Krishnaveni Rai Vs Pankaj Rai & Anr. CRIMINAL APPEAL NO. 321 OF 2020 – FEBRUARY 19, 2020
The judgment was pronounced by Hon’ble justice INDIRA BANERJEE and Hon’ble justice M.R. SHAH.
Facts
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. According to the Appellant, the period of limitation for filing an appeal against the decree of divorce expired. No appeal was filed either by the Appellant or by the said Arvind Chenjee, within the period of limitation. almost a year after expiry of the period of limitation, the Appellant filed an appeal against the said order. In the meanwhile, the said Arvind Chenjee had remarried Shipra Chenjee. The Appellant lodged a complaint against the Respondent, under Sections 406, 498A and 500 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) which was registered as FIR No.470/2015. 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.
Learned counsel appearing on behalf of the Appellant has argued that maintenance cannot be refused on the ground of nullity of marriage, until there is a declaration of nullity of marriage by a competent Court, in appropriate proceedings under Section 11 of the Hindu Marriage Act. We need not go into this question in view of our finding that a marriage contracted during the pendency of an appeal from a decree is not ab initio void, and certainly not when such an appeal is filed after expiry of the period of limitation.
The Respondent on the other hand, filed a petition under Section 482 of the Cr.P.C., for quashing of the criminal proceedings against him under Sections 406, 498A and 506 of the IPC. On the ground that the marriage of the Appellant with the Respondent, solemnized during the pendency of an appeal. from the decree of dissolution of the appellant’s marriage with her first husband, was null and void.
The court observed that Sections 5, 11 and 15 of the Hindu Marriage Act, 1955, relevant to this appeal. Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and 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 preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again. Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so. In any case, the bar of Section 15 is not at all attracted in the facts and circumstances of this case, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. 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. As observed above, the appeal was infructuous for all practical purposes, from the inception, since the Appellant’s ex-husband had lawfully remarried after expiry of the period of limitation for filing an appeal, there being no appeal till then.
Thus, the appeal is allowed.
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– Aarthy K
