Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai*, JJ., upheld the impugned judgment of the High Court wherein the High Court had granted property rights to the step children of the deceased in her mehar property by declaring the mehar deed as unenforceable for being nominal.

The Disputed Family History

  • The parties have claimed through Mohiyuddin Pasha. According to the plaintiffs, Mohiyuddin Pasha had earlier married Noorbi and out of the said wedlock, two sons namely Rahaman Barid and Azgar Barid, the appellant herein were born.
  • Rahaman Barid was married to Rahamathunnisa plaintiff 1 and out of the said wedlock, plaintiff 2 was born.
  • Rahaman Barid died in 1945 i.e. prior to Mohiyuddin Pasha, who died in 1964.
  • After the death of Noorbi in 1944, Mohiyuddin Pasha married Mazambi, plaintiff 3 and had five children out of said wedlock, namely plaintiff 4 to 8.

Issue before the Court

The appellant contended that plaintiff 1 and 2 i.e. wife and daughter respectively, of Rahaman Barid were not entitled to any share in the suit schedule properties inasmuch as Rahaman Barid had died in 1944 i.e. prior to Mohiyuddin Pasha, who died in 1964. Further, he denied that plaintiff 3 was married to Mohiyuddin Pasha and that plaintiff 4 to 8 were children of Mohiyuddin Pasha. The appellant also contended that Mohiyuddin Pasha had executed a Mehar Deed in favour of his first wife Noorbi, which was registered on 30-07-1936, and as such, the said properties ceased to be the properties of Mohiyuddin Pasha.

Analysis and Findings

The High Court found that the voluminous documents of evidence; namely birth certificates of plaintiffs 4 to 8, the transfer certificates issued by the Government Higher Primary School established that plaintiffs 4 to 8 were the children born to Mohiyuddin Pasha through Mazambi. With regard to Mehar Deed, the High Court opined that it was a nominal one and was not acted upon as in an earlier suit for partition i.e. O.S. No.514 of 1961, the deceased Mohiyuddin himself had pleaded that the first son of Noorbi and Mohiyuddin Pasha, namely Rahaman Barid, was demanding separate share in the properties and was residing separately and it was to avoid any share in the suit schedule properties the Mehar Deed was created in favour of his first wife Noorbi.

Hence, the High Court reversed the findings of the Appellate Court that plaintiff 3 was not married to Mohiyuddin Pasha for being erroneous in law, the High Court had relied on the oral as well as the documentary evidence specifically the evidence of Noorbi’ brother who had admitted existence of second marriage. Consequently, the High Court vide held that all the suit schedule properties were required to be divided amongst appellant and plaintiffs 3 to 8. However, it was held that plaintiffs 1 and 2 were not entitled for any share in the suit schedule properties as Rehaman Barid, husband of plaintiff 1 and father of plaintiff 2 predeceased the propositus i.e., Mohiyuddin Pasha.

In the light of the above and considering the records available and reasoning behind the impugned judgment of the High Court, the Bench opined that the High Court had rightly interfered with the findings as recorded by the First Appellate Court, inasmuch as the First Appellate Court was not justified in reversing the findings of the Trial Court in that regard which were based on proper appreciation of evidence.

[Azgar Barid v. Mazambi, 2022 SCC OnLine SC 212, decided on 21-02-2022]

*Judgment by: Justice B.R. Gavai

Appearance by:

For the Appellant: Naresh Kaushik, Advocate

For the Respondents: Girish Ananthamurthy, Advocate

Kamini Sharma, Editorial Assistant has put this report together


Case BriefsSupreme Court

Supreme Court: While deciding a case of a matrimonial dispute where the marriage never took off from the first day and was never consummated and the parties had been living separately from the date of marriage for almost 20 years, a Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. passed a decree of divorce in favour of the husband on account of irretrievable breakdown of marriage as well as on account of cruelty committed by the wife.


It appeared that the appellant-husband and respondent-wife had a crash landing at the take-off stage itself. The appellant claimed that the respondent’s view was that she had been coerced into marrying the appellant without giving her consent and left the marriage hall at night. An endeavor by the relatives of the appellant to persuade her on the very next day to live with appellant was also not fruitful. The marriage was never consummated. In such view, the appellant issued a notice seeking divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act.

Respondent filed a petition for restitution of conjugal rights soon after the issuance of the notice. She submitted that it was the appellant who refused to cohabit with her, since her family was unable to fulfil the appellant’s demand for dowry.

After 5 years, the decree of divorce on the ground of irretrievable breakdown of marriage was granted by the trial court and after 6 days of the said decision, appellant got married the second time. The respondent preferred the appeal and the appellate Court set aside the decree of divorce while allowing the petition for restitution of conjugal rights. Thereafter, the High Court restored the decree of divorce granted by the trial court and each stage of scrutiny took 5 years, and 15 years passed in the litigation. This inter alia posed a question mark on status of second marriage of the appellant.

Later, the respondent filed a review petition on the ground that it was not within the jurisdiction of the High Court or trial court to grant a decree of divorce on the ground of irretrievable breakdown of marriage. The review petition was allowed and the same was assailed in the present appeal.

Analysis, Law and Decision

Supreme Court noted that the ground of irretrievable breakdown of marriage does not exist as a ground of divorce under the Hindu Marriage Act. The Bench referred to several judicial precedents including Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, which opined that courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage, all efforts have been made in that regard, the court is convinced beyond any doubt that there is actually no chance of the marriage surviving, and it is broken beyond repair. The Bench expressed:

“… Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation …”

Incidental question in the present matter was, whether the respondent’s conduct after the initial trigger for divorce amounted to mental cruelty?

Respondent after succeeding before the appellate court lodged a criminal complaint against the appellant under Section 494 of Penal Code, 1860 even though an appeal was pending before the High Court. There were episodes of further harassment by the respondent even at the workplace of the appellant including insulting the appellant in front of students and professors. The respondent also threatened the appellant of physical harm in front of his colleagues.

Supreme Court held that the continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the trial court. It was observed:

“The marriage having not taken off from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant.”

The Court was of the opinion that both the grounds of irretrievable breakdown of marriage and cruelty would favour the grant of decree of divorce in favour of the appellant. Hence, a decree of divorce dissolving the marriage between the parties be passed not only in exercise of powers under Article 142 of the Constitution of India on account of irretrievable breakdown of marriage, but also on account of cruelty under Section 13(1)(i-a) of the Act in light of the subsequent conduct of the respondent during the pendency of judicial proceedings at various stages.

In view of the above discussion, decree of divorce was passed and the marriage stood dissolved. [Sivasankaran v. Sathimeenal, 2021 SCC OnLine SC 702, decided on 13-09-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ. addressed whether prior to the decision on divorce petition, creating a matrimonial profile expressing the will and consent, would be a ground for divorce.

Factual Background

Respondent and appellant started developing discord in their relations.

Appellant submitted that, after some time in the company of the respondent he found that by nature she was aggressive and would speak utter lies and had an extreme affinity towards her parents and particularly for parents’ residence.

Further, it was also added that the respondent would insist the appellant leave the job and shift to Akola with her and take some new assignment.

The job of the appellant was a permanent job in the High Court. He, therefore, did not agree with the suggestions made by the respondent to quit the job. According to the appellant, this was the trigger point to escalate the conflict between him and the respondent.

Questions for determination 

  • Whether the appellant has proved that the respondent after the solemnization of their marriage had treated him with cruelty?
  • Whether the Judgment and decree passed by the learned Judge of the Family Court rejecting the decree of divorce is sustainable?

Appellant’s Advocate submitted that the arrogant and cantankerous nature of the respondent not only made the life of the appellant miserable but also made the life of his parents miserable.

Further, during the pendency of the petition, the respondent had made her intention of parting ways with the appellant clear, by uploading her profile on two marriage bureau websites.

Respondent had made her intention writ large to get rid of the appellant and begin her life afresh with someone else.

Analysis, Law and Decision

In the decision of Supreme Court in Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640, it was held that false allegation by one spouse against the other amounts to mental cruelty, It is held that mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society and also depends upon the status of the person.

In another decision, of Supreme Court in Vishwanath v. Sarla Vishwanath Agrawal, Civil Appeal No. 4905 of 2020, it was held that the mental torture caused by one spouse to the another by making wild and false allegations in a report lodged to the authority as well as in the electronic and print media constitute mental cruelty and as such the ground for divorce.

The decision of V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, had considered as to what constitute mental cruelty and what should be the parameters while deciding the cruelty.

Family Court had found that the appellant established the case of cruelty at the hands of respondent in as much as the respondent made unfounded and unsupported allegations against the appellant. Despite the said finding of fact, Judge did not deem it appropriate to grant a divorce decree.

Bench stated that on a plain reading of Section 14 Court has no reason to reject the submissions advanced by the Advocate for the appellant.

In Court’s opinion, the documents produced on record in the form of matrimonial profile uploaded by the respondent on 22-10-2020 can be taken into consideration for deciding the question in controversy in this appeal.

Further, the High Court expressed that on perusal of matrimonial profile uploaded by the appellant it would show that even before decision in the divorce petition she had made up her mind to perform the second marriage. In the said profile she had clearly mentioned that she was awaiting the divorce in pending case.

“…respondent by uploading her profile on two matrimonial websites made her intention writ large.”

In view of the above document, it was inferred that she wanted to get rid of the appellant and wanted to perform the second marriage.

Adding to the above, Court stated that in the written statement, respondent contended that as an obedient wife and daughter-in-law she performed her duties sincerely, but the appellant and his parents did not like her and wanted to get rid of her from the life of the appellant.

In Court’s view, the above statement in the written statement if read in the context of the documents would seriously reflect upon the conduct of the respondent.

Appellant in his evidence stated that due to the false and frivolous complaints and reports made by the respondent to the various authorities, she has caused immense mental stress, depression, pain and agony to him and his parents.

High Court opined that if the Judge of the Family Court had taken into consideration the documents produced on record before Judgment, whereby the respondent had uploaded her marriage profile on two websites, the learned Judge would not have recorded such a finding.

Emphasizing that the evidence clearly indicated that the respondent had no wish and desire to remain in company of the appellant.

If the respondent had sincere wish and desire to save her marriage she would not have taken a conscious decision to perform the second marriage even before the final outcome of the divorce petition.

Further, it was proved that the mental cruelty was such that it would in all probability cause injury to the health of the appellant.

 “…conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights.”

 Appellant successfully made out the case that he was made to suffer mental cruelty of a high degree and therefore, he took a conscious decision to get separated.

Hence, family court appeal was allowed.

Hindu Marriage Petition filed by the appellant is allowed. It was declared that the marriage between the appellant and the respondent is dissolved by decree of divorce on the ground of cruelty. [Premdeep v. Bhavana, Family Court Appeal No. 24 of 2020, decided on 27-8-2021]

Advocates before the Court:

Shri Hemant Surve, Advocate for appellant

None for the respondent

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., expressed while addressing the present application that,

“Second marriage cannot come within the definition of domestic violence.”

By the instant application, applicants sought quashing of criminal proceedings filed by sole respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005.

Further, the applicants also prayed for setting aside the orders passed by the Court of Judicial Magistrate.

Applicant 1 got married to the sole respondent and soon after the marriage, there was matrimonial discord between the two, because of which, applicant 1 filed a divorce proceeding on the ground of cruelty.

The divorce decree granted was confirmed upto the Supreme Court and the rejection of the application for restitution of conjugal rights filed by the respondent also stood confirmed.

Bench stated that the contentions raised on behalf of applicant 1 on ground of cruelty were accepted by all the Courts and hence the said findings attained finality.

Question for consideration:

  • Whether respondent is entitled to rely upon incidents pertaining to the same time period and relatable to the allegation and contentions raised to claim that she had suffered domestic violence at the hands of the applicants, as defined under the DV Act.
  • Whether the act of applicant 1 preforming a second marriage after the grant of divorce decree can be said to be an act of domestic violence under the provisions of the DV Act?
  • Whether the proceedings initiated by respondent under provisions of the DV Act can be said to be an abuse of process of law?

Analysis, Law and Decision

High Court stated that on perusal of Sections 12 to 23 of the D.V. Act, respondent has indeed raised the very issues and contentions that she had relied upon during the initial round of litigation pertaining to the divorce petition filed by applicant 1 and application or restitution of conjugal rights filed by respondent.

Hence, respondent cannot be permitted to reiterate the same by filing application under the provisions of the DV Act, 3 months after the Supreme Court dismissed her Special Leave Petition and confirmed the findings rendered by the Family Court and this Court on identical issues.

Second Marriage

 Court rejected the contention that the second marriage performed by applicant 1, after grant of divorce decree amounted to domestic violence.

Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

Family Court granted divorce on the ground of cruelty cannot eb denied in the present matter.

Merely because applicant 1 performed second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act.

The manner in which the proceedings were sought to be initiated under the provisions of DV Act was nothing but an abuse of process of law.

Court noted that the respondent appeared to be interested in initiating and continuing the proceedings as a tool of harassment against the applicants.

Prayers pertaining to monthly maintenance, compensation, residence order, etc., have all been made of the contentions raised in the earlier round of litigation.

In view of the above background, High Court held that continuance of the proceedings would amount to permitting abuse of the process of law, hence the same cannot be permitted. [Bhushan v. Nilesha Bhushan Deshmukh, Criminal Application (APL) No. 164 of 2017, decided on 9-08-2021]

Advocates before the Court:

S.A. Mohta, Advocate for applicants

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J., inter alia, reversed the conviction of the second wife (of the husband of the complainant-first wife) for abetting the offence under Section 494 IPC.

Criminal Appeal was preferred against the Judgment of conviction and order of sentence passed by the Judicial Magistrate, 1st Class.

Prosecution case was based on a complaint petition wherein it was alleged inter alia that the marriage of the complainant was solemnized with the petitioner and after the marriage, she went to her matrimonial house. Complainant’s mother-in-law and her husband were not happy with the articles demanded due to which they tortured the complainant physically and mentally adding to this, she was also not provided with food.

Petitioner solemnized second marriage with Deoki Devi, thereafter also the complainant stayed at the matrimonial house and gave birth to a son. Complainant’s son was snatched away from her along with all her ornaments and thrown out of the house. Complainant came to her parental house after which the Chief Judicial Magistrate took cognizance.

Prima Facie case under Section 498-A Penal Code, 1860 was made out against the petitioners and further prima facie case under Section 494 of IPC against Mohan Mahto (Complainant’s Husband) was made out.

Court’s Analysis

Bench found that the Lower Appellate Court wrongly recorded that the trial court had convicted Mohan Mahto, Chundri Devi and Deoki Devi for offence under Section 498 A and 323 IPC. Trial Court’s judgment reflected that the learned trial court had convicted Mohan Mahto and Chundri Devi under Section 498A and 323 IPC but Deoki Devi was not convicted under Section 498A of IPC.

Bench noted that there has been consistent evidence on record against the present petitioners who happen to be the husband, and in-laws of the complainant and petitioner Deoki Devi who is the second wife of the petitioner Mohan Mahto regarding physical and mental torture along with demand of dowry, she was thrown out of her matrimonial house with her only son.

Court in view of the above-stated facts and circumstances stated that the family members of the complainant from the side of the in-laws of the complainant have been rightly convicted by the trial court under Section 498A/323 IPC. Petitioner – Deoki Devi has rightly not been convicted under Section 323 IPC only as she was the second wife of the petitioner.

Since the petitioner solemnized to second marriage during the lifetime of his first wife, the complainant, his conviction under Section 494 IPC was upheld.

So far as the conviction of Deoki Devi was concerned under Section 494/109 IPC, Court found that the Complainant Witnesses did not speak a word regarding her role in abetting the offence of second marriage. Though allegations in abetment of second marriage were made against the mother-in-law, father-in-law as well as the father and brother of Deoki Devi, but nothing was said about the role of Deoki Devi nor has imparted any knowledge on the part of Deoki Devi prior to her marriage with Mohan Mahto, that Mohan Mahto was already married.

Court held that the essential ingredient to instigate the petitioner-Mohan Mahto to solemnize second marriage with petitioner -Deoki Devi on her part is wholly lacking in the records of the case. Thus, the finding of the trial court, upheld by the appellate court, holding that Deoki Devi knowingly married the accused Mohan Mahto who was already married, and consequent conviction of petitioner -Deoki Devi for abetment of offence under Section 494 IPC committed by Mohan Mahto, is ex facie perverse, based on no evidence against Deoki Devi.

Further, the Bench found that the Complaint case was filed in the year 2009 and the petitioners namely, Deoki Devi and Chundri Devi have faced the rigours of the trial for 11 years and they have no criminal antecedents and both are females having children

Considering the aforesaid facts and circumstances of the case, this Court is of the view that the ends of justice would be served, if the sentences of the petitioner — Chundri Devi is modified to the period already undergone by her. [Chundri Devi v. State of Jharkhand,  2021 SCC OnLine Jhar 20, decided on 04-01-2021]

Case BriefsHigh Courts

Allahabad High Court: Sudhir Agarwal, J., found a government servant to be guilty of the offence of bigamy.

The instant petition was filed against the decision passed by the Senior Superintendent of Police, Agra dismissing the petitioner from the post of Fireman and therefore mandamus was sought to direct respondent not to interfere in working of the petitioner as a fireman and to pay his full salary for the period of suspension.

Another challenged placed by the petitioner was with regard to the validity of Rule 29 of the U.P. Government Servants Conduct Rules, 1956, claiming the same to be unconstitutional.

Factual matrix

Petitioners wife i.e. respondent 5 had alleged him of bigamy since he had married another woman.

Petitioner submitted that respondent 5 was married to his maternal uncle and after his death, she started living with an elder maternal uncle from whom she conceived a child also. She has also been receiving the pension of his maternal uncle. Further, he added that there is no relationship between husband and wife with respondent 5 and on the other hand he married Anita Yadav in the presence of all relatives and friends.

Further, the petitioner added that respondent 5’s motive and the intent was only to extract some monetary benefits from him.

In view of respondent 5’s complaint, petitioner was suspended.

Chief Fire Officer, Agra in his report submitted that there was no evidence of respondent 5’s marriage with the petitioner. However, both were living together and their relationship resulted in the birth of a child.

S.P. City Agra in his report submitted that respondent 5 and the petitioner were married. In 1994, petitioner without respondent 5’s knowledge solemnised the second marriage. Respondent 5 on knowing the said fact took various legal steps and also filed maintenance applications, wherein she was awarded the same by Additional Chief Judicial Magistrate.

Thereafter, a regular disciplinary proceeding was initiated against the petitioner under the U.P. Subordinate Police Officers (Punishment and Appeal) Rule, 1991, after the enquiry was completed, petitioner was held guilty of bigamy and, therefore, guilty of misconduct under Rule 29 of Conduct Rules, 1956.

Disciplinary Authority in light of the above-stated passed the impugned order of dismissal.

Analysis and Decision

Judicial Review

Bench observed that in the cases pertaining to the disciplinary enquiry, the scope of judicial review is very limited and is confined to the extent of decision-making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of malafide, bias or in violation of natural justice, or in case it can be shown that the findings recorded in the disciplinary proceedings are based on no evidence at all.

With regard to the contention that the charge of bigamy is false and there is no proof or evidence showing the valid marriage of the petitioner with respondent 5 i.e. Munni Devi, counsel for the petitioner submitted that there was no evidence of solemnization of marriage between the petitioner and Munni Devi who claimed to be his legally wedded first wife. It is also submitted that assuming that the petitioner and Munni Devi were living together and maintaining a relationship of husband and wife, yet in the absence of any proof of solemnization of marriage it cannot be held that the petitioner was guilty of bigamy and therefore violated Rule 29 of the Conduct Rules.

A very significant observation made by the Court was that,

Admittedly there was no evidence showing solemnization of marriage with Hindu rituals but there was evidence that petitioner and Munni Devi married in Court, blessed with a daughter out of their relationship of living together as husband and wife and in various documents Munni Devi was shown as the wife of the petitioner.

In these circumstances, Bench stated that it cannot be stated that the findings recorded by the Enquiry Officer and accepted by the Disciplinary enquiry that the petitioner was guilty of bigamy are based on no evidence at all. The evidence of a marriage between the petitioner and Munni Devi does exist and the sufficiency or adequacy thereof is not within the realm of judicial review of this Court.

Court cited the decision of Supreme Court, R.S. Saini v. State of Punjab, (1999) 8 SCC 90, wherein it was held that the standard of proof required in disciplinary proceedings is that of the preponderance of probability and where there is some relevant material which the competent authority has accepted and such material if can reasonably support the conclusion drawn by the disciplinary authority regarding the guilt of the employee, the court will not reappreciate such evidence to arrive at a different conclusion since the question of adequacy or reliability of evidence can not be canvassed before the court.

In Bombay High Court’s decision of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, it was held that the disciplinary authority, is the sole judge of the facts if the enquiry has been properly conducted. If there is some evidence on which the findings can be based then adequacy or even reliability of that evidence is not a matter to be canvassed before the Court

Hence, in view of the above discussion, petitioners contention that he was not guilty of bigamy was not accepted.

The validity of Rule 29 of the Conduct Rules

Petitioner contended that Rule 29 is arbitrary, unjust and illegal, no guidelines have been given as to when the permission will be granted for the purpose of second marriage under the proviso to the said rule and therefore, it is ultra vires.

Bench found the above-stated submission to be wholly baseless and misconceived.

No law, custom or practice has been brought to the notice of the Court showing that solemnizing more than one marriage is necessary religious or otherwise activity.

Decades ago people used to marry more than once inspite of having spouse living. It is said that in Muslim Personal Law, marriage with four women is permissible.

However, to the knowledge of the court, no personal law maintains or dictates it as a duty to perform more than one marriage.

No religious or other authority has been brought to Court’s notice providing that marrying more than one woman is a necessary religious sanction and any law providing otherwise or prohibiting bigamy or polygamy would be irreligious or offence the dictates of the religion.

Polygamy cannot be said to be an integral part of any religious activity, may be Hindu, Muslim or any other religion.

A distinction has to be drawn between religious faith, belief and religious practices. Even Article 25 of the Constitution guarantees only the religious faith and belief and not the religious practices which if run counter to public order or health or policy of social welfare which the state has embarked, then the religious practices must give way before the good of the people of the state as a whole.

Bench also observed that various statutes have prohibited both bigamy and polygamy.

A Division Bench of this Court also considered the validity of Rule 27 of the U.P. Government Servant (Conduct) Rules (old) prohibiting bigamy in the case of Ram Prasad Seth v. State of Uttar Pradesh, 1960 SCC OnLine All 128 and the  Court observed that there is no law, making it necessary to solemnize a second marriage. It was held that even under the Hindu religious belief marrying a second wife in order to obtain a son when the first wife can not provide one was only a practice followed by the people and not a sanction or mandate of law.

In view of the above discussion, the Court held that Rule 29 cannot be said to be non-arbitrary or illegal and ultra vires.

Concluding with its decision, Bench held that

In any country where bigamy is an offence, a government servant guilty of committing an offence cannot ask to continue in service after award of the minor or lesser punishment.

In view of the above, petition was dismissed. [Veerpal Singh v. SSP, Agra, 2006 SCC OnLine All 1628, decided on 18-05-2006]

Read more:

Bigamy [S. 494 IPC, S. 17 Hindu Marriage Act]

Case BriefsHigh Courts

Madras High Court: RMT. Teeka Raman, J., while addressing a petition observed that,

“A plea of customary divorce is a valid defence in departmental proceedings initiated for the misconduct of bigamy under Service Rules/Conduct Rules.”

The instant petition was sought to set aside the punishment order imposed in proceedings under Rule 3(b) Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955.

Petitioner, during his service, married a staff nurse and has two children. Later, in 2007, the petitioner during his service married a Woman Sub Inspector of Police and had two children with her as well.

Grave Misconduct

Petitioner’s grave misconduct was having married Woman Sub Inspector of Police while his first wife was living with two children and thereby violating Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officer’s Conduct Rules, 1964.

Charge Memo

In view of the above-stated act, a charge memo was issued under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D&A) Rules, 1955.

The Oral Enquiry Officer held the charge against the petitioner.

Deputy Inspector General of Police also arrived at the conclusion that the petitioner violated Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officers’ Conduct Rules, 1964 and awarded the petitioner a punishment of “Reduction in rank by the stage from the post of Head Constable to Gr.I PC for a period of two years to be spent on duty from the date of receipt of the order”.

Senior Counsel, Veera Kathiravan submitted that there was a customary divorce between the petitioner and his first wife and subsequently the petitioner married the widow Woman Sub-Inspector of Police and hence he did not violate any rules.

Analysis & Decision

Crux of the charge framed against the petitioner was that the delinquent was reprehensible conduct in having married the Woman Sub-Inspector of Police when his first wife was living and thereby violating the Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officers’ Conduct Rules 1964 and tarnished the image of Police Force.

Hindu Marriage Act

Bench stated that after the coming into force of the Hindu Marriage Act, 1955, an end to marriage can be sought by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in Section II or to dissolve the marriage between them on any of the grounds mentioned in Section 13 of the Act. While, Section 29 of the Act saves the rights recognized by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnized before or after the commencement of the Act.

Authorities have established that the prevalence of customary divorce in the community to which parties belong, contrary to the general law of divorce must be specifically pleaded and established by the person propounding such custom.

Core question to be decided in the present matter was whether the plea of customary divorce is a valid defence in the departmental proceedings initiated for action of bigamy as defined in Section 3(b) of the Tamil Nadu Police Rules?

Bench noted the statement of the first wife that due to misunderstandings between the couple, as per the custom prevailing in the community, there was a customary divorce.

Customary Divorce

Hence, the plea raised by the delinquent about the prevalence of customary divorce in their community which was pleaded by the petitioner and the same was accepted by none other than the first wife herself only after the dissolution of the first marriage, he contracted the second marriage.

Court concluded its decision as follows:

  • Disciplinary Proceedings can be initiated even if the second marriage is contracted with the knowledge of the first wife so also even if the first wife does not prosecute the husband for the same and hence the complaint given by the third party alleging contract of the second marriage, departmental proceedings can still be maintainable.
  • A plea of customary divorce is a valid defence in departmental proceedings initiated for the misconduct of bigamy under Service Rules/Conduct Rules.
  • To substantiate plea of customary divorce a specific plea has to be raised in the statement of defence by the delinquent officer and has to be proved on up to the decree of the preponderance of probability and execution of the customary divorce as projected by the delinquent.

Hence, in view of the above, the petition was allowed and the punishment was set aside. [Sudalaimai v. Deputy Inspector General of Police, WP (MD) No. 17504 of 2014, decided on 09-09-2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Krishna S. Dixit and P. Krishna Bhat, JJ., held that,

“Though contracting a second marriage by a Muslim may be lawful, but it more often than not causes enormous cruelty to the first wife justifying her claim for divorce.”

The present appeal calls in question the Judgment and Decree whereby Family Court had dissolved the marriage between the husband and wife (respondent).

Brief Facts

Both the appellant and the respondent are Sunni Muslims. Respondent had filed a suit seeking a decree for dissolution of marriage on the grounds of cruelty and desertion alleging that she and her parents were manhandled by the appellant and his parents without any justification.

Further appellant contracted a second marriage with another lady when the respondent was carrying and that he had begotten a child from the said lady.

Appellant while defending the suit claim in addition to seeking a decree for the restitution of conjugal rights contending that he had always loved the respondent and contracted for the second marriage only because of the pressured mounted by his parents.

It was also added that Sheriat permits a Mohammaden to contract plural wives and such a conduct per se does not amount to cruelty, nor constitute a ground for opposing restitution of conjugal rights.

Analysis and Decision

Bench on perusal of the facts and submission declined to interfere in the matter.

The fact that the respondent-wife and her parents were manhandled by the husband’s parents has been supported by the evidentiary material and the very admission of the appellant himself.

It is a bounden duty of every husband to protect his wife in any circumstances.

In the present matter, what acts the appellant did, to protect his wife from the onslaught of his parents is neither pleaded nor proved; the contention that his parents are very influential & powerful is too feeble a justification for allowing the poor wife to be tortured.

“…institution of marriage is founded inter alia on the mutual support and security of spouses; if the husband fails to protect his wife from his own violent parents, the very trust of the wife is shaken and therefore she is entitled to oppose restitution of conjugal rights, lest she should undergo the same ill-treatment.”

Act of Second Marriage | Sheriat 

Further, the Court added that it is a matter of common knowledge that, women regardless of their religion and socio-economic conditions, detest their husbands contracting a second marriage; therefore, the proof of consent requires cogent evidence which is militantly lacking in this case.

Appellant’s plea that the Sheriat permits a Muslim to contract in marriage plural wives, may be legally true. Kerala High Court’s decision in Shahulameedu v. Subaida Beevi, 1970 K.L.T 4 has observed the right of a Muslim to practise polygamy under the Sheriat.

Section 2 of the Muslim Marriages Act, 1939 recognizes the ‘cruelty of conduct’ of the husband as a ground for the dissolution of marriage at the instance of aggrieved ‘woman married under Muslim law’.

Marital Cruelty

Courts have emphasised that in the backdrop of spousal relationship, words, acts or conduct constituting cruelty are infinitely variable with the increasing complexities of modern life; no attempt at defining cruelty is likely to succeed, fully; merely because an act is lawful, it does not per se become justifiable in married life.

Though contracting a second marriage by a Muslim may be lawful, but it more often than not causes enormous cruelty to the first wife justifying her claim for divorce.

Privy Council in Moonshee Bazloor Ruheem v. Shamsunnissa Begum, (11 MIA 551) observed with regard to marital cruelty that,

“Indian law does not recognize various types of cruelty such as ‘Muslim’ cruelty, ‘Christian’ cruelty, ‘Jewish’ cruelty, and so on, and the test of cruelty is based on the universal and humanitarian standards, that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health. The onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first, and in the absence of cogent explanation the Court will presume under modern conditions that the action of the husband in taking a second wife involved cruelty to the first, and it would be inequitable for the Court to compel her against her wishes to live with such a husband.”

Hence, in view of the above circumstances, the present appeal lacks merits and is liable to be rejected. [Yusufpatel v. Ramjanbi, MFA No. 201154 of 2018 (FC), decided on 17-08-2020]

Case BriefsHigh Courts

Bombay High Court: A.S. Kilor, J., held that contravention of the provision of Section 15 of the Hindu Marriage Act, 1955 does not amount to willful disobedience of ‘other process of a Court’ under the provisions of the Contempt of Court Act, 1971.

Willful Disobedience

The petitioner sought action under Section 12(3) of the Contempt of Court Act, 1971 against the respondent for alleged willful disobedience of ‘other process of a Court’ by performing marriage in contravention of the provision of Section 15 of the Hindu Marriage Act, 1955.


Respondent preferred a petition under Section 13 of the Act, 1955 against the petitioner for dissolution of marriage on the ground of cruelty and desertion.

Civil Judge had dismissed the petition holding that the respondent failed to prove cruelty and desertion.

Decree of Divorce

The respondent questioned the Judgment and decree which was allowed and thereby declared the marriage between the petitioner and respondent stands dissolved by a decree of divorce.

Petitioner filed the second appeal which is pending before the Court.

While the appeal was in pendency, the contempt petition had been filed alleging that the respondent had performed second marriage in contravention of the mandate of the provision of Section 15 of the Act, 1995 which is willful disobedience of ‘other process of a Court’ as provided by Section 1(b) of the Act, 1971.

Counsel for the petitioner, T.G. Bansod and S.S. Jagtap Counsel for the respondent.

Bench considered the following questions:

“(i) Whether the performance of second marriage by the respondent on 20-03-2016 during the pendency of appeal is unlawful in view of prohibition stipulated under Section 15 of the Act, 1955, and if yes ?

(ii) Whether contravention of Section 15 of the Act, 1955 amounts to willful disobedience of ‘other process of a Court’ as provided in Section 2(b) of the Act of 1971 ?”

Court referred to Section 15 of the Hindu Marriage Act, 1955, which reads as follows:

“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.”

High Court noted that the respondent ignored the prohibition and performed the second marriage under an incapacity to marry, stipulated under Section 15 of the Act, 1955.

Ejusdem Generis

Further, to find out the import of the expression ‘other process of a court’ which is a general term, the principle of Ejusdem Generis would be helpful to apply, in the present matter.

Civil Contempt — Section 2(b) of the Contempt Act, 1971

“Civil contempt means willful disobedience to any judgments, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court.”

The expression ‘willful disobedience of process of a Court’ used under Section 2 (b) of the Act, 1971, must also be related to the disobedience of some command issued by the Court during the process of a Court which includes various stages between the filing of any proceeding to a final decision by the Court.

Bench stated that at any stretch of imagination it cannot be said that contravention of the provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

High Court in view of the above held that during the pendency of the appeal, the performance of second marriage would be a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

No Civil Contempt

In view of the observations laid above, Court stated that the second marriage performed by the respondent in contravention of Section 15 of the Act, 1955 would not fall within the purview of clause (b) of Section 2 of the Act, 1971 and hence no civil contempt has been committed.

Accordingly, the contempt petition was dismissed. [Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLine Bom 911, decided on 08-09-2020]

Case BriefsHigh Courts

Patna High Court: A Division Bench of Hemant Kumar Srivastava and Prabhat Kumar Singh, JJ. rejected a letters patent appeal on the admission stage itself to be allowed to solemnize the second marriage during the subsistence of the first marriage and found it being having no merits to stand.

In the instant case, the appellant married his second wife during the lifetime of his first wife. When a departmental proceeding was initiated against him, he produced forged documents. Further, he was dismissed from service. Consequently, he challenged it. Later not only his appeal against the dismissal order but also its further revision against it was also dismissed by a Single Judge Bench.

The counsel for the appellant, Arun Kumar pled that the appellant solemnized his second marriage with Sunita Upadhayay (second wife) with the permission and consent of his first wife which the Disciplinary Authority and the Single Judge Bench failed to take into consideration.

The respondent’s counsel, Manoj Kumar Singh contended that the aforesaid authorities had considered all the aspects of the matter. Moreover the appellant was also charged for forgery.

In view of the above, the Court opined that the Single Judge Bench had discussed the case in detail and passed the impugned judgment. It observed that even if the first wife consented to the appellant’s marriage, it gave no right to the appellant to solemnize his second marriage. Moreover, the appellant failed to prove any violation of natural justice or any violation of rules. Further, the said factual aspect could not be looked into this Letters Patent Appeal. In view thereof, the appeal was dismissed.[Binod Kumar Singh v. Union of India, 2019 SCC OnLine Pat 2363, dated on 02-12-2019]

Case BriefsHigh Courts

Patna High Court: The Three-Judge Bench of Ashwani Kumar Singh, Birendra Kumar and Anil Kumar Upadhyay, JJ. disposed of an appeal arising out of a reference made by the Division Bench of this Court, in view of conflicting judgments on the aspect of maintainability of a claim for compassionate appointment of a child born from the second marriage of deceased employee, while the first marriage is subsisting.

A circular issued in 2005 under by the Personnel and Administrative Reforms Department of Government of Bihar declared that if a government servant marries while earlier marriage is subsisting, without the permission of the government, then such spouse and the ward of such spouse would be disentitled for appointment on compassionate ground. In a petition filed before this Court, the learned Single Judge quashed the said circular and directed the petitioner authority to appoint minor-respondent herein (whose father died in harness and who was the son of deceased’s second wife) on compassionate grounds. 

The Court relied on Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097 where the right to compassionate appointment to child of second marriage was acknowledged under Section 16(1) and 16(3) of the Hindu Marriage Act, 1955 (HMA); and where it was held that while designing a policy of compassionate appointment, State can prescribe the terms on which it can be granted. However, while making a scheme/ rule, State could not lay down conditions inconsistent with Article 14 of the Constitution of India.

It was opined that once Section 16 of HMA regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, the State could not exclude such a child from seeking the benefit of compassionate appointment. An employer, who is amenable to Part III of the Constitution, could not deny the benefit of compassionate appointment available to other legitimate children. Such a condition of exclusion would be arbitrary and ultra vires as it would bring out unconstitutional discrimination between legitimate children, who form one class.

If a government servant performs the second marriage, it would amount to misconduct committed in service. In such a case, if he is proceeded against for such misconduct while in service and misconduct is proved, the government may be free to take any action against such employee and the same may be a relevant consideration for denying the prayer for compassionate appointment of dependents of the deceased employee. However, if no disciplinary proceeding is initiated for any misconduct against an employee while in service; after his death, his dependents cannot be denied compassionate appointment on the ground that while in service, the employee had been guilty of misconduct.

It was observed that appointment on compassionate ground is not a source of recruitment but an exception to the general rule, the purpose of which is to prevent destitution and penury in the family of a deceased employee. Application for compassionate appointment must be decided on facts of each individual case. Therefore, the impugned order was modified and the subject circular was quashed to the extent it prevented children of the second wife from being considered for appointment on the compassionate ground; with a direction to the appellant to consider the claim of the respondent for appointment on compassionate ground on merit.[Bihar State Electricity Board v. Chadra Shekhar Paswan, 2019 SCC OnLine Pat 562, decided on 18-04-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. allowed an appeal filed against the judgment of Delhi High Court whereby the marriage between the appellant and the respondent was held void.

The interesting factual matrix of the case is that, earlier, the appellant was married to one Rachna Agarwal. In August 2009, she had filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 which was allowed by the Additional District Judge and thus their marriage was dissolved. The appellant filed an appeal against the decree in the High Court. During pendency of the appeal, the appellant and the said Rachna Agarwal reached a settlement. Pursuant to the settlement, the appellant filed an application for withdrawing the appeal. It is pertinent to note that the settlement was reached on 15-10-2011; the application for withdrawal was filed on 28-11-2011, and the High Court dismissed the appeal as withdrawn on 20-12-2011. In the meanwhile, on 6-12-2011, the appellant married the respondent. Subsequently, consequent to matrimonial discord, the respondent filed a petition for declaring the marriage void under Section 5(i) read with Section 11. The main ground being that the appellant married the respondent during pendency of appeal against the decree of divorce from his first wife. The family court dismissed the respondent’s petition. However, on appeal, the High Court declared the marriage between the appellant and the respondent as null and void. Aggrieved by the same, the appellant filed the instant appeal.

To adjudicate the issue, the Supreme Court, inter alia, perused Section 15 of the Act. The Court observed that the section provides that it shall be lawful for either party to marry again after dissolution of marriage if there is no right to appeal against the decree. A second marriage by either party is lawful only after dismissal of an appeal against the decree of divorce is filed. The object of the provision was observed to provide protection to the appellant party and ensure that the said appeal is not frustrated. The purpose of the section is to avert complications that would arise due to a second marriage during pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded is primarily to a person who is contesting a decree of divorce. In the instant case, after entering into the settlement as mentioned hereinabove, the appellant did not want to contend the decree of divorce. His intention was made clear by filing the application for withdrawal of appeal. The Court was of the view that it could not be said that he had to wait till a formal order was passed in the appeal, or otherwise his marriage dated 6-12-2011 was unlawful. Following the principles of purposive construction, the Court held that the restriction placed on second marriage under Section 15 till dismissal of an appeal would not apply to a case where parties have settled the matter and decided not to pursue the appeal. The judgment of the High Court annulling the marriage between appellant and respondent was held to be erroneous. Accordingly, the judgment impugned was set aside and the appeal was allowed. [Anurag Mittal v. Shaily Mishra Mittal, 2018 SCC OnLine SC 1136, dated 24-08-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Tarlok Singh Chauhan, J. allowed the family pension to be paid to the parents of a Martyred Armyman after his wife performed the second marriage. The Court based its Judgment on an earlier decision of Kerala High Court.

The petitioners were parents of an Armyman enrolled in Assam Rifles who died in a terrorist encounter. Respondent 5, his wife, was receiving family pension. Subsequently, she performed the second marriage, and according to the petitioners, this disentitled her to the family pension which then ought to have been paid to them. Official respondents cited provisions of CCS Rules, contending that parents are not entitled to a pension in the event of the death of an employee of Paramilitary  Forces.

While adjudicating, the Court found that the issue was squarely covered by the decision of Kerala High Court in Panchami v. Union of India,2013 SCC OnLine Ker 24322, wherein the said High Court perused Liberalised Pensionary Awards (LPAs) as framed by the Union as well as notifications/orders issued thereunder, to hold that the family pension is intended to all the dependents of the deceased. Since, on re-marriage of the widow, she may not be able to take care of the parents of the deceased, the parents are entitled to the pension subject to limits mentioned in Section 4(4) of LPAs. In the context of placing reliance on the decision of another High Court, Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672 was referred wherein Supreme Court observed that every High Court must give due deference to the law laid down by other High Courts. In view of the aforesaid, the Court found merit in the petition and held the petitioners entitled to a pension to an extent of 75% of the pay last drawn by the deceased. [Bhagwati Devi v. Union of India, 2018 SCC OnLine HP 847, decided on 05-07-2018]