Telangana High Court
Mudireddydivya vs Sulktisivarama Reddy on 26 March, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
FAMILY COURT APPEAL No.19 of 2025
Mr. Duvva Pavan Kumar, learned counsel for the appellant.
Sri U. Sri Pranav, learned counsel for the respondent
JUDGMENT:
(Per Hon’ble. Justice Moushumi Bhattacharya)
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
2
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
3
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
4
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 28.01.2025.
Counsel submits that the limitation for filing of the Appeal is
saved by section 28(4) of the 1955 Act read with section 19(3) of
the 1984 Act. Counsel has addressed us on ‘Customary Divorce’
which was the respondent’s key argument regarding his first
marriage and on the Rules regulating proceedings under the
1955 Act with regard to impleadment of a co-respondent.
10. Counsel has taken us through the facts of the case
including the issue of desertion by the respondent and the
consequences of the respondent marrying the appellant without
divorcing his first wife within the framework of section 375 of
The Indian Penal Code, 1860 (IPC)/section 63 of The Bharatiya
Nyaya Sanhita, 2023 (BNS). Counsel has made a specific
assertion that the appellant did not press for alimony before the
5
Trial Court and does not press for maintenance or alimony in
the present Appeal. Counsel submits that no amount of alimony
will compensate for the injustice caused to the appellant.
The Respondent remained un-represented in the Appeal despite
service.
11. A perusal of the proceeding sheet dated 12.02.2025 shows
that notice of the Appeal and the relevant documents were
delivered to the respondent as well as counsel who represented
the respondent in the Trial Court. Counsel for the appellant has
taken us through the exchange of text and Whatsapp messages
between counsel/his associates and counsel for the respondent.
12. The Memo of Proof of Service dated 10.02.2025 filed on
behalf of the appellant shows satisfactory service on the
respondent. The respondent however chose not to contest the
present Appeal despite repeated notices. We hence proceeded to
hear learned counsel appearing for the appellant.
Decision
13. We propose to deal with the arguments made on behalf of
the appellant under individual heads of discussion for ease of
reference.
6
14. The first caption deals with the issue of limitation in filing
of the present Appeal under section 19 of The Family Courts
Act, 1984.
A. Limitation:
15. The impugned order was passed on 19.11.2024. The
appellant applied for a copy of the impugned order on
21.11.2024 which was received on 13.12.2024. The Appeal was
filed on 28.01.2025 i.e., 46 days after the date of receipt of the
order.
A1. On Facts:
16. Counsel has addressed the Court on the point whether
the appellant could have filed a petition seeking annulment of
marriage under section 12(2) of the 1955 Act within the
prescribed period of limitation.
17. The relevant dates for this purpose are as follows:
October, 2019 – The appellant’s knowledge of the first
marriage of the respondent not having been dissolved.
01.11.2019 – FIR filed by the appellant in 2019.
October, 2020 – Limitation for filing a petition for annulling
a marriage under section 12(2) of the 1955 Act [section
12(2) provides that notwithstanding anything contained in
section 12(1) for annulling a marriage on the ground of
7being voidable, no petition shall be entertained if the
petition is presented more than one year after the fraud had
been discovered (12(2)(a)(i))].
18. In the context of the dates given above, the appellant’s
limitation for filing the petition under section 12 of the 1955 Act
expired in October 2020. The appellant however is covered by
the relaxation of timelines declared by the Supreme Court in the
wake of the Covid-19 pandemic, which extended from
15.03.2020 to 28.02.2022. The petitioner filed the O.P. seeking
annulment of marriage on 02.02.2021. Therefore, the petition
(O.P.No.539 of 2021) was filed during the Covid-19 exemption
period and would hence fall within the relaxation granted by the
Supreme Court in Cognizance for Extension of Limitation, in Re 1.
A2. The Law:
19. Section 28(4) of The Hindu Marriage Act, 1955 provides
for an appeal being preferred within ninety days from the date of
the decree or order passed by the Family Court.
Section 19(3) of The Family Courts Act, 1984 provides for
an appeal being preferred within thirty days from the date of the
judgment or order of a Family Court.
1
(2022) 3 SCC 117
8
20. The conflict between the two sections was resolved in
several decisions which confirmed that the applicable limitation
period would be ninety days in matters arising under the 1955
Act.
21. The Scheme and purpose of the 1984 Act, which is to
simplify the rules of evidence and procedure to enable a Family
Court to effectively deal with disputes and provide a single
platform for appeals to the High Court must be read in
conjunction with the object of the 1955 Act. The 1955 Act is an
enabler for expeditious disposal of proceedings under the said
Act. A synergetic reading of the two Acts would require a
resolution of the limitation period provided under the Acts.
22. Moreover, it is a settled rule of construction that every
effort should be made to iron the creases out in two conflicting
enactments and the more liberal enactment should be adopted
for resolving the conflict. Both the 1955 Act and the 1984 Act
are special statutes designed to ensure efficient resolution of
conflicts within the family without subjecting the parties to
further procedural hiccups. We also take recourse to the
principle of law that when two interpretations are found to be
equally possible, the Court may reasonably accept that the
Legislature intended to prescribe a larger period of limitation:
9
Shivram Dodanna Shetty Vs. Sharmila Shivram Shetty 2 , Sonia
Kunwar Singh Bedi Vs. Kunwar Singh Bedi 3 and Chaudary
Chetnaben Dilipbhai Vs. Chaudary Dilipbhai Lavjibhai 4.
23. The Court is accordingly satisfied on both counts of the
limitation issue i.e., the filing of the appellant’s O.P. for
annulment of marriage under section 12(2) of the 1955 Act, and
filing of the present Appeal under section 19(3) of the 1984 Act
read with section 28(4) of the 1955 Act.
B. Customary Divorce:
24. A pleading of Customary Divorce must be proved by
documentary or oral evidence.
25. The first time the respondent pleaded the fact of the
appellant having constructive knowledge of the respondent’s
customary divorce with his first wife was in Crl.M.P.No.2863 of
2020 in Crime No.978 of 2019 on the file of the V Additional
Metropolitan Sessions Judge, Hyderabad, on 23.12.2020. The
statement made is as follows:
“It is further humbly submitted that the de facto
complainant has constructive knowledge as on the date of
marriage that the petitioner had dissolved his first
2
2017 (1) MH.L.J 281
3
2014 SCC OnLine Bom 4605
4
C.A.No.1095 of 2022 in F.A.No.18576 of 2022
10marriage and divorced his first wife through customary
practice and tradition prevalent in his family and
relatives.”
The next pleading made by the respondent was in his
Counter to O.P.No.539 of 2021 (filed by the appellant in the
Family Court). The pleading of the respondent is as follows:
“… on advise of both side well wishers respondent
and his first wife Smt. Salukuti Subha taken customary
divorce thereafter due to severe illness, first wife of
respondent undergone coma from last 14 years on
medical ground, and the respondent performed marriage
with the petitioner after 10 years, by taken customary
divorce with the consent of the parents of 1st wife, his
daughter and well wishers of both families, which facts
the petitioner known very well as being neighbours…..”
B1. The Statutory Position:
26. The concept of Customary Divorce is recognized in section
29(2) of the 1955 Act. Section 29(2) is set out as under:
“Nothing contained in this Act shall be deemed to affect any
right recognised by custom or conferred by any special
enactment to obtain the dissolution of a Hindu marriage,
whether solemnized before or after the commencement of this
Act.”
11
27. Notwithstanding the statutory recognition, the right
recognized by custom must be proved by documentary or oral
evidence.
28. Admittedly, the respondent in the present case did not
lead any evidence of the customary divorce between the
respondent and his first wife. The impugned order dated
19.11.2024 reflects that despite conditional orders, the
respondent neither appeared nor filed his evidence. This means
that the respondent declined to lead evidence to prove
customary divorce from his first wife or otherwise. Apart from a
mere pleading that the respondent obtained divorce through
customary practice, no other evidence of the existence of such a
customary practice or a document showing that the divorce was
indeed obtained through such a customary practice was
produced by the respondent.
29. Notably, the respondent also failed to lead any evidence or
file any document evidencing his divorce from his first wife in
his petition for restitution of conjugal rights (O.P.No.1865 of
2019) filed before the Additional Family Court at
Visakhapatnam. It is settled law that no evidence can be led
12
beyond the pleadings: Srinivas Raghavendra Rao Vs. Kumar
Raman Rao 5.
30. Significantly, in the petition for restitution of conjugal
rights, the respondent filed a copy of the order passed in the
divorce petition filed by the appellant but did not file any
document with regard to his customary divorce from his first
wife. Therefore, the Trial Court was under an obligation to frame
an issue as to whether the respondent had properly pleaded the
existence of a customary divorce in the community to which the
respondent belonged and whether such customary divorce was
in tune with the manner and formalities of the attending
customs. The Trial Court should also have framed an issue and
examined it in the light of the evidence led by the respondent to
prove the customary divorce pleaded to the satisfaction of the
Court.
B2. Case Law.
31. The Supreme Court in Subramani Vs. M. Chandralekha6
examined this issue in the context of a claim that the marriage
between the respondent and one Kandasamy stood dissolved
under the customary law prevalent in the Vellala Gounder
Community in Tamil Nadu. In the facts of that case, the Trial
5
2024 INSC 165
6
(2005) 9 SCC 407
13
Court considered the oral and documentary evidence and
concluded that the respondent was entitled to 1/2 share in ‘A’,
‘C’ and ‘D’ scheduled properties and 1/3 share in ‘B’ schedule
property but dismissed the Suit for partition and separate
possession of the suit schedule properties on the ground that
the marriage between the respondent and the late Kandasamy
stood dissolved under the custom of the community to which
the parties belonged. The judgment and decree was upheld in
First Appeal. In Second Appeal filed by the respondent, the
Madras High Court adjudicated on the marriage dissolution
Deed dated 25.10.1984 which was also the subject matter in
issue before the Supreme Court. On perusal of the testimonies,
the Supreme Court held that there was no custom prevalent in
the concerned community for dissolving a marriage by mutual
consent and the witnesses had also not stated the procedure to
be followed under the prevalent custom. The Supreme Court
further held that no evidence was led to prove that the Deed of
dissolution of marriage was in conformity with the custom
applicable to divorce in the community to which the parties
belonged.
32. Gurdit Singh Vs. Angrez Kaur 7 – In this case, the
respondent No.1/Angrez Kaur filed a Suit claiming the property
7
AIR 1968 SC 142
14
as the widow of one Sunder Singh. The Trial Court decreed the
Suit holding that the respondent No.1 had married Sunder
Singh by ‘Chadar Andazi’ and the marriage was valid. The
Additional District Judge set aside the decree of the Trial Court
in First Appeal and held that the marriage of the respondent
No.1 with Sunder Singh during the lifetime of her first husband
was invalid and was not justified by any custom and
consequently, the respondent No.1 could not be treated as the
widow of Sunder Singh. In Second Appeal, the Punjab High
Court held that the question of custom had not been properly
examined by the Trial Court or the First Appellate Court and
framed an issue as to whether there was any custom among the
tribes to which the parties belonged enabling the respondent
No.1 to enter into a valid marriage by ‘Chadar Andazi’ with
Sunder Singh. The Supreme Court relied on ‘The Digest of
Customary Law’ by Sir W.H. Rattigan and held that the
existence of such a custom among Hindu Jats in the District of
Jullundur permitting divorce was doubtful. The Supreme Court
considered the witnesses examined by the appellant who
testified that such a custom was indeed in existence which
permitted a valid divorce by either the husband or wife and
accordingly held that there was no reason why the divorced wife
15
could not marry a second husband in the lifetime of her first
husband on dissolution of marriage.
33. A Division Bench of the erstwhile High Court of Andhra
Pradesh at Hyderabad, in Doddi Appa Rao Vs. General Manager,
Telecom8 held that the 1955 Act recognises divorce by custom
despite the grounds provided in section 13 of the said Act for
dissolution of marriage.
34. In G. Thimma Reddy Vs. The Special Tahsildar, Land
Reforms 9, a Single Bench of the erstwhile High Court of Andhra
Pradesh at Hyderabad found that there was oral and
documentary evidence to prove that the divorce had been
effected by custom. The High Court considered the evidence of
specific witnesses i.e., P.Ws.1-3 (the caste elders), P.W.4 (the
first wife), P.W.2 (the scribe of the Deed of Divorce) and P.W.1
(the caste elder, who had attested the document) as well as the
oral evidence of P.Ws.1-3 who spoke of the existing custom in
the caste at the relevant period in the erstwhile taluks of Aluru,
Ballari and Adoni. The High Court recorded its satisfaction of
the existence of a custom in the caste of both the parties
allowing divorce before the cast elders of the community.
8
2000 (1) CCC 146
9
1992 (3) ALT 733
16
35. Thus, the Courts in the above cases came to a specific
finding on the existence of custom in the relevant community to
support the finding of marriage/divorce.
36. In contrast, a Single Bench of the Calcutta High Court in
Krishna Veni Vs. Union of India 10 considered the challenge made
by Krishna Veni, the second wife of a freedom fighter, to the
refusal of widow’s pension by the Government of West Bengal on
the ground that the Deed of divorce between the freedom fighter
and his first wife was not acceptable under the 1955 Act in the
absence of a decree for divorce obtained from a competent Court
of law. The Court agreed with the rejection of the grant of
pension on the ground that the deed of declaration of divorce
produced by the petitioner was not proved and that the onus
lies on the petitioner to bring the existence of a custom having
the force of law. The Court held that the parties would have to
revert to section 13 of the 1955 Act for dissolution of marriage
by a decree of divorce in the absence of conclusive evidence.
B3. Conclusion
37. Section 13 of the 1955 Act provides the grounds and the
procedural mechanism for dissolution of a marriage by a decree
of divorce. Section 29(2) is an exception to the statutory
10
2021 SCC OnLine Cal 437
17
mechanism but overrides any statutory provisions where a right
is recognized by custom or conferred by a special enactment for
the purpose of dissolution of a Hindu marriage. Therefore, a
customary divorce in the community is contrary to the general
law of divorce. The exception would hence require specific
pleadings and corroboration by way of evidence. The onus of
establishing the fact of customary divorce rests on the person
propounding such a custom.
38. In the present case, it is undisputed that the respondent
did not lead any evidence for proving the alleged divorce by
custom between the respondent and his first wife or that there
was any compliance on the part of the respondent and his first
wife with the manner or formalities peculiar to the custom for
dissolution of marriage. Paragraph 4 of the impugned order
records that the respondent failed to appear or file his evidence
despite conditional orders and that “…. the respondent evidence
is eschewed” (as recorded by the Trial Court).
39. We thus conclude that the respondent’s alleged
customary divorce with his first wife remained un-proved and
unsubstantiated. The Trial Court should have framed an issue
in this regard, analysed the same and arrived at a conclusion.
The Trial Court singularly failed in this regard.
18
C. Rules To Regulate Proceedings Under The Hindu Marriage
Act, 1955.
40. The Rules for regulating proceedings under the 1955 Act
were framed by the erstwhile High Court of Andhra Pradesh in
exercise of the powers conferred by sections 14 and 21 of the
Hindu Marriage Act, 1955.
41. The petition filed by the appellant has only one
respondent i.e., the person who married the appellant on
08.03.2018 at Yadagirigutta. The petition was filed under
sections 5, 11 and 25 of the 1955 Act i.e., for annulment of
marriage as being void and for permanent alimony.
42. The question before the Court is whether the non-
impleadment of the first wife of the respondent would be
contrary to the Rules To Regulate Proceedings Under The Hindu
Marriage Act, 1955.
Rules 8(1) and (3) provide as follows:
“(1) Where a husband’s petition alleges adultery on the part of
respondent, the alleged adulterer shall if he is living, be made a
co-respondent in the petition:
Provided, however, that in case the adulterer’s name,
identity or whereabouts is unknown to the petitioner inspite of
reasonable enquiries made and the Court is satisfied that it is
just and expedient so to do, it shall, on the application of the
petitioner, dispense with the naming of the co-respondent.
(2) …………..
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(3) In every petition under Section 11 of the Act on the ground
that the condition in Section 5 (i) is contravened, the petitioner
shall make the spouse alleged to be living at the time of the
marriage a co-respondent.”
43. Rule 8(1) stipulates that where a husband’s petition
charges the respondent with adultery, the alleged adulterer
shall be made a co-respondent in the petition if the alleged
adulterer is alive on the date of filing of the petition. Rules 8(1)
and (3) are similar to Order I Rule 3 and Order I Rule 10 of The
Code of Civil Procedure, 1908 (‘CPC‘) for all intents and
purposes i.e., joinder of parties and defendants for the Court to
effectively and completely adjudicate upon and settle all
questions involved in the Suit.
44. It stands to reason that the evidence of adultery is
required to be led before the Court to establish the truth of the
accusation. The Court would hence be called upon to decide
the basis of the allegation of adultery against the respondent
and the third party. Hence, impleadment of the third party
against who adulterous relations are imputed would be in
consonance with the principles of natural justice to safeguard
the character and reputation ramifications of the person alleged
to have adulterous relations.
45. Moreover, though Rule 8(1) mandates the presence of a
co-respondent, it does not make such requirement mandatory
20
for a petition to be maintained under section 13 under the
ground of adultery. The proviso to Rule 8(1) clarifies that the
Court can dispense with the requirement of a co-respondent
where the details are unknown. The proviso to Rule 8(1) hence
preserves practicality and dispenses with the requirement of
naming the co-respondent where the Court deems it expedient
to do so.
46. Further, Rule 8(3), which requires addition of a co-
respondent in a petition under section 11 of the 1955 Act i.e.,
void marriages, cannot be equated to Rule 8(1) as the issue of
whether the marriage is void is essentially a question of law
rather than a question of fact. The presence or absence of a co-
respondent, viewed from this angle, cannot be fatal to the
outcome of the case.
C1. Case Law
47. The Supreme Court in Anil Kumar Singh Vs. Shivnath
Mishra 11 held that a person may be added as a party-defendant
without any relief being claimed against such person provided
his/her presence is necessary for finality of the question
involved in the Suit. The Supreme Court relied on Razia Begum
11 (1995) 3 SCC 147
21
Vs. Sahebzadi Anwar Begum 12 which examined the question
whether third parties claiming to be the third wife and sons
were necessary and proper parties under Order I Rule 10(2) of
the CPC and held that the rule may be relaxed in suitable cases.
48. A Single Bench of the Allahabad High Court in Udai
Narain Bajpai Vs. Smt.Kusum Bajpai 13 relied on Rules 6(a) and
6(d) framed by the Allahabad High Court in exercise of powers
conferred on it by sections 14 and 21 of the 1955 Act. Rule 6(a)
contained an exception to the requirement of making the
adulterer a co-respondent in a petition for divorce/judicial
separation. Rule 6(d) permitted filing of a separate application
with an affidavit giving the reasons for not making the adulterer
a co-respondent. The Allahabad High Court relied on Banwari
Lal Vs. State of Bihar 14 and held that the Court must see the
legislative intent before deciding whether a particular provision
in the statute is mandatory and contemplates invalidity upon
non-compliance of the same.
49. The Orissa High Court in Harekrushna Behera Vs. Manasi
Jena15 noted the exceptions where the “paramour” may not be a
12 AIR 1958 SC 886
13 AIR 1975 All 94
14 AIR 1961 SC 849
15 MANU/OR/0239/2024
22
necessary party to a petition for dissolution of marriage under
section 13(1)(i) of the 1955 Act.
C2. The Present Facts:
50. The father of the respondent’s first wife (Mr.Gangula
Pratap Reddy) was examined as LW.4 in Crime No.978 of 2019
where his recorded statement was that his daughter and the
respondent got married on 10.02.2000 and had a daughter
thereafter. However, his daughter (the respondent’s first wife)
suffered a brain hemorrhage in November, 2006 due to the
mental and physical harassment by the respondent. It was
further recorded that L.W.4 later came to know that the
respondent had got married to another lady without divorcing
L.W.4’s daughter. The statement is part of the Chargesheet in
the said criminal case which is part of the Appeal papers. Apart
from the statement made by the father of the respondent’s first
wife, counsel for the appellant has also argued that the
respondent’s first wife is presently in a comatose state and that
no useful purpose would be served by making her a co-
respondent as she will not be in a position to participate in the
proceedings or assist the Court with regard to the issue under
consideration.
23
51. We have considered the relevant Rules regulating the
proceedings initiated under the 1955 Act and the decisions
placed on the point of impleadment of a co-respondent in
specific cases. We accept the contentions made on behalf of the
appellant in favour of giving a comprehensive construction to
the Rule. We are of the view that the presence of the
respondent’s first wife as a co-respondent to the lis before us is
not necessary since this is not a case where the respondent’s
first wife would be required to be heard for preserving the
principles of natural justice. This is also not a case where the
adjudication would entail questions regarding her character,
integrity or reputation. We must also take a practical view of
the situation, since admittedly, the respondent’s first wife has
been in a state of coma for a while.
52. The requirement of impleading the respondent’s first wife
is hence dispensed with under an extended meaning given to
the proviso to Rule 8(1) of the 1955 Rules. In other words, we
do not find non-impleadment of the respondent’s first wife to be
fatal to the petition under sections 11, 5 and 25 of the 1955 Act
or in the Appeal before us.
24
D. Is the Appellant entitled to Maintenance/Permanent
Alimony?
53. Although the appellant does not wish to press for alimony
in the Appeal, it is relevant to state that there is no embargo to
grant of maintenance to a second wife: Sukhdev Singh Vs.
Sukhbir Kaur 16 (recently pronounced by the Supreme Court on
12.02.2025). The Supreme Court answered the reference in the
affirmative on whether alimony can be granted where the
marriage has been declared void and opined that a spouse
whose marriage has been declared void under section 9 of the
1955 Act is entitled to seek alimony and maintenance by
invoking section 25 of the 1955 Act.
E. Would the Respondent be visited with the consequences of
section 375 of The Indian Penal Code, 1860 and section 63 of
The Bharatiya Nyaya Sanhita, 2023?
54. The discussion in the foregoing paragraphs of this
judgment persuade us to conclude that the respondent married
the appellant during the lifetime of his first wife without being
covered by the exception carved out under section 29(2) of the
1955 Act with regard to customary divorce. This leads to the
irrefutable presumption that the respondent knowingly
16 2025 INSC 197
25
cohabited with the appellant as her spouse from 08.03.2018 on
the appellant’s mistaken belief that the respondent had divorced
his first wife.
55. Section 375 of the IPC and section 63 (d)(iv) of the BNS
envisages specific situations and the necessary lack of volition
in the act of rape or a mistaken assumption being the cause of
the volition. The fourth condition of section 375 (“Fourthly”) is
attracted where there is knowledge on the part of the man that
he is not the husband of the person on who he commits rape
and that her consent is given only because she believes that he
is her legally-wedded spouse or believes herself to be lawfully
married to that person. The relevant clauses of section 375 of
the IPC and section 63 (d)(iv) of the BNS are set out as under:
Section 375 of the IPC:
“Fourthly. – With her consent, when the man knows that
he is not her husband and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.”
Section 63 (d)(iv) of the BNS:
“(iv) with her consent, when the man knows that he is not
her husband and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married”.
26
56. Under section 5(i) read with section 11 of the 1955 Act, if
the husband is already a married man, the subsequent
marriage is void ab initio and has no sanctity in law. Since the
respondent knew at the material point of time that he had a wife
living at the time of entering into physical relations with the
appellant and the appellant’s consent to such physical relations
was premised on her believing that the respondent is her
lawfully-wedded husband, the respondent is guilty of the offence
punishable under sections 375 and 376 of the IPC and
alternatively, under sections 63 and 64 of the BNS.
57. The Supreme Court applied the “Fourthly” clause of
section 375 of the IPC in Bhupinder Singh Vs. U.T. of
Chandigarh 17 and held that the marriage between the
complainant and the accused/appellant was void ab initio since
the appellant/accused could not have lawfully married the
complainant by reason of which the accused was guilty of the
offence punishable under section 376 of the IPC.
58. We are hence of the considered view that the respondent
committed rape on the appellant under the false pretext of being
lawfully-wedded to the appellant.
17
(2008) 8 SCC 531
27
F. Desertion by the Respondent:
59. The respondent’s Original Petition (O.P.No.1865 of 2019)
before the Additional Family Court, Visakhapatnam, for
restitution of conjugal rights was dismissed for default on
19.07.2022. There was no effort on the part of the respondent
thereafter to restore the O.P. or challenge the order of dismissal.
In fact, the respondent remained ex parte in O.P.No.539 of 2021
that is in the petition filed by the appellant for annulment of
marriage.
60. Moreover, the respondent has remained unrepresented in
the present Appeal and the whereabouts of the respondent is
not known to the appellant for over 4 years. As stated above,
the notice addressed to the respondent in the present Appeal
was returned with an endorsement “no such person in the
address”. To put it simply, the respondent has made no effort
to contest the Appeal or pursue the proceedings for restitution
of conjugal rights filed before the Additional Family Court at
Visakhapatnam.
61. We do not find any reason to take a lenient view of the
respondent playing truant with the Court particularly where the
Appeal has been heard over an extended period of time with
28
several opportunities to the respondent for being represented
through counsel or appear in person.
62. We accordingly hold that the respondent is not inclined to
contest the appeal as he has not shown any inclination or
interest in his claim as the spouse of the appellant.
G. The impugned order dated 19.11.2024.
63. The impugned order opens itself up for criticism at many
levels.
64. First, the Family Court imputes constructive knowledge to
the appellant with regard to the divorce between the respondent
and his first wife without any basis for reaching this conclusion.
The Trial Court assumes that the appellant had knowledge of
the divorce since the marriage between the appellant and the
respondent was a “love cum arranged marriage”. Not only is this
finding completely irrelevant to the nature of the marriage
performed between the parties but also is contrary to the record
since the respondent has categorically stated in his counter to
the petition that their marriage was an arranged marriage. The
Family Court concludes that the appellant was at fault for not
enquiring about the divorce of the respondent despite being
married for six months.
29
65. The Trial Court indulges in findings which are both
presumptuous and objectionable. An instance of this – the
petitioner (appellant) is “enjoying luxurious life and squeezing the
money from the respondent”; and again “she is closing her eyes
and watching the marriage”. The elaborate discussion regarding
the quality of married life between the appellant and the
respondent is replete with unnecessary factual details. The
Trial Court concludes – without basis – that the appellant was at
fault for not finding out more about the respondent’s family.
66. The only finding given by the Trial Court is that the
appellant is estopped from seeking the annulment of marriage
on the ground of being the respondent’s surviving wife since the
appellant had knowledge of the same. The Trial Court, however,
does not allude to any material fact or evidence in support of the
finding of constructive knowledge on the part of the appellant.
Moreover, both the decisions referred to by the Trial Court for
denying alimony to the appellant namely Mangala Bhivaji Lad
Vs. Dhondiba Rambhau Aher 18 and Smt. Yamunabai Anantrao
Adhav Vs. Ranantrao Shivram Adhav decided by the Supreme
Court on 27.01.1988 [citation not given in the impugned order].
Smt.Yamunabai Anantrao Adhav (supra) was referred to by the
18
AIR 2010 Bom 122
30
Supreme Court in Sukhdev Singh (supra) where the Supreme
Court held that even a spouse whose marriage has been
declared void under section 11 of the 1955 Act is entitled to
seek permanent alimony or maintenance from the other spouse
under section 25 of the said Act. There is no discussion as to
the relevance of these judgments in denying the appellant’s
prayer for annulment of marriage.
67. There is a patent contradiction in the findings and
reasons given by the Family Court. While the Court denied
alimony to the appellant on the basis of the appellant being the
second wife, the Court refused to come to any finding with
regard to the status of the marriage between the respondent and
his first wife. A finding on this was necessary in the context of
the appellant’s petition seeking annulment of marriage under
section 11 of the Act i.e., on the ground that the respondent had
a surviving spouse on the date of his marriage with the
appellant. To put it simply, the Trial Court failed to consider
that the marriage between the appellant and the respondent,
both Hindus, could not have been legally solemnized if the
respondent had a spouse living at the time of the marriage.
31
68. Not having considered that point, the impugned finding
that the appellant is disentitled to alimony as the second wife of
the respondent is wholly perverse.
69. Another unsubstantiated finding is that the appellant
obtained divorce from her first husband with an alimony of
Rs.50.00 Lakhs and is now claiming permanent alimony of
Rs.1 Crore from the respondent. The Trial Court utterly failed
to consider that the respondent was equally accountable to
disclose his assets in order to resist the claim of alimony. The
impugned order does not disclose any direction on the parties to
file their affidavits disclosing their respective assets
H. Conclusion:
70. Apart from the legal propositions being answered in
favour of the appellant in the foregoing paragraphs, we are also
of the view that the impugned order contains factual anomalies
and errors of reasoning. The impugned order indicates that the
Trial Court decided to weigh the odds heavily against the
appellant without any legal or factual justification for doing so.
71. We accordingly deem it fit to set aside the impugned order
dated 19.11.2024. The reasons for doing so are stated in the
paragraphs above.
32
72. F.C.A.No.19 of 2025 is accordingly allowed. All connected
applications are disposed of. There shall be no order as to
costs.
Later:
73. At the time of pronouncing the judgment in Court today,
an Advocate appeared and submitted that he had filed his
Vakalatnama for the respondent yesterday.
74. As stated in the earlier section of this judgment, the
Appeal has been heard from 31.01.2025 to 12.03.2025 and
several notices were also received by the respondent. However,
the respondent chose not to appear during this period and filed
the Vakalatnama only yesterday. Hence, we proceeded to
pronounce the judgment today.
_________________________________
MOUSHUMI BHATTACHARYA, J
_________________________________
B.R.MADHUSUDHAN RAO,J
Date: 26.03.2025
L.R. Copy to be marked.
B/o.
VA/BMS
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