Customary divorce must be substantiated with evidence; a marriage conducted during the existence of a prior marriage is void. Alimony is available despite the marriage being void.

JUDGMENT:

Moushumi Bhattacharya, J.

1. The instant Family Court Appeal arises out of an order passed by the learned I Additional Family Court-cum-XIV Additional Metropolitan Sessions Court, Hyderabad, on 19.11.2024.

2. The impugned order was passed on an Original Petition (O.P.No.539 of 2021) filed by the appellant under sections 11, 5 and 25 of The Hindu Marriage Act, 1955 read with section 7 of The Family Courts Act, 1984 for a decree of nullity of marriage solemnized between the appellant and the respondent on the ground that the respondent was not divorced from his first wife on the date of his marriage to the appellant. The Appellant also prayed for a direction on the respondent to pay Rs.1 Crore as alimony under section 25 of the 1955 Act.

3. The Trial Court dismissed the appellant’s petition for a decree of nullity of the marriage solemnized between the appellant and the respondent on the ground that the appellant was aware of the respondent’s first marriage and that the appellant failed to file any document proving the financial net worth of the respondent in support of her claim for permanent alimony.

4. We propose to deal with the impugned order in greater detail in the later part of this judgment.

Pleadings filed by the Parties:

5. The basis for filing the petition for a decree of nullity of marriage was by reason of the respondent suppressing the fact of his surviving spouse as on the date of the respondent’s marriage with the appellant. The appellant and the respondent were married on 08.03.2018 at Lakshmi Narasimha Swamy Temple, Yadagirigutta, as per Hindu Rites and Customs and in the presence of elders and relatives. The appellant also complained that the respondent was controlling by nature and checked the appellant/petitioner’s personal e-mails, messages and Whatsapp chats and misappropriated funds from the appellant’s salary account.

6. However, the primary ground urged by the appellant for nullity of marriage was that the respondent committed fraud on the appellant by lying about the dissolution of his first marriage. The appellant also complained that the respondent filed a petition for restitution of conjugal rights in 2019 before the Family Court at Visakhapatnam while the parties were in the process of finalizing the terms of their divorce by mutual consent. The appellant came to know that the respondent had filed a petition for anticipatory bail (Crl.M.P.No.2863 of 2020 in Crime No.978 of 2019) before the Metropolitan Sessions Judge, Hyderabad, wherein the respondent stated that his first marriage was dissolved in 2008 according to customary practices prevalent in his family.

7. The appellant accordingly prayed for a decree of nullity of her marriage with the respondent on the ground of the respondent not being divorced from his first wife and for the respondent to pay alimony of Rs.1 Crore.

8. The respondent filed a Counter to the petition denying and disputing the contentions raised by the appellant. The respondent stated that his first wife suffered from acute ill- health and that the respondent and his wife were divorced in accordance with customs and traditions with the consent of the parents of the first wife. The respondent stated that the appellant was aware of the respondent’s first marriage and that the appellant was also introduced to the respondent’s daughter from his first marriage. The respondent did not deny the fact of his marriage with the appellant not being registered despite being performed on 08.03.2018 at Yadagirigutta, Telangana.

Submissions made on behalf of the appellant/petitioner:

9. Learned counsel appearing for the appellant/petitioner seeks to address the Court on several points including on the point of limitation since the impugned order was passed on 19.11.2024 and the present Appeal was filed on 28.01.20