IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 10TH DAY OF AUGUST 2021 / 19TH SRAVANA, 1943
CRL.MC NO. 2077 OF 2017
(CC NO.2105/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS
COURT,CHAVAKKAD, THRISSUR)
PETITIONER/1ST ACCUSED:
MANOJ, AGED 40 YEARS,
AGED 40 YEARS, S/O.PUSHPANGADAN,MANAYIL HOUSE,
P.O.CHAKKUMKANDAM,PALUVAI, CHAVAKKAD,
THRISSUR DISTRICT.
BY ADVS.
SMT.P.K.PRIYA
SMT.MONCY FRANCIS
SRI.SURAJ PHILIP JACOB
RESPONDENTS/COMPLAINANTS/ACCUSED 2 TO 4:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2 GAYATHRI, AGED 35 YEARS, D/O.MOHANAN,PANAKKAL HOUSE,
MANNANTHALA P.O.,CHAVAKKAD, THRISSUR DISTRICT.680 001.
3 PUSHPANGADAN,
AGED 75 YEARS, MANAYIL HOUSE,P.O.CHAKKUMKANDAM,
PALUVAI,CHAVAKKAD, THRISSUR DISTRICT.680 001.
4 KOMALAVALLY,
AGED 60 YEARS, W/O.PUSHPANGADAN,MANAYIL HOUSE,
P.O.CHAKKUMKANDAM, PALUVAI,CHAVAKKAD, THRISSUR
DISTRICT.680 001.
5 JINESH,
AGED 35 YEARS, S/O.PUSHPANGADAN,MANAYIL HOUSE,
P.O.CHAKKUMKANDAM, PALUVAI,CHAVAKKAD, THRISSUR
DISTRICT.680 001.
BY ADVS.
SR
SMT.M.S.LETHA
SRI.RAJIT
SR.GOVT.PLEADER SRI.NOUSHAD K.A.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.MC NO. 2077 OF 2017 2
C.R.
ORDER
At the instance of first wife, cognizance was taken
for the offences under Sections 494, 114 r/w Section 34
IPC in C.C.No.2105/2013 of the JFCM, Chavakkad on the
allegation that during the pendency of the appeal against
the decree of divorce, her husband entered into a second
marriage. Reliance was placed on Chandra Mohini
Srivastava v. Avinuh Prasad Srivastava (LAWS (SC) 1966
10 34 = AIR (SC) 1967 581) in support of the argument
that the second marriage would stand hit by Section 15 of
the Hindu Marriage Act. Another decision of the Apex
Court in Tejinder Kaur v. Gurmit Singh (LAWS (SC) 1988 2
85 = AIR (SC) 1988 839) was also placed in support of the
said argument.
2. The question came up for consideration is whether
the offence under Sections 494 and 114 IPC would stand
attracted when a second marriage was solemnized after the
decree of divorce of first marriage, but before the
culmination of its appeal and what would be the legal
CRL.MC NO. 2077 OF 2017 3
effect, when the appeal ended in dismissal confirming the
decree of divorce.
3. To resolve the issue, it is necessary to have a
better understanding of what actually amounts to the
offence of bigamy as engrafted under Section 494 IPC in
relation to Sections 15 and 17 of Hindu Marriage Act.
4. In order to constitute the offence under Section
494 IPC, it must be satisfied that (i) the accused must
have contracted first marriage (ii) he must have married
again (iii) the first marriage must be subsisting and
(iv) the spouse must be living ( Pashaura Singh v. State
of Punjab and Another (AIR 2010 (SC) 922 : 2009 AIR SCW
7226). Further, it is necessary that the second marriage
should be void by reason of its taking place during the
life-time of the first husband or wife (Gopal Lal v.
State of Rajasthan (AIR 1979 (SC)713 : 1979 Cri LJ 652)).
5. Section 15 of the Hindu Marriage Act after its
amendment deals with the stage in which a divorced person
can validly enter into a second marriage. It says that
after the decree of dissolving the marriage, either there
is no right of appeal against the decree or if there is
CRL.MC NO. 2077 OF 2017 4
such a right, 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
either of the party to the marriage to marry again.
Though, the section after its amendment worded in a
positive way specifying the time in which a second
marriage can validly be entered into, by either of the
parties to the marriage, in fact, a restriction is
engrafted against a second marriage during the
subsistence of first marriage. On the other hand,
Section 494 IPC is a provision fastening criminal
liability for the offence of bigamy, subject to the
exception incorporated therein. Section 17 of the Hindu
Marriage Act, 1955 says that any marriage between two
Hindus solemnized after the commencement of this Act is
void if at the date of such marriage either party had a
husband or wife living; and the provisions of sections
494 and 495 of the Indian Penal Code (45 of 1860) shall
apply accordingly.
6. In the instant case, the second marriage was
solemnized after the decree of divorce by the Family
Court, but during the pendency of an appeal and a stay
CRL.MC NO. 2077 OF 2017 5
order. But it is an admitted fact that the appeal ended
in dismissal subsequently confirming the decree of
divorce. Then the Doctrine of Merger would come into play
and the decree of the Family Court will stand merged in
the appellate decree. The decree would operate not from
the date of first appellate decree, but from the date of
decree of divorce granted by the Family Court. In other
words, the decree of divorce confirmed in appeal would
stand effective from the date of original decree of
divorce of the Family Court and the appellate decree will
revert back to the date of decree of divorce of the
Family Court. If that be so, on account of the
confirmation of decree of divorce in appeal, the first
marriage will stand dissolved from the date of decree of
Family Court and thereafter it cannot be said that there
exists a subsisting marriage relationship or a living
spouse for the purpose of Section 494 IPC. The legal
position settled in Chandra Mohini Srivastava's case and
Tejinder Kaur's case (supra) must be understood in
relation to Section 15 of the Hindu Marriage Act
governing validity of a second marriage. Section 15 does
not override Section 28 of the Hindu Marriage Act, which
CRL.MC NO. 2077 OF 2017 6
confers a right of appeal. In Section 15, three
situations alone were recognized i.e. (i) when there is
no right of appeal against the decree (ii) if there is
any right of appeal, the time for appealing has expired
without an appeal having been presented and (iii) an
appeal has been presented, but has been dismissed. The
Apex Court in Lila Gupta v. Laxmi Narain and Others (AIR
1978 SC 1351) held that the provision is directory and a
marriage in violation of the period mentioned therein is
not void, but voidable and hence no offence can be said
to have been committed under Section 494 IPC.
Necessarily, it must be understood that once the appeal
ended in dismissal confirming the decree of divorce of
the Family Court, it would come under the third limb of
Section 15 of the Act irrespective of the fact that the
marriage was solemnized either before the presentation of
appeal or before the culmination of appeal. The question
whether the second marriage was solemnized during the
pendency of the appeal against the decree of divorce or
before preferring an appeal within the time schedule
would pale into insignificance, when the decree of
divorce was confirmed in the appeal, which would revert
CRL.MC NO. 2077 OF 2017 7
back to the date of decree of divorce of Family Court and
hence the offence under Section 494 IPC will not stand
attracted.
7. The perfunctory offence alleged under Section
114 IPC will not stand attracted when the main substratum
under Section 494 IPC becomes inoperative and nonest.
Hence, the cognizance taken for the offence under Section
494, 114 r/w Section 34 IPC will not stand in the eye of
law and the same is liable to be quashed. I do so.
The Crl.M.C. will stand allowed accordingly.
Sd/-
P.SOMARAJAN
JUDGE
sv
CRL.MC NO. 2077 OF 2017 8
APPENDIX OF CRL.MC 2077/2017
PETITIONER'S ANNEXURES
ANNEXURE A1 TRUE COPY OF THE JUDGMENT IN O.P.1173/06 DT.
16.2.16.
ANNEXURE A2 TRUE COPY OF THE I.A.NO.2628/2012 IN MAT
APPEAL NO.173/2012.
ANNEXURE A3 TRUE COPY OF THE COUNTER FILED BY THE
PETITIONER IN I.A.NO.2628/2012 IN MAT APPEAL
NO.173/2012.
ANNEXURE A4 TRUE COPY OF THE ORDER DATED 20.11.2012 ON
THE FILE OF THE HON'BLE HIGH COURT OF KERALA
IN IA.2378/12 IN MAT APPEAL NO.173/2012.
ANNEXURE A5 TRUE COPY OF THE COMPLAINT NO.2105/13 FILED
BY 2ND RESPONDENT BEFORE THE JUDICIAL
MAGISTRATE COURT, CHAVAKKAD.
ANNEXURE A6 TRUE COPY OF THE JUDGMENT IN CC NO.412/2010
ON THE FILE OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT, CHAVAKKAD.
ANNEXURE A7 THE TRUE COPY OF THE JUDGMENT DATED
23/10/2019 ON THE FILES OF HON'BLE HIGH COURT
OF KERALA IN MAT.APPEAL NO.173/2012 AND IN
MAT.APPEAL NO.280/2012.
/TRUE COPY/
P.S. TO JUDGE
