Telangana High Court
Maj Pankaj Rai Retd Pankaj Rai vs The State Of Telangana.,Rep.,Pp on 9 April, 2019
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL PETITION NO.14188 OF 2015
ORDER:
This Criminal Petition is filed under Section 482 of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.'), by the petitioner/respondent seeking to quash the proceedings against him in DVC No.170/2015 on the file of IV Metropolitan Magistrate, Hyderabad.
2. Heard arguments of petitioner/Sri Maj Pankaj Rai, who appeared as party-in-person; learned Additional Public Prosecutor representing the respondent No.1/State; Sri C.Raghu, learned counsel for respondent No.2/de facto complainant and perused the record.
3. Sri Maj Pankaj Rai/petitioner herein, who appeared as party-in-person, vehemently contended that respondent No.2/defacto complainant stayed only for 33 days and voluntarily left his house on 20.03.2015 without any valid reasons and without informing him, when he requested respondent No.2 to furnish the divorce decree for registration of their marriage. The respondent No.2 suppressed the factum of subsistence of first marriage and falsely induced him to believe that her first marriage with her first husband was dissolved. Respondent No.2 also suppressed the factum of filing F.C.A.No.109 of 2007 before the High Court against the divorce granted between her and her first husband by the Family Court, City Civil Courts, Hyderabad in O.P.No.847 of 2000. By 2 suppressing all these facts, the respondent No.2 married petitioner herein on 13.12.2014. Section 15 of the Hindu Marriage Act debars a divorcee from remarrying till the appeal filed has been adjudicated. The respondent No.2 preferred the appeal before this Court on 31.08.2006 in FCA.No.109 of 2007 prior to her marriage with the petitioner on 13.12.2014 and the same is pending adjudication. Having come to know the mischief played by the respondent No.2 i.e, suppressing the pendency of appeal and existence of first marriage, he filed O.P.No.475/2015 before the Judge, Additional Family Court, Hyderabad under Section 12 (1) of Hindu Marriage Act on 20.04.2015. He further submits that as the second marriage is a nullity, the respondent No.2 herein does not come under the definition of 'wife' as envisaged under Section 125 (b) Cr.P.C and she is not entitled to file any complaint muchless under the Protection of Women from Domestic Violence Act, 2005 (for short "D.V.Act"). This misrepresentation and suppression of facts amounts to cheating and the DVC is filed only to harass him. That he faced harassment and mental torture at the hands of respondent No.2. Ultimately, the petitioner/party-in-person prayed to allow the Criminal Petition. In support of his submission, the petitioner/party in person relied upon the following decisions:
i) Anurag Mittal v. Shaily Mishra Mittal1
ii) Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav2
iii) M.M.Malhotra v. Union of India and others3 1 AIR 2018 SC 3983 2 AIR 1988 SC 644 3 AIR 2006 SC 80 3
4. Sri C.Raghu, learned counsel for respondent No.2/de facto complainant would contend that respondent No.2 is the legally wedded wife of the petitioner herein and the marriage was solemnized on 13.12.2014 as per the customs prevailing in the Hindu law. The petitioner being widower, married the respondent No.2, who is a divorcee. The second marriage of the parties was hurriedly fixed at the behest of the petitioner, after consulting astrologers, after the death of his first wife. Thereafter, the respondent No.2 was subjected to lot of mental and physical torture and was also subjected to cruel behaviour in the hands of the petitioner/party-in-person and this ultimately driven the respondent No.2 out of matrimonial house. Therefore, she was constrained to file complaint against the petitioner under Section 12 of the D.V.Act and ultimately, prayed to dismiss the Criminal Petition. Learned counsel in support of his submissions, relied upon the following decisions:
i) Anurag Mittal v. Shaily Mishra Mittal (1 supra)
ii) Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and others4
iii) Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga5
5. In view of the submissions made by both sides, the following point has come up for determination:
"Whether the proceedings in D.V.C.No.170 of 2015 on the file of the IV Metropolitan Magistrate, Hyderabad, are liable to be quashed?4
AIR 2013 SC 346 5 AIR 2005 SC 422 4
6. POINT:
There is no dispute with regard to the performance of marriage in between the petitioner and the respondent No.2 on
13.12.2014 as per the customs prevailing in Hindu law. It is also a fact that the respondent No.2 has preferred an appeal vide FCA No.109/2007 before the High Court against the grant of divorce on 28.06.2005 in O.P.No.847/2000. It is pertinent to state that before the performance of second marriage on 13.12.2014, the said appeal was pending and it was dismissed as withdrawn on 02.09.2016 i.e., after performance of the second marriage.
7. It is appropriate to refer the provisions under Sections 5, 11 and 15 of Hindu Marriage Act, 1955, which reads as follows:
"Section 5 - Conditions for a Hindu marriage A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-
(i) neither party has a spouse living at the time of the marriage;
(ii) 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
(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;5
Section 11 - Void marriages:
Any marriage solemnised 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."
Section 15 - 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."
8. It is also apt and appropriate to refer the decision in Anurag Mittal's case (1 supra), wherein the Apex Court held thus:
"18. Section 15 of the Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.
19. Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made 6 clear by filing of the application for withdrawal. It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.
20. It is not the case of the Appellant that the marriage dated 06.12.2011 is lawful because of the interim order that was passed in the appeals filed by him against the decree of divorce. He rested his case on the petition filed for withdrawal of the appeal. The upshot of the above discussion would be that the denouement of the Family Court is correct and upheld, albeit for different reasons. The conclusion of the High Court that the marriage dated 06.12.2011 is void is erroneous. Hence, the judgment of the High Court is set aside."
9. In the aforementioned decision, an application to withdraw the appeal filed challenging the divorce granted in between the parties was filed on 28.11.2011 before the Registrar of the High Court of Delhi. Thereafter, the said appeal was dismissed as withdrawn on 20.12.2011. After filing the withdrawal application in the Registry, the second marriage in between the parties was performed on 06.12.2011. In the case on hand, the appeal filed by the respondent No.2/de facto complainant herein before the High Court vide FCA No.109/2007 was dismissed as withdrawn on 02.09.2016 and the second marriage in question was performed on 13.12.2014. Before the performance of second marriage, no application was filed by the respondent No.2/de facto complainant to withdraw the said appeal. Moreover, the appeal was withdrawn much after the performance of second marriage i.e., on 02.09.2016 as indicated above. The facts in 7 the afore-mentioned decision are distinct from the case of the respondent No.2/de facto complainant.
10. In Deoki Panjhiyara's case (4 supra), it was held that the wife was granted interim maintenance by the Trial Court and the same was confirmed by the Sessions Court, the Hon'ble High Court was pleased to set aside the same on the ground of nullity of the marriage. However, the Apex Court held that unless the marriage is declared as null and void by the competent Court, the interference by the High Court was unwarranted. Since in the instant case, the second marriage is declared as nullity by this Court today in Crl.R.C.No.149 of 2019, this decision has no application to the case on hand.
11. In Rameshchandra Rampratapji Daga's case (5 supra), the Apex Court observed as follows:
"Para 22: The facts of the present case fully justify grant of maintenance both to the wife and the daughter. The evidence of the wife has been believed by the courts below and according to us rightly so. From circumstances preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable enquiries about the previous marriage of the present wife. The wife's version is natural and inspires belief that the document of Chor Chhithi was shown and given to the husband. It is proved from the photocopy of the foil of Registration, placed on record. According to the wife, the husband did receive the document of Chor Chhithi but has not produced it before the Family Court. It is argued that it is open to the wife, if the document was registered, to get a copy from the Registration office. Even if that was possible, we find no ground to disbelieve her version that the fact of her previous marriage was not concealed from the present husband. The husband is an advocate. His falsehood went to the extent of denying his second marriage and calling his wife only to be a governess of his children from 8 the first wife. He unsuccessfully denied even the parentage of daughter Puja, born through him. He failed to lead any evidence on the illegitimacy of the child. After the second marriage the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990. In such a situation, the Family Court and High Court were fully justified in holding that the wife deserves to be granted maintenance under Section 25 of the Act."
In the aforesaid decision, the Chor Chithi, a document relating to dissolution of first marriage of the parties was put to the notice of the husband before the second marriage was performed. Further, the husband/advocate took a false defence that his second wife is only a governess to his children. This contention was substantiated in her evidence. Here in the case on hand, there is no such evidence.
12. In Yamunabai Anantrao Adhav's case (2 supra), the Apex Court observed that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code. It was further observed that Clause (1)(i) of Section 5 lays down, for lawful marriage, the necessary condition is that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition is null and void under Section 11 of the Act. The marriages covered by Section 11 are void-ipso- jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the Section permits a formal declaration to be made on the presentation of a petition, it is not essential to 9 obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose. The marriage of the appellant must, therefore, be treated as null and void from its very inception. The above proposition was reiterated by the Apex Court in M.M.Malhotra's case (3 supra).
13. The material placed on record clearly establishes that there was marital relationship between the respondent No.2/de facto complainant and her first husband and the marriage between them subsisted as on 13.12.2014. It establishes that the second marriage in between the respondent No.2 and the petitioner was performed during the subsistence of the first marriage of the respondent No.2/de facto complainant. Therefore, it is a nullity. There is also material to substantiate that by suppressing the material facts with regard to the first marriage of the respondent No.2, the marriage in between the petitioner and respondent No.2 was performed. Even though there was a second marriage in between the parties to the litigation on 13.12.2014, it is not a marriage in the eye of law.
14. In Ashabai Machindra Adhagale vs. State of Maharashtra and others6, the Apex Court held thus:
"The scope for interference on the basis of an application under Section 482 Cr.P.C. is well known. Section 482 Cr.P.C. does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice."6
AIR 2009 SC 1973 10 Generally this Court will not invoke its inherent jurisdiction under Section 482 Cr.P.C for the cases of this nature. The issues that are raised in this application are somewhat distinct from the regular contentions. The submission made on behalf of the petitioner/party-in-person that the marriage in between him and the respondent No.2/de facto complainant is a nullity since it took place during the subsistence of first marriage of the respondent No.2/de facto complainant, is sustainable. The marriage in between the parties herein is a void one in terms of Section 15 of Hindu Marriage Act, 1955 and the same has been upheld by this Court today in Crl.R.C.No.149/2019. When there is no marital relationship subsisting between the parties, the respondent No.2/de facto complainant is not entitled to maintain an application under Section 12 of D.V.Act. Under these circumstances, continuation of proceedings against the petitioner amounts to abuse of process of law. Hence the proceedings in DVC No.170/2015 pending on the file of IV Metropolitan Magistrate, Hyderabad are liable to be quashed.
15. Accordingly, the Criminal Petition is allowed quashing the proceedings in DVC No.170/2015 on the file of IV Metropolitan Magistrate, Hyderabad.
Miscellaneous petitions, if any pending, shall stand closed.
____________________________ Dr. JUSTICE SHAMEEM AKTHER Date: 09.04.2019 scs