No Offence Of Bigamy If Second Marriage Is Performed During Subsistence Of Ex-Parte Divorce Decree Which Is Later Set Aside: Kerala High Court

Justice A. Badharudeen observed that there was no legal marriage subsisting between the parties when the second marriage took place due to the operation of the ex parte decree of divorce, even if it was set aside later. The Court stated thus:

“...whether a marriage solemnized during operation of an ex parte decree of divorce of the earlier marriage, would amount to the offence of bigamy, when the ex parte decree of divorce is subsequently set aside? In this connection, the relevant aspect is, as on the date of the second marriage, there was no legal marriage subsisting in between the accused and the respondent, in view of operation of the ex parte decree of divorce. To put it more legibly, there was no legal barrier to solemnize a second marriage on the date of the second marriage. In this particular case, the accused did not know about filing of a petition to set aside the ex parte decree of divorce, on the date of his second marriage. Thus, it is to be held that, when there is decree of divorce and one among the parties to the decree marries during the subsistence of the ex parte decree, even though the ex parte decree happened to be set aside on a subsequent date, no offence of bigamy would attract.”

The Criminal miscellaneous petitions were filed by the petitioner /1st accused and his parents who were arrayed as 2^nd and 3^rd accused to quash the criminal proceedings against them alleging the commission of the offence of bigamy.

The complainant alleged that the petitioner entered into a second marriage during the subsistence of their marriage and committed the offence of bigamy and his parents abetted the commission of it.

Counsel for Petitioner submitted that the ex parte decree for divorce was granted on May 12, 2017. It was stated that the complainant did not file petition to set aside ex parte decree or appeal. It was stated that the period for filing petition to set aside ex parte decree expired in June 2017 and the period for filing appeal against the ex parte order also expired in August 2017.

It was stated that the petitioner married another lady only on December 30, 2017 after he was legally divorced by the ex parte decree.

The petitioner pointed out that the complainant filed petition to set aside the ex parte decree before the Family Court on December 27, 2017 which was only three days before the second marriage of the petitioner and that no notice was served to him or his lawyer. The ex parte decree for divorce was set aside on March 05, 2018.

The Court took note of the fact that no notice was served on the petitioner's lawyer nor any attempt was made to serve notice to the petitioner about the petition filed to set aside the ex parte decree of divorce by the complainant.

The Court noted that the parties had obtained mutual divorce also now. It also stated that there was no legal marriage subsisting while the second marriage took place due to the operation of the ex parte decree of divorce. The Court said:

“Holding so, here, the 1st accused married during the period of operation of the ex parte decree, that too, after the expiry of the period to set aside the ex parte decree and to file appeal challenging the ex parte decree. In such a case, it is not safe to fast criminal culpability upon the 1st accused, who married for the second time, since no valid marriage subsisting on the date of the second marriage.”

As such, the Court allowed the petition and quashed the criminal proceedings against the petitioner and his parents since no penal consequences under Sections 494 and 109 of the IPC would be attracted since there was no subsistence of legal marriage on the date of the second marriage.

Also Read: Section 494 IPC: Second Marriage While Divorce Decree Was Stayed; Appeal Dismissed Later; No Offence Of Bigamy: Kerala High Court

Citation: 2024 LiveLaw (Ker) 439

Case Title: Vivek Joy v State of Kerala & Connected Case

Case Number: CRL.MC NO.8110 OF 2022 & Connected Case

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