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Maj Pankaj Rai vs Ms Krishnaveni Rai, on 8 January, 2020

HIGH COURT FOR THE STATE OF TELANGANA

THE HON’BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HON’BLE SRI JUSTICE A.ABHISHEK REDDY

Family Court Appeal No.193 of 2019

Date: 08 – 01 -2020.

Between:

Maj Pankaj Rai …Appellant

And

Ms.Krishna Veni Rai, Nee
Ms.Krishnaveni Challa
…Respondents

Counsel for the Appellant : Maj.Pankaj Rai,
Party-in-person

Counsel for the Respondent : Sri C. Srinivas

The Court made the following:
2 HCJ AARJ
FCA.No.193/2019

JUDGMENT: (Per the Hon’ble Sri Justice A.Abhishek Reddy)

Aggrieved by the Order, dated 21.09.2019, passed in

O.P.No.475/2015 by the Judge, Additional Family Court, Hyderabad,

whereby the learned Family Court had dismissed the petition filed under

Section 151 of the Code of Civil Procedure by the appellant herein

seeking extension of time for paying the maintenance amount, allowed

I.A.No.300 of 2019 filed by the respondent herein, and dismissed the main

O.P. on the ground that the appellant herein has not complied with the

order passed in I.A.No.1192 of 2017, dated 19.12.2018, and which was

confirmed by the High Court in C.R.P.No.242 of 2019, the present Appeal

is filed.

2) The brief facts of the case are that the appellant herein had filed

O.P.No.475 of 2015 seeking annulment of marriage under Section 12 of

the Hindu Marriage Act, 1955 (for short “the Act”), against the respondent

herein. It is the case of the appellant that though the marriage between

the parties was solemnized on 13.12.2014, in accordance with the Hindu

Temple rites, the same could not be registered with the Registrar of

Marriages, Hyderabad, as the respondent, who was a divorcee, could not

produce the divorce decree, which she has stated to have obtained from a

competent Court. Subsequently, the appellant discovered that in fact the

respondent had not filed for the divorce. Instead, it was her first husband

who had filed for divorce before the Family Court, Hyderabad. The O.P.

filed by the first husband was numbered as O.P.No.847 of 2000, and

decree of divorce was granted on 28.06.2005. Aggrieved by the said

order, the respondent had filed a Family Court Appeal before the High

Court and the same was pending. It is the further case of the appellant

that during the pendency of O.P. No.475 of 2015 filed by the appellant

herein for divorce, the respondent herein had filed I.A.No.1192 of 2017
3 HCJ AARJ
FCA.No.193/2019

seeking an interim maintenance under Section 24 of the Act; the Family

Court has awarded an interim maintenance of Rs.20,000/- per month from

the date of petition, besides awarding Rs.20,000/- towards legal

expenses, and also directed the appellant herein to pay the arrears in

three equal monthly installments commencing from January, 2019, and

also to pay the monthly interim maintenance on or before 10th of every

succeeding calendar month. Aggrieved by the orders of the Family Court

in granting interim maintenance, the appellant had preferred a Civil

Revision before this Court and the same was numbered as C.R.P.No.242

of 2019. Vide order, dated 19.03.2019, this Court had dismissed the said

C.R.P. holding that the interim maintenance granted by the lower Court

was not exorbitant in view of the status of the parties. Thereafter, the

respondent herein had filed I.A.No.300 of 2019 seeking dismissal of the

main O.P.No.475 of 2015 on the ground that the appellant herein has not

paid the interim maintenance and legal expenses contrary to the orders of

the Family Court and High Court. The Judge, I Additional Family Court,

Hyderabad, vide order, dated 14.09.2019, granted time to the appellant

herein till 21.09.2019, to comply with the order passed in I.A.No.1192 of

2017, dated 19.12.2018, granting interim maintenance. Subsequently, the

appellant had filed an Interlocutory Application seeking extension of time

by four weeks for complying with the order passed in I.A.No.300 of 2019,

dated 14.09.2019, ostensibly on the ground that he wanted to prefer a

Civil Revision Petition against the order, dated 14.09.2019. Vide order,

dated 21.09.2019, the Family Court has dismissed the application filed by

the appellant herein seeking extension of time for payment of the interim

maintenance and legal expenses; the learned Family Court allowed

I.A.No.300 of 2019 filed by the respondent herein, and dismissed the main

O.P. on the ground that the appellant herein has not complied with the

order passed in I.A.No.1192 of 2017, dated 19.12.2018, and which was
4 HCJ AARJ
FCA.No.193/2019

confirmed by the High Court in C.R.P.No.242 of 2019 vide order, dated

19.03.2019. Impugning the order passed in I.A.No.300 of 2019, dated

21.09.2019, the present appeal is filed.

3) The appellant has preferred the present Appeal mainly

contending that he was not liable to pay any maintenance as the marriage

between the parties itself is null and void. Secondly, this Court vide order,

dated 09.04.2019, in Crl.R.C.No.2587 of 2017, has observed that “the

material placed on record clearly establishes that there was marital

relationship between the petitioner and her first husband and the marriage

between them subsisted as on 13.12.2014. It establishes that the second

marriage in between the petitioner and the 2nd respondent was performed

during the subsistence of the first marriage of the petitioner. Therefore, it

is a nullity. There is also material to substantiate that by suppressing the

material facts with regard to the first marriage of the petitioner, the

marriage in between the petitioner and respondent No.2 was performed.

Even though there was a second marriage in between the parties to the

litigation on 13.12.2014, it is not a marriage in the eye of law. It is only a

nullity. Therefore, there is no marital relationship in between the parties to

the dispute.”. Thus, according to the appellant, in view of the finding

recorded by the High Court in Crl.R.C.No.2587 of 2017, the order of

maintenance and the dismissal of O.P. itself are bad. Hence, he is not

liable to pay any maintenance. The appellant has relied on LILA GUPTA

v. LAXMI NARAIN ORS1, MR.ANURAG MITTAL v. MRS.SHAILY

MISHRA MITTAL2, DEOKI PANJHIYARA v. SHASHI BHUSHAN

NARAYAN AZAR ANR3, INDRA SARMA v. V.K.V.SARMA4, CHANDI

1
AIR 1978 SC 1351
2
Civil Appeal No.18312 of 2017, Supreme Court of India
3
Criminal Appeal Nos.2032-2033 of 2012, Supreme Court of India
4
Criminal Appeal No.2009 of 2013, Supreme Court of India
5 HCJ AARJ
FCA.No.193/2019

PRASAD ORS v. JAGDISH PRASAD ORS5, UNION OF INDIA AND

ORS. v. WEST COAST PAPER MILLS LTD., ANR6, and

S.P.CHENGALVARAYA NAIDU v. JAGANNATH7 to buttress his case.

4) Heard Mr.Maj Pankaj Rai, the party-in-person, and

Mr.C.Srinivas, the learned Counsel appearing for the respondent.

5) The main thrust of the argument of the appellant herein is that in

Crl.R.C.No.2587 of 2017, Crl.R.C.No.149 of 2019, and Crl.P.No.14188 of

2015, this Court has declared the marriage between the parties as null

and void. Therefore, the order of the lower Court in directing to pay the

maintenance to the respondent herein is non est in the eye of law. It is to

be noted that Crl.R.C.No.2587 of 2017 was filed against the order passed

in M.C.No.152/2015 by the Additional Metropolitan Sessions Judge for the

trial of JHCBBC-cum-Additional Family Judge, Hyderabad; Crl.R.C.No.149

of 2019 was filed by the respondent herein aggrieved by the order of the

learned Metropolitan Sessions Judge, Hyderabad, in Criminal Revision

Petition No.192 of 2017, wherein the Criminal Revision Petition was

allowed by the learned Metropolitan Sessions Judge discharging the

appellant/accused for the offence under Section 498-A I.P.C., by setting

aside the order, dated 15.03.2017 in Crl.M.P.No.6829 of 2016 in

C.C.No.159 of 2016 on the file of the XIII Additional Chief Metropolitan

Magistrate (Mahila Court), Hyderabad; Criminal Petition No.14188 of 2015

was filed by the appellant herein to quash the proceedings in

D.V.C.No.170 of 2015 on the file of the IV Metropolitan Magistrate,

Hyderabad.

6) In all the above three cases, the learned Single Judge of this

Court had made an observation that the marriage between the parties is
5
Civil Appeal No.599 of 2003, Supreme Court of India
6
Civil Appeal No.1061-62 of 1998, Supreme Court of India
7
AIR 1994 S.C. 853
6 HCJ AARJ
FCA.No.193/2019

void in terms of Section 15 of the Hindu Marriage Act. It is trite to state

that these observations made by the learned Single Judge will not operate

as decree for divorce annulling the marriage between the parties. It is well

accepted principle of law that even in case of marriages, which come

within the purview of Section 11 (void marriages) and Section 12 (voidable

marriages) of the Act, the parties to the marriage have to file a petition

before a competent Civil Court to declare the said marriage as null and

void. Unless and until the decree of divorce dissolving the said marriage

between the parties is passed by the competent Civil Court, the marriage

is held to be in subsistence till passing of the decree of divorce. Any

observations made in criminal proceedings either under the provisions of

Criminal Procedure Code, Hindu Marriage Act, or Domestic Violence Act,

are intrinsic for the limited purpose of deciding the issue in that application

and it cannot be said that the marriage is declared as a nullity, unless and

until a competent Civil Court passes a decree of divorce. In the absence

of any decree of divorce, it cannot be countenanced that the observations

made in the criminal proceedings, will become a binding precedent and

the same has to be given effect to in all the cases.

7) In KISHAN SINGH (D) THROUGH L.Rs., Vs. GURPAL SINGH

ORS (Criminal Appeal No.1500 of 2010), the Hon’ble Supreme Court

held that:

The law on the issue stands crystallized to the effect that the
findings of fact recorded by the Civil Court do not have any bearing so
far as the criminal case is concerned and vice-versa. Standard of proof
is different in civil and criminal cases. In civil cases it is preponderance
of probabilities while in criminal cases it is proof beyond reasonable
doubt. There is neither any statutory nor any legal principle that
findings recorded by the court either in civil or criminal proceedings
shall be binding between the same parties while dealing with the same
subject matter and both the cases have to be decided on the basis of
the evidence adduced therein. However, there may be cases where the
7 HCJ AARJ
FCA.No.193/2019

provisions of Sections 41 to 43 of the Indian Evidence Act, 1872,
dealing with the relevance of previous Judgments in subsequent case
may be taken into consideration.

8) In this particular case, the order of maintenance granted by the

Family Court in I.A.No.1192 of 2017, dated 19.12.2018, has been

confirmed by the High Court in C.R.P.No.242 of 2019, by order, dated

19.03.2019. Hence, the appellant herein cannot re-agitate the said issue

in the present F.C.A., which is filed against the order, dated 21.09.2019,

whereby I.A.No.300 of 2019 was allowed dismissing the O.P.No.475/2015

for non-compliance of the order for payment of interim maintenance and

legal expenses. The other judgments relied by the appellant are also of

no help.

9) In RAMESH CHANDRA RAMPRATAPJI LAGA v.

RAMESHWARI RAMESH CHANDRA DAGA8, the Hon’ble Supreme

Court has held that “a Hindu marriage can be dissolved only in

accordance with the provisions of the Act by obtaining a decree of divorce

from the Court. In the absence of such a decree of dissolution of

marriage, it has to be held that in law the first marriage of the wife

subsisted when the wife went through the second marriage with the

present husband”.

10) In Deoki Panjhiyara v. Shashi Bhushan Narayan Azad9, the

Hon’ble Supreme Court has held that:

19. In the present case, if according to the respondent, the marriage
between him and the appellant was void on account of the previous
marriage between the appellant and Rohit Kumar Mishra the respondent
ought to have obtained the necessary declaration from the competent court
in view of the highly contentious questions raised by the appellant on the
aforesaid score. It is only upon a declaration of nullity or annulment of the
marriage between the parties by a competent court that any consideration
of the question whether the parties had lived in a relationship in the nature

8
AIR 2005 SC 422
9
(2013) 2 SCC 137
8 HCJ AARJ
FCA.No.193/2019

of marriage would be justified. In the absence of any valid decree of nullity
or the necessary declaration the court will have to proceed on the footing
that the relationship between the parties is one of marriage and not in the
nature of marriage. We would also like to emphasise that any
determination of the validity of the marriage between the parties could have
been made only by a competent court in an appropriate proceeding by and
between the parties and in compliance with all other requirements of law.
Mere production of a marriage certificate issued under Section 13 of the
Special Marriage Act, 1954 in support of the claimed first marriage of the
appellant with Rohit Kumar Mishra was not sufficient for any of the courts,
including the High Court, to render a complete and effective decision with
regard to the marital status of the parties and that too in a collateral
proceeding for maintenance. Consequently, we hold that in the present
case until the invalidation of the marriage between the appellant and the
respondent is made by a competent court it would only be correct to
proceed on the basis that the appellant continues to be the wife of the
respondent so as to entitle her to claim all benefits and protection available
under the DV Act, 2005.

11) The appellant has relied upon Lila Gupta’s case (supra),

wherein the Hon’ble Supreme Court was dealing with a case where the

husband – Rajendra Kumar had filed a petition seeking decree of divorce

from his wife – Sarla Gupta, and the same was decreed on 08.04.1963.

Subsequently, the husband – Rajendra Kumar married one Lila Gupta on

25.05.1963 and he expired on 07.05.1965. Thereafter, disputes arose

regarding the succession to the Bhumidari rights between Lila Gupta (the

2nd wife) and the brothers of Rajendra Kumar. The contention raised by

the brothers of Rajendra Kumar was that the second marriage of Rajendra

Kumar was hit by proviso to Section 15 of the Hindu Marriage Act, 1955,

and as such, the marriage between the parties was null and void. In the

claim petition filed before the Deputy Director of Consolidation, the right of

Lila Gupta was upheld; the brothers of Rajendra Kumar filed a writ petition

under Article 227 of the Constitution of India in the High Court of

Allahabad. A learned Single Judge had allowed the Writ Petition declaring

the marriage between Rajendra Kumar and Lila Gupta as null and void, as

it was in contravention of proviso to Section 15 of the Hindu Marriage Act,

1955. A Division Bench upheld the order of the learned Single Judge;

9 HCJ AARJ
FCA.No.193/2019

aggrieved by the same, the second wife (Lila Gupta) filed S.L.P. before

the Hon’ble Supreme Court. In these set of facts, the Hon’ble Supreme

Court while setting aside the order of the learned Single Judge and the

Division Bench, has held as follows:

20. Thus, examining the matter from all possible angles
and keeping in view the fact that the scheme of the Act
provides for treating certain marriages void and
simultaneously some marriages which are made punishable
yet not void and no consequences having been provided for
in respect of the marriage in contravention of the proviso to S.
15, it cannot be said that such marriage would be void.

21. The appellant was denied the status of the wife of
Rajendra Kumar and, therefore, his widow, and an heir to him
on his death on the only ground that her marriage with
Rajendra Kumar was void, being in contravention of the
proviso to S. 15. As her marriage, even though in
contravention of the provisions of S. 15, is not void, she
cannot be denied the status of wife and, therefore, the widow
of deceased Rajendra Kumar and in that capacity as an heir
to him…

12) In Anurag Mittal’s case (supra), the Hon’ble Supreme Court

while dealing with a petition filed by the wife under Section 13 (1)(i)(a) of

the Hindu Marriage Act, has held as under:

18. Section 15 of the Act provides that it shall be lawful for
either party to marry again after dissolution of a marriage if
there is no right of appeal against the decree. A second
marriage by either party shall be lawful only after dismissal of
an appeal against the decree of divorce, if filed. If there is no
right of appeal, the decree of divorce remains final and that
either party to the marriage is free to marry again. In case an
appeal is presented, any marriage before dismissal of the
appeal shall not be lawful. The object of the provision is to
provide protection to the person who has filed an appeal
against the decree of dissolution of marriage and to ensure
10 HCJ AARJ
FCA.No.193/2019

that the said appeal is not frustrated. The purpose of Section
15 of the Act is to avert complications that would arise due to
a second marriage during the pendency of the appeal, in case
the decree of dissolution of marriage is reversed. The
protection that is afforded by Section 15 is primarily to a
person who is contesting the decree of divorce.

What is held in essence is that if a provision of law prescribes
an incapacity to marry and yet the person marries while under
that incapacity, the marriage would not be void in the absence
of an express provision that declares nullity. Quae incapacity
imposed by statute, there is no difference between an
incapacity imposed by negative language such as it shall not
be lawful or an incapacity imposed by positive language like it
shall be lawful (in certain conditions, in the absence of which
it is impliedly unlawful). It would thus appear that the law is
already settled by this Court that a marriage contracted during
a prescribed period will not be void because it was contracted
under an incapacity….

13) In view of the above mentioned facts and circumstances and

the law laid down by the Hon’ble Supreme Court, unless and until the

competent Civil Court passes a decree of divorce annulling the marriage

between the parties under any of the conditions laid down in Sections 11

and 12 of the Act, it cannot be said that the marriage between the parties

is null and void. In the present case also, the appellant herein is seeking

to avoid payment of maintenance on the ground that the marriage

between the parties is null and void, as the marriage was performed in

contravention of Section 15 of the Act, and also on the ground that in the

Criminal Revision Case, this Court has held that the marriage between the

parties is null and void.

14) In view of the aforesaid facts and circumstances, the Appeal is

devoid of merit and the same is hereby dismissed.

11 HCJ AARJ
FCA.No.193/2019

Pending Miscellaneous petitions, if any, shall stand closed. There

shall be no order as to costs.

_
RAGHVENDRA SINGH CHAUHAN, HCJ

__
A.ABHISHEK REDDY, J
Date : 08-01-2020.

smr

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