The Kerala High Court recently comprising of a bench of Justice P. Somarajan held that if a party enters into a second marriage when the appeal of the decree of divorce of the first marriage is still pending, he/she will not be guilty of the offence of bigamy under Section 494 of the Indian Penal Code if the appeal is subsequently dismissed. (Manoj v. State of Kerala & Ors.)
The court while allowing a petition to quash the complaint alleging bigamy, observed that Section 15 of the Hindu Marriage Act does not override Section 28 of the Hindu Marriage Act, which confers a right of appeal.
The bench while allowing the Petition, observed, "Once the appeal ends in dismissal confirming the decree of divorce of the Family Court, it would come under the third limb of Section 15 of the Act irrespective of the fact that the marriage was solemnized either before the presentation of appeal or before the culmination of appeal."
Facts of the Case
In this case, the woman had alleged that her husband entered into a second marriage during the pendency of the appeal against the decree of divorce.
The man was accordingly booked for offences under Sections 494, 114 r/w Section 34 IPC. Aggrieved by this, the man approached the Court.
The petitioner's second marriage was solemnized after the decree of divorce by the Family Court but during the pendency of an appeal and a stay order.
The present criminal miscellaneous petition was filed under Section 482 of the Code of Criminal Procedure.
Issue before the court
Whether the offence under Sections 494 and 114 IPC would stand attracted when a second marriage was solemnized after the decree of divorce of the first marriage but before the culmination of its appeal.
Courts Observation & Judgment
The court at the very outset exploring the offence of bigamy laid down the statutory pre-requisites essential to constitute the offence:
(i) the accused must have contracted first marriage
(ii) he must have married again
(iii) the first marriage must be subsisting
(iv) the spouse must be living
The bench taking note of the dictum laid down in Gopal Lal v. State of Rajasthan [AIR 1979 (SC)713], wherein it was laid down that the second marriage should be void by reason of its taking place during the lifetime of the first husband or wife.
The Court also noted that amended Section 15 of the Hindu Marriage Act deals with the stage in which a divorced person can validly enter into a second marriage.
It says that after the decree of dissolving the marriage, either there is no right of appeal or if there is such a right, the time for appealing has expired without an appeal having been presented or an appeal has been presented, but has been dismissed, it shall be lawful either of the party to the marriage to marry again.
The bench taking note of the facts of the instant case noted, “In the instant case, the second marriage was solemnized after the decree of divorce by the Family Court, but during the pendency of an appeal and a stay order. But it is an admitted fact that the appeal ended in dismissal subsequently confirming the decree of divorce. Then the Doctrine of Merger would come into play and the decree of the Family Court will stand merged in the appellate decree. The decree would operate not from the date of first appellate decree, but from the date of decree of divorce granted by the Family Court. In other words, the decree of divorce confirmed in appeal would stand effective from the date of original decree of divorce of the Family Court and the appellate decree will revert back to the date of decree of divorce of the Family Court. If that be so, on account of the confirmation of decree of divorce in appeal, the first marriage will stand dissolved from the date of decree of Family Court and thereafter it cannot be said that there exists a subsisting marriage relationship or a living spouse for the purpose of Section 494 IPC.”
The Court taking note of the above referred to the decision of the Apex Court in the case titled Lila Gupta v. Laxmi Narain and Others (AIR 1978 SC 1351) to substantiate its position.
It was also noted that once the appeal ends in dismissal confirming the decree of divorce of the Family Court, it would come under the third limb of Section 15 of the Act irrespective of the fact that the marriage was solemnized either before the presentation of appeal or before the culmination of appeal.
The bench taking note of the facts and circumstances and the cases referred above noted that Hence, in such matters, the offence under Section 494 IPC will not stand attracted. The bench noted, "On account of the confirmation of decree of divorce in appeal, the first marriage will stand dissolved from the date of decree of Family Court and thereafter it cannot be said that there exists a subsisting marriage relationship or a living spouse for the purpose of Section 494 IPC."
The bench allowing the petition remarked, “The perfunctory offence alleged under Section 114 IPC will not stand attracted when the main substratum under Section 494 IPC becomes inoperative and nonest. Hence, the cognizance taken for the offence under Section 494, 114 r/w Section 34 IPC will not stand in the eye of law and the same is liable to be quashed. I do so. The Crl.M.C. will stand allowed accordingly.”
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