In a very recent judgement, the Kerala High Court presided over by Justice P. Somarajan, recently ruled that if a party enters into a second marriage while the appeal of the decree of divorce of the first marriage is still pending, he or she will not be guilty of bigamy under Section 494 of the Indian Penal Code if the appeal is later dismissed.
While granting the Petition, the bench stated, “Once the appeal ends in dismissal confirming the decree of divorce of the Family Court, it would come under the third limb of Section 15 of the Act, regardless of whether the marriage was solemnised before the presentation of the appeal or before the conclusion of the appeal.”
In this case, the woman claimed that her husband married again while the appeal against the divorce decree was pending.
As a result, the man was charged with violating Sections 494, 114, and 34 of the IPC after which the husband approached the court.
The petitioner’s second marriage took place after the Family Court issued a divorce decree, but while an appeal and a stay order were pending.
The current criminal miscellaneous petition was filed in accordance with Section 482 of the Criminal Procedure Code.
The court said that in order to constitute the offence the following statutory prerequisites are necessary :
(i) the accused must have had a first marriage;
(ii) he must have remarried.
(iii) the first marriage must still be active
(iv) the spouse must still be alive
The bench noted the dictum laid down in Gopal Lal v. State of Rajasthan [AIR 1979 (SC)713], which stated that a second marriage should be void because it occurred during the lifetime of the first husband or wife.
The Court also pointed out that the amended Section 15 of the Hindu Marriage Act addresses the stage at which a divorced person can legally enter into a second marriage.
It states that after the decree of dissolution of the marriage, either there is no right of appeal or, if there is, the time for appealing has expired without an appeal being presented or an appeal has been presented but has been dismissed, either of the parties to the marriage may marry again.
The court remarked that the decree would take effect not from the date of the first appellate decree, but from the date of the Family Court’s divorce decree. In other words, the decree of divorce confirmed in appeal would be effective from the date of the Family Court’s original decree of divorce, and the appellate decree would revert back to the date of the Family Court’s decree of divorce.
