Whether an appeal filed against a decree of divorce after the period of limitation be used as a ground to declare the second marriage of either of the spouses as null and void

Falgu Mukati | Pravin Gandhi College of Law | 24th February 2020

Krishnaveni Rai vs Pankaj Rai and Anr, Criminal Appeal NO. 321 OF 2020

Matter

In this case the appellant (i.e. Krishnaveni Rai) was married to Arvind Chenjee on or about 11.09.1989 in accordance with the Hindu rites and customs. Later the marriage was dissolved by a decree of divorce dated 28.06.2005. The period of limitation for filing an appeal against the decree of divorce expired on 26.09.2005. No appeal was filed either by the Appellant or by Arvind Chenjee, within the period of limitation. However, in August, 2006, almost a year after the expiry of the period of limitation an appeal had been filed by the appellant against the decree of divorce. The appeal was however dismissed. In 2006 Arvind Chenjee had remarried Shipra Chenjee. After almost 8-9 years of divorce the appellant remarried to Respondent no 1 (i.e. Pankaj Rai). However, this marriage too did not work. The appellant accused that Respondent no 1 (i.e. Pankaj Rai) subjected her to harassment and cruelty and even threw her out of the matrimonial home. The appellant thus, lodged a complaint against the respondent under Section 406, 498A and 500 of Indian Penal Code, 1860. Since the appellant did not have any independent source of income, she also filed an application under Section 125 of the Code of Criminal Procedure, claiming maintenance. Thus, respondent no 1 filed a suit for declaration of nullity of his marriage with the Appellant, 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.   

Appellant’s Contention

• It stated that the respondent filed a suit to declare his marriage with the appellant as null and void as a counterblast to the to the application for maintenance.
• It stated 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.
• It stated 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.

Respondent’s Contention

• It stated that since the marriage was solemnized during the pendency of the appeal against the decree of divorce, the said marriage was null and void.

Issues Raised

• The main issue raised in this case is that whether an appeal filed against a decree of divorce after the period of limitation be used as a ground to declare the second marriage of either of the spouse as null and void

Held

• The court has jurisdiction for determination of the appellant’s claim to maintenance.
• The appeal filed by the appellant against the decree of divorce is set aside by the court, and the appellant’s current appeal is allowed.
• The respondent no 1 must pay to the appellant a maintenance amount of Rs 20,000 per month and a lumpsum 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.