyderabad, vide order, dated 14.09.2019, granted time to the appellant herein till 21.09.2019, to comply with the order passed in I.A. No. 1192 of 2017, dated 19.12.2018, granting interim maintenance. Subsequently, the appellant had filed an Interlocutory Application seeking extension of time by four weeks for complying with the order passed in I.A. No. 300 of 2019, dated 14.09.2019, ostensibly on the ground that he wanted to prefer a Civil Revision Petition against the order, dated 14.09.2019. Vide order, dated 21.09.2019, the Family Court has dismissed the application filed by the appellant herein seeking extension of time for payment of the interim maintenance and legal expenses; the learned Family Court allowed I.A. No. 300 of 2019 filed by the respondent herein, and dismissed the main O.P. on the ground that the appellant herein has not complied with the order passed in I.A. No. 1192 of 2017, dated 19.12.2018, and which was confirmed by the High Court in C.R.P.
