The Court observed that the bar, if any, applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce has stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal. Stating all of the above, the bench allowed the appeal and the husband to pay maintenance to the petitioner-wife.
Facts of the case
The Appellant married one Arvind Chenjee in accordance with Hindu rites and customs. The marriage of the Appellant with the said Arvind Chenjee was, however, dissolved by a decree of divorce, passed by the Family Judge, Hyderabad.In August, 2006, almost a year after expiry of the period of limitation, the Appellant filed an appeal against the said order. The delay in filing the appeal was condoned by an order. The operation of the decree does not appear to have been stayed.
In the meanwhile, in 2006 they said Arvind Chenjee had remarried Shipra Chenjee. The appeal filed by the Appellant against the decree of divorce was, from the inception, infructuous. The appeal was, however, formally dismissed as withdrawn, over 9 years after the Appellant’s first marriage with the said Arvind Chenjee was dissolved and long 8 years after the Appellant’s ex-husband had re-married. Unfortunately, the Appellant’s second marriage also did not work. The Appellant has alleged that the Respondent No.1 subjected the Appellant to harassment and cruelty and even threw her out of the matrimonial home. The Appellant lodged a complaint against the Respondent No.1 at the Banjara Hills Police Station, under Sections 406, 498A and 500 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) which was registered as FIR. Claiming that she did not have any independent source of income, the Appellant filed an application in the Court of the Additional Metropolitan Sessions Judge, Fast Track Jubilee Hills Car Bomb Blast Case (JHCBBC)-cum-Additional Family Judge, Hyderabad, under Section 125 the Code of Criminal Procedure (Cr.P.C.) for maintenance. The Respondent No.1, on the other hand, filed a suit in the Additional Family Court, Hyderabad, for declaration of nullity of his marriage with the Appellant, inter alia, on the ground that the marriage had been solemnized during the pendency of an appeal from the decree of dissolution of the appellant’s marriage with her first husband. According to the Appellant, the suit was a counterblast to the application for maintenance. As recorded by the High Court, it is not in dispute that the Appellant and the Respondent No.1 had got married as per prevailing customs. The short question in this appeal is, whether the Appellant could have been denied maintenance under Section 125 of the Cr.P.C. on the ground that her marriage with the Respondent No.1 was a nullity, just because the marriage had taken place while an appeal filed by the Appellant against a decree of dissolution of marriage with her first husband was still pending. In other words, is a second marriage performed during the pendency of an appeal from a decree of divorce a nullity, even though there was no stay of operation of the decree.
Conditions for a hindu marriage
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
- neither party has a spouse living at the time of the marriage;
- at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5
Divorced persons when may marry again
When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, 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 for either party to the marriage to marry again.”
It is well settled that a marriage which is null and void is no marriage in the eye of law. Where the marriage is a nullity application for maintenance is liable to be set aside on that ground alone. Under Section 5 of the Hindu Marriage Act, a marriage may validly be solemnized between any two Hindus, subject to the following conditions:-
- Neither party has a spouse living at the time of marriage [(Section 5(i) of the Hindu Marriage Act];
- Neither party was incapable of giving valid consent of the marriage in circumstances specified in Section 5(ii) of the Hindu Marriage Act;
- The parties to the marriage are of requisite age, that is, the bridegroom should have completed 21 years of age and the bride 18 years of age, at the time of marriage [Section 5(iii) of the Hindu Marriage Act];
- The parties should not be within the degree of prohibited relationship unless the custom or usage governing each of them permits such marriage [(Section 5(iv) of the Hindu Marriage Act];
- Parties are not sapindas of each other unless the custom or usage governing each of them permits between two. [(Section 5 (v) of the Hindu Marriage Act];
As held by this Court in Anurag Mittal v. Shaily Mishra Mittal reported in (2018) 9 SCC 691, the object of Section 15 is to provide protection to the person who had filed an appeal against the decree of dissolution of marriage and to ensure that such appeal was not frustrated.
The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal.
Order of the court
The appeal is allowed. The order under appeal and the order of the Additional Metropolitan Sessions Judge, Hyderabad dismissing are set aside. The application is remitted to the appropriate Court having jurisdiction for determination of the Appellant’s claim to maintenance. In the meanwhile, the Respondent No.1 shall pay to the Appellant maintenance of Rs.20,000/- per month, as directed by the Family Court by its order, without prejudice to the rights and contentions of either party, until further orders of the appropriate Court/Family Court in the application under Section 125 of the Cr.P.C., or in the suit. The Respondent No.1 shall also pay the Appellant a lump sum amount of Rs.1,00,000/- towards arrears of maintenance within four weeks from date, which may later be adjusted towards arrears of maintenance as may be determined by the appropriate Court/Family Court.
………..J. [INDIRA BANERJEE]
………………………J. [M.R. SHAH]
FEBRUARY 19, 2020; NEW DELHI
Edited by Pragash Boopal
Approved & Published – Sakshi Raje