Cohabitation Built On Deception Without Proven Customary Divorce From First Wife Amounts To Rape: Telangana HC
The Telangana High Court has held that cohabitation built on deception without proven customary divorce from first wife amounts to rape. A division bench of Justices Moushumi Bhattacharya and BR Madhusudhan Rao held: "Under section 5(i) read with section 11 of the 1955 Act, if the husband is already a married man, the subsequent marriage is void ab initio and has no sanctity in law. Since...
The Telangana High Court has held that cohabitation built on deception without proven customary divorce from first wife amounts to rape. A division bench of Justices Moushumi Bhattacharya and BR Madhusudhan Rao held:
"Under section 5(i) read with section 11 of the 1955 Act, if the husband is already a married man, the subsequent marriage is void ab initio and has no sanctity in law. Since the respondent knew at the material point of time that he had a wife living at the time of entering into physical relations with the appellant and the appellant's consent to such physical relations was premised on her believing that the respondent is her lawfully-wedded husband, the respondent is guilty of the offence punishable under sections 375 and 376 of the IPC and alternatively, under sections 63 and 64 of the BNS."
The present appeal arose out of an order passed by the Sessions Court in a plea under sections 11, 5 and 25 of The Hindu Marriage Act, 1955 read with section 7 of The Family Courts Act, 1984 for a decree of nullity of marriage solemnized between the appellant and the respondent on the ground that the respondent was not divorced from his first wife on the date of his marriage to the appellant.
The Appellant also prayed for a direction on the respondent to pay Rs.1 Crore as alimony under section 25 of the 1955 Act. The Trial Court dismissed the appellant's petition for a decree of nullity of the marriage solemnized between the appellant and the respondent on the ground that the appellant was aware of the respondent's first marriage and that the appellant failed to file any document proving the financial net worth of the respondent in support of her claim for permanent alimony.
Background of the dispute
The appellant contended that the respondent had suppressed the fact of his surviving spouse as on the date of the respondent's marriage with the appellant. The appellant and the respondent were married on 08.03.2018 at Lakshmi Narasimha Swamy Temple, Yadagirigutta, as per Hindu Rites and Customs and in the presence of elders and relatives. The appellant also complained that the respondent was controlling by nature and checked the appellant/petitioner's personal e-mails, messages and Whatsapp chats and misappropriated funds from the appellant's salary account.
However, the primary ground urged by the appellant for nullity of marriage was that the respondent committed fraud on the appellant by lying about the dissolution of his first marriage. The appellant also complained that the respondent filed a petition for restitution of conjugal rights in 2019 before the Family Court at Visakhapatnam while the parties were in the process of finalizing the terms of their divorce by mutual consent. The appellant came to know that the respondent had filed a petition for anticipatory bail (Crl.M.P.No.2863 of 2020 in Crime No.978 of 2019) before the Metropolitan Sessions Judge, Hyderabad, wherein the respondent stated that his first marriage was dissolved in 2008 according to customary practices prevalent in his family.
The appellant accordingly prayed for a decree of nullity of her marriage with the respondent on the ground of the respondent not being divorced from his first wife and for the respondent to pay alimony of Rs.1 Crore.
The respondent filed a Counter to the petition denying and disputing the contentions raised by the appellant. The respondent stated that his first wife suffered from acute ill-health and that the respondent and his wife were divorced in accordance with customs and traditions with the consent of the parents of the first wife. The respondent stated that the appellant was aware of the respondent's first marriage and that the appellant was also introduced to the respondent's daughter from his first marriage. The respondent did not deny the fact of his marriage with the appellant not being registered despite being performed on 08.03.2018 at Yadagirigutta, Telangana.
Customary divorce not obtained by respondent from first wife
After dealing with contentions of limitation, the court noted that a pleading of Customary Divorce must be proved by documentary or oral evidence.
It stated that admittedly, the respondent in the present case did not lead any evidence of the customary divorce between the respondent and his first wife. The impugned order dated 19.11.2024 reflects that despite conditional orders, the respondent neither appeared nor filed his evidence. This means that the respondent declined to lead evidence to prove customary divorce from his first wife or otherwise. Apart from a mere pleading that the respondent obtained divorce through customary practice, no other evidence of the existence of such a customary practice or a document showing that the divorce was indeed obtained through such a customary practice was produced by the respondent.
Significantly, in the petition for restitution of conjugal rights, the respondent filed a copy of the order passed in the divorce petition filed by the appellant but did not file any document with regard to his customary divorce from his first wife. Therefore, the Trial Court was under an obligation to frame an issue as to whether the respondent had properly pleaded the existence of a customary divorce in the community to which the respondent belonged and whether such customary divorce was in tune with the manner and formalities of the attending customs. The Trial Court should also have framed an issue and examined it in the light of the evidence led by the respondent to prove the customary divorce pleaded to the satisfaction of the Court, the court noted.
Charges of rape u/s 375 IPC apply against the respondent
Court noted that the respondent married the appellant during the lifetime of his first wife without being covered by the exception carved out under section 29(2) of the 1955 Act with regard to customary divorce. This leads to the irrefutable presumption that the respondent knowingly cohabited with the appellant as her spouse from 08.03.2018 on the appellant's mistaken belief that the respondent had divorced his first wife.
It said Section 375 of the IPC and section 63 (d)(iv) of the BNS envisages specific situations and the necessary lack of volition in the act of rape or a mistaken assumption being the cause of the volition. The fourth condition of section 375 (”Fourthly”) is attracted where there is knowledge on the part of the man that he is not the husband of the person on who he commits rape and that her consent is given only because she believes that he is her legally-wedded spouse or believes herself to be lawfully married to that person.
Trial court's findings were both presumptuous and objectionable
Court noted that the Family Court imputed constructive knowledge to the appellant with regard to the divorce between the respondent and his first wife without any basis for reaching this conclusion. The Trial Court assumes that the appellant had knowledge of the divorce since the marriage between the appellant and the respondent was a “love cum arranged marriage”.
Not only is this finding completely irrelevant to the nature of the marriage performed between the parties but also is contrary to the record since the respondent has categorically stated in his counter to the petition that their marriage was an arranged marriage. The Family Court concludes that the appellant was at fault for not enquiring about the divorce of the respondent despite being married for six months, the court noted.
The Trial Court indulges in findings which are both presumptuous and objectionable. An instance of this – the petitioner (appellant) is “enjoying luxurious life and squeezing the money from the respondent”; and again “she is closing her eyes and watching the marriage”. The elaborate discussion regarding the quality of married life between the appellant and the respondent is replete with unnecessary factual details. The Trial Court concludes – without basis - that the appellant was at fault for not finding out more about the respondent's family, it added.
Accordingly, the court set aside the impugned order dated 19.11.2024 and allowed the appeal.
