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.

Facts 

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]