19 February 2020
Supreme Court
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KRISHNAVENI RAI Vs PANKAJ RAI

Bench: HON'BLE MR. JUSTICE ARUN MISHRA, HON'BLE MS. JUSTICE INDIRA BANERJEE, HON'BLE MR. JUSTICE M.R. SHAH
Judgment by: HON'BLE MS. JUSTICE INDIRA BANERJEE
Case number: Crl.A. No.-000321-000321 / 2020
Diary number: 26750 / 2019
Advocates: BELA MAHESHWARI Vs RESPONDENT-IN-PERSON


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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 321 OF 2020

(ARISING OUT OF SLP (CRL.) NO. 7903 OF 2019)

Krishnaveni Rai                              ……Appellant

versus

Pankaj Rai & Anr.                             ……Respondents

J U D G M E N T

Indira Banerjee, J.

Leave granted.

2. This  appeal  is  against  a  judgment  and order  dated 9.4.2019

passed  by  the  High  Court  for  the  State  of  Telangana,  dismissing

Criminal Revision Case No. 2587 of 2017 filed by the Appellant under

Section 397/401 of the Code of Criminal Procedure, 1973 (for short

“Cr.P.C”),  challenging  the  order  dated  7.8.2017  passed  by  the

Additional Metropolitan Sessions Judge, Fast Track Jubilee Hills Bomb

Blast  Case(JHBBC)-cum-Additional  Family  Judge  at  Hyderabad,

dismissing the application of the Appellant under Section 125 of the

Cr.P.C. for maintenance, on the purported ground that the marriage

between the Appellant and the Respondent No.1 was a nullity.

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3. On  or  about  11.09.1989,  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 dated 28.06.2005, passed by the Family Judge,

Hyderabad in O.P. No. 847 of 2000.   

4. According to the Appellant, the period of limitation for filing an

appeal against the decree of divorce passed on 28.06.2005, expired

on 26.09.2005.  No appeal was filed either by the Appellant or by the

said Arvind Chenjee, within the period of limitation.   

5. In  August,  2006,  almost  a  year  after  expiry  of  the period of

limitation, the Appellant filed an appeal against the said order dated

26.8.2005.  The delay in filing the appeal was condoned by an order

dated 13.7.2007.  The operation of the decree does not appear to

have been stayed.

6. In  the  meanwhile,  in  2006  the  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 on 02.09.2016.  

7. On 13.12.2014, 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,  the  Appellant  married  the

Respondent No.1  

8. Unfortunately,  the  Appellant’s  second  marriage  also  did  not

work.  The Appellant has alleged that the Respondent No.1 subjected

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the Appellant to harassment and cruelty and even threw her out of

the matrimonial home.   

9. 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 No.470/2015.

10. Claiming  that  she  did  not  have  any  independent  source  of

income, the Appellant filed an application being M.C. No. 152 of 2015

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.  

11. The Respondent No.1, on the other hand, filed a suit being O.P.

No.  475  of  2015  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.  We are informed that the suit is pending trial.  

12. On or about 28.5.2015, the Appellant filed a complaint before

the IV Metropolitan Magistrate, Hyderabad seeking relief against the

respondent  No.1  under  the  Protection  of  Women  from  Domestic

Violence Act, 2005.

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13. On  or  about  22.3.2016,  Charge  sheet  was  filed  in  the

proceedings against the Respondent No.1 inter alia  under Sections

406, 498A & 500 of the IPC, pursuant to FIR No.470/2015.    

14. On  or  about  15.3.2017,  the  Respondent  No.1  filed  an

application  u/s  239  for  Cr.P.C  for  discharge,  from the  proceedings

initiated pursuant to FIR No.470/2015, which was dismissed by the

XIIIth Addl.  Chief  Metropolitan  Magistrate,  Hyderabad  by  an  order

dated 15.3.2017.  

15. The  Respondent  No.1  filed  a  criminal  Revision  Petition

No.192/2017  in  the  Court  of  the  Metropolitan  Sessions  Judge,

challenging  the  aforesaid  order  dated  15.3.2017  of  the  XIIIth

Additional Chief Metropolitan Magistrate, rejecting the application of

the Respondent No.1 for discharge.  

16. By an order dated 23.1.2018, the Metropolitan Sessions Judge,

Hyderabad allowed the Criminal  Revision Petition No.127/2017 and

discharged the Respondent No.1 from the proceedings under Section

406, 498A and 500 of the IPC.  The Appellant contends that the order

dated  23.1.2018  discharging  the  Respondent  No.1,  was  passed

without notice to the Appellant.   

17. In the meanwhile, by an order dated 7.8.2017, the Additional

Metropolitan Sessions Judge, Fast Track Jubilee Hills Car Bomb Blast

Case  (JHCBBC)-cum-Additional  Family  Judge,  Hyderabad,  dismissed

the application filed by the Appellant,  claiming maintenance under

Section 125 CrPC.

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18. The Appellant filed a Criminal Revision Petition being Crl. R.P.

No.149 of 2019 in the High Court of Telangana inter alia  challenging

the order dated 23.1.2018 discharging the Respondent No.1 from the

proceeding under Sections 406, 498A and 500 of the IPC and also

made an application being I.A. No.8 of 2019 for suspension of the said

order  of  discharge.   By  an order  dated 15.2.2019,  the  High Court

suspended the said order of discharge.    

19. The Appellant also filed a Criminal  Revision Case No.2587 of

2017 before  the  High  Court  challenging  the  order  dated  7.8.2017

passed  by  the  Additional  Metropolitan  Sessions  Judge,  Fast  Track

Jubilee  Hills  Car  Bomb  Blast  Case  (JHCBBC)-cum-Additional  Family

Judge,  Hyderabad, dismissing the application being M.C.  No.152 of

2015  of  the  Appellant  for  maintenance  under  Section  125  of  the

Cr.P.C.  

20. The  Appellant  filed  a  Criminal  Revision  Petition  No.2587

challenging  the  aforesaid  order  dated  7.8.2017.   The  Respondent

No.1,  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.  By an order dated 9.4.2019

the said criminal proceedings were quashed on the ground that the

marriage  of  the  Appellant  with  the  Respondent  No.1,  solemnised

during the pendency of an appeal from the decree of dissolution of

the appellant’s marriage with her first husband, was null and void.  

21. An application for pendente lite maintenance being IA No.1192

of 2017 filed by the Appellant in the Court of the 1st Additional Family

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Judge, Hyderabad in O.P. No. 475 of 2015 being the pending suit of

the  Respondent  No.1  for  declaration  of  nullity  of  the  marriage

between the Appellant and the Respondent No.1, was allowed by an

order dated 19.12.2018 whereby the Respondent No.1 was directed

to pay Rs.20,000/- per month from the date of the application, that is,

30.11.2017 and an additional Rs.20,000/- towards litigation expenses.

22. A Civil Revision Petition No.242 of 2019 filed by the Respondent

No.1, challenging the aforesaid order dated 19.12.2018 passed by the

Family Court has been dismissed by a Single Bench of the High Court

by a well-reasoned judgment and order dated 19.03.2019.

23. The  Criminal  Revision  Petition  No.2587  of  2017  filed  by  the

Appellant against the order dated 7.8.2017 passed by the Additional

Metropolitan Sessions Judge, Fast Track Jubilee Hills Car Bomb Blast

Case  (JHCBBC)-cum-Additional  Family  Judge,  Hyderabad  dismissing

the application under Section 125 of the Cr.P.C. was also dismissed by

an order dated 9.4.2019, on the same ground on which the Criminal

proceedings against the Respondent No.1 had been quashed.   

24. 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 on 13.12.2014.  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

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other words, is a second marriage performed during the pendency of

an appeal from a decree of divorce a nullity, even though there were

no stay of operation of the decree.

25. Sections 5, 11 and 15 of the Hindu Marriage Act, 1955, relevant

to this appeal are set out hereinbelow for convenience: -

“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 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;

xxx xxx xxx

11. Void marriages.- 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.

xxx xxx xxx

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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.”

26. 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:-  

(i) Neither  party  has  a  spouse  living  at  the  time  of

marriage [(Section 5(i) of the Hindu Marriage Act];

(ii) Neither party was incapable of giving valid consent of

the marriage in circumstances specified in Section 5(ii)

of the Hindu Marriage Act;

(iii) 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];

(iv) 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];

(v) 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];

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27. Section  11  of  the  Hindu  Marriage  Act  provides  that  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 of the conditions in Clauses (i), (iv) and (v) of the

Section 5.    

28. A careful reading of Sections 5, 11 and 15 makes it amply clear

that while Section 5 specifies the conditions on which a marriage may

be solemnized between two Hindus, only contravention of some of

those conditions render a marriage void.   

29. Marriage in contravention of Section 5(i) of the Hindu Marriage

Act, that is, where either party or both have a spouse living at the

time of marriage is void.  Similarly, a marriage is void if the parties to

the marriage are within the degrees of prohibited relationship unless

the  custom  or  usage  governing  each  of  them  permits  of  such

marriage, or if the parties are sapindas of each other unless, again,

the  custom  or  usage  governing  each  of  them  permits  marriage

between the two. [Sections 5(iv) and 5(v)]   

30. Contravention of Sections 5(ii)  or 5(iii)  of the Hindu marriage

Act does not render the marriage null and void.  In such a case, the

marriage  is  voidable  at  the  option  of  the  underaged party  to  the

marriage or the party who could not have validly consented to the

marriage.  

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31. 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.  

32. 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 protection afforded by Section 15 is primarily to a

person contesting the decree of divorce.  As observed by Bobde, J. in

his concurring judgment in Anurag Mittal (supra):-

“I am in agreement with the view taken by Nageswara Rao, J. but it is necessary to state how the question before us has already been settled by the decision in Lila Gupta v. Laxmi Narain [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . Even when the words of the proviso were found to be prohibitory in clear negative terms — “it shall not be lawful”, etc., this Court held that the incapacity to marry imposed by the proviso did not lead to an inference of nullity, vide para 9 of Lila Gupta [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . It is all the more  difficult  to  infer  nullity  when there  is  no  prohibition; where there are no negative words but on the other hand positive  words  like  “it  shall  be  lawful”.  Assuming  that  a marriage contracted before  it  became lawful  to do so was unlawful and the words create a disability, it is not possible to infer a nullity or voidness vide paras 9 and 10 of Lila Gupta case…

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“………. What is held in essence is that if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity. Quae incapacity imposed by statute,  there is no difference between an incapacity imposed by negative language such as “it shall not be lawful” or an incapacity imposed by positive language like “it shall be lawful (in certain conditions, in the absence  of  which  it  is  impliedly  unlawful)”.  It  would  thus appear that the law is already settled by this Court that a marriage contracted during a prescribed period will  not be void  because  it  was  contracted  under  an  incapacity. Obviously, this would have no bearing on the other conditions of  a  valid  marriage.  The  decision  in  Lila  Gupta  case  thus covers the present case on law.”

33. In Leela Gupta v. Laxmi Narain & Ors. reported in (1978) 3

SCC 258, this Court held:

“…..the  interdict  of  law is  that  it  shall  not  be lawful  for  a certain party to do a certain thing which would mean that if that act is done it would be unlawful.  But whenever a statute prohibits  a  certain  thing  being  done  thereby  making  it unlawful,  without  providing  consequence  for  the breach, it  is not legitimate to say that such a thing when done is void because that would tantamount to saying that every unlawful act is void.”  (Paragraph 10).  

“….Merely  because  each  one  of  them  is  prohibited  from contracting a second marriage for a certain period, it  could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist…….. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting…..” (paragraph 13).

“Thus,  examining  the  matter  from all  possible  angles  and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences  having  been  provided  for  in  respect  of  the marriage  in  contravention  of  the  proviso  to  Section  15,  it cannot be said that such marriage would be void” (paragraph 20)”

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34. 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.    Section  15  permits  a

marriage after dissolution of a marriage if there is no right of appeal

against the decree, or even if there is such a right to appeal, the time

of appealing has expired without an appeal having been presented, or

the appeal has been presented but has been dismissed.  In this case

no  appeal  had  been  presented  with  the  period  prescribed  by

limitation.   

35. 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.    

36. 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.   

37. It could never have been the legislative intent that a marriage

validly contracted after the divorce and after expiry of the period of

limitation to file an appeal from the decree of divorce should rendered

void  on  the  filing  of  a  belated  appeal.    If  the  marriage  of  the

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Appellant’s  ex-husband  in  2006  was  a  valid  marriage  in  law

recognizing that he had no living spouse, the subsequent re-marriage

of the Appellant could also not be void.   We are in full agreement

with the view of this Court in Leela Gupta (supra) that the effect of

the prohibition against one of the parties from contracting a second

marriage for a certain period is not to nullify the divorce and continue

the dissolved marriage, as if the same were subsisting.    

38. Learned counsel appearing on behalf of the Appellant has also

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.  

39. The  judgment  and  order  under  appeal  confirming  the  order

dated 7.8.2017 by relying on the order in Criminal Petition 14188 of

2015 cannot be sustained.  The order dated 02.09.2016 of dismissal

of the appeal was only a formality.

40. The appeal  is  allowed.   The order  under  appeal  and the

order  dated  7.8.2017  of  the  Additional  Metropolitan  Sessions

Judge, Hyderabad dismissing M.C No.152 of 2015 are set aside.

The application being M.C.  No.  152 of  2015 is  remitted to the

appropriate  Court  having  jurisdiction  for  determination  of  the

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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  dated  19.12.2018,  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 being O.P. No. 475 of 2015.  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.