06/13/2024

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Arbitration in industrial relations 

Krishna Gopal Divedi vs. Prabha Divedi (2002) 

This article is written by Jaanvi Jolly. It provides a detailed study of the case of Krishna Gopal Divedi v. Prabha Divedi (2002), along with the facts, issues raised, arguments of the parties, and rationale behind the judgement. It also deals in brief with the concept of bigamy under Hindu law. The case is particularly concerned with answering the question, When can a Hindu marry once a divorce decree is obtained, and what is the implication of setting aside such a divorce decree on marriages solemnised subsequent to the divorce? The related aspects of the Hindu Marriage Act, 1955, and the Indian Penal Code, 1860, have also been discussed.

Introduction

The indissolubility of sacramental marriage was the primary aspect of traditional Hindu law, but monogamy was not. The groundbreaking Hindu Marriage Act of 1955 (hereinafter referred to as “HMA”) was a colossal step towards the reform of the marital laws to bring them in line with the constitutional ethos of New India. It introduced the concept of divorce on numerous grounds under Section 13 of the Act and made monogamy the rule by providing for culpability for bigamy under Section 17 of the Act read with Section 494 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). This is one case with peculiar facts that came before the Apex Court for determination. In Krishna Gopal Divedi v. Prabha Divedi (2002), a divorce decree was obtained ex parte by the husband, which was successfully applied to be set aside by the wife after a period of 4 years. However, prior to the setting aside, the appellant-husband had remarried. After the divorce decree was set aside, the position that emerged was troublesome, as the appellant-husband ended up with 2 wives, one from the first marriage whose divorce decree was set aside and the other from the subsequent marriage contracted after the divorce decree attained finality.

Details of the case

  • Case name: Krishna Gopal Divedi v. Prabha Divedi 
  • Appellant: Krishna Gopal Divedi
  • Respondent: Prabha Divedi 
  • Court: Supreme Court
  • Bench: Hon’ble Mr. Justice K.T. Thomas and Hon’ble Mr. Justice R.P. Sethi 
  • Case type: Special Leave Petition
  • Date of judgement: 23/02/2001
  • Equivalent Citations: 2001 (2) ALD (CRI) 156; (2002) 10 SCC 216

Facts of Krishna Gopal Divedi vs. Prabha Divedi (2002) 

The case originated via a divorce proceeding commenced by the appellant-husband, wherein an ex parte divorce decree was obtained by him. The decree was passed on 6.07.1990. Subsequently, he proceeded to perform a second marriage with another lady (second wife) on 25.05.1993. However, a twist to the tale was added by the fact that the respondent (first wife) was successful in getting the ex parte decree set aside on 31.03.1994.

Further, the respondent wife filed a criminal complaint against the appellant-husband for the offence under Section 494 of the IPC (now Section 81 of the Bharatiya Nyaya Sanhita 2023). Once the issue of process proceeded against the appellant-husband, he approached the High Court of Allahabad for quashing the proceedings and subsequently reached the Apex Court.

Issues raised 

The main issue to be decided in the present case was whether the setting aside of the exparte decree of divorce by the court subsequent to the marriage contracted by the appellant-husband would render him culpable for the offence of bigamy.

Arguments of the parties

Appellant

The final divorce decree was obtained on 6.7.1990, and the marriage with another lady was performed on 25.05.1993, which was more than two and a half years after the divorce. On the date of the marriage, the decree of the court granting divorce was operative, and thus the first marriage was dissolved. The appellant-husband was free to marry again, and thus no case for bigamy could be made against him due to the subsequent setting aside of the ex parte divorce decree. Thus, the criminal complaint must be quashed.

Respondent  

The respondent (first wife) admitted that she did move an application to set aside the decree of divorce passed ex parte only on 31.03.1994, and that if not from the date of the appellant’s second marriage, then at least from 31.03.1994, the appellant must be held guilty of bigamy.

Legal provisions involved in the case

Section 5 of the HMA, 1955

This section lays down the essential conditions which must be satisfied to perform a valid marriage. Section 5(i) stipulates that at the time of solemnization of the marriage, neither of the spouses should have another spouse living. Which means that essentially it declares a bigamous marriage to be void. In the case of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988), the Supreme Court held that where a Hindu performs a subsequent marriage while he has a spouse living, it would be null and void from the very start. 

Section 11 of the HMA, 1955

This section is read along with Section 5 of HMA, 1955, and the conjoint effect of these provisions is that a marriage performed in violation of clause (i) or (iv) or (v) of Section 5 would be null and void in the eyes of law. In the case of Ramvati Gupta v. State of Uttar Pradesh (1984), the Allahabad High Court held that a marriage solemnised in violation of Section 11 would not confer the status of a lawfully wedded husband and wife upon the parties.

Section 15 of the HMA, 1955

This section mentions the time period that the parties are obligated to wait after the divorce decree is passed and before they can lawfully marry again. Where no right to appeal is statutorily provided, the parties can remarry immediately, but where the appeal is allowed, they have to wait till the time to prefer such an appeal has expired, or where the appeal was preferred but dismissed before lawfully remarrying. In the case of Gangabai v. Rambabu (2014), the Madhya Pradesh High Court observed that once the period of 90 days ends and no appeal has been filed, a right to remarry accrues in favour of the parties.

Section 494 of the IPC, 1960

This section deals with the offence of bigamy; it punishes the erring spouse who has contracted a second marriage during the subsistence of the first one, where, as per the law applicable to the parties, the subsequent marriage is declared to be void. In the case of Priya Bala Ghosh v. Suresh Chandra Ghosh (1971), the court ruled that for an act to constitute the offence of bigamy, the following conditions must be met: the spouse from the first marriage must be living, both marriages must be conducted with the necessary ceremonies, and the subsequent marriage must be void according to the law applicable to the parties.

Section 482 of the CrPC, 1973

This section saves the inherent powers of the High Court and allows it to make any order to ensure justice and prevent abuse of the court process. In the landmark case of State of Haryana v. Bhajan Lal (1992), it was observed that one of the grounds to quash a proceeding was that the allegations made in the complaint, even if taken on face value, do not constitute an offence. Which means that the essential ingredients to constitute the offence alleged were not satisfied by a primary perusal of the complaint itself.

Judgement in Krishna Gopal Divedi vs. Prabha Divedi (2002)

The Apex Court accepted the contentions put forward by the appellant-husband that, on the date of the subsequent marriage, the first marriage stood dissolved by the ex-parte decree of divorce. A divorce decree, as a general rule, is operative from the moment of pronouncement, subject to the limitations of Section 15 of the HMA 1955 regarding remarriage. The divorce decree dissolves marriage for all intents and purposes from the pronouncement date.

The rights of the second wife need to be protected, as she is the innocent victim in this case. As the hon’ble judges said, the good days of the newly married wife didn’t last long. In the light of constitutional principles of justice and reasonableness, no injustice can be allowed to be caused to the couple who validly married after the divorce decree became final, as per Section 15.

In the present case, the decree was set aside on 31.03.1994, while the second marriage was solemnised on 25.05.1993. Thus, it was held that the appellant-husband could in no way be convicted of bigamy, and the criminal complaint, which was an exercise in futility and would only waste the time of the courts, was quashed.

Rationale and analysis of the case 

The overwhelming number of cases before the court is a well-known issue, often causing divorce proceedings to take years to reach a resolution. Forced to spend years of their lives in litigation, the parties indubitably seek to restart their lives as soon as possible. Once the trial court has pronounced its decision and the period to present an appeal expires, it would be unjust to expect the parties to live in the looming fear of a belated appeal being filed by seeking condonation of delay. The lives of people do not seem to stop, and when one relationship falls apart and the wounds are healed, they often find themselves looking for mates to carry forward the journey of life. By mere filing of a belated appeal, the validity of the marriage performed as per the provisions of Section 15 cannot be questioned. As the parties usually restart their lives by the time the belated appeal is filed, the rights of not just the parties but also of their second spouse get involved. These hard realities of life were acknowledged and recognised by the court in the present case.

Herein, once the divorce decree was obtained, the husband went ahead and married another woman after the period required under Section 15 expired. Thus, as per law, the marriage was lawful and valid, and the subsequent setting aside of the ex parte, which apparently changed the status of the marriage from dissolved to subsisting, would not have any effect on the validly performed marriage. In the case of Krishnaveni Rai v. Pankaj Rai (2020), the court observed that the bar of Section 15 applies where an appeal is filed within the period of limitation and not afterwards upon condonation of delay sought unless the decree of divorce is stayed or an interim order is passed by the court restricting the parties from remarrying. The appellant cannot be expected to wait till eternity in the anticipation that an application for condonation of delay might be filed, and consequently, an appeal would be preferred.

The following principles were laid down in relation to the facts of marriages solemnised in the following situations:

  1. Second marriage contracted during the pendency of divorce proceedings: Until a final decree is passed, the parties continue their status as husband and wife. There might be a situation where, in the end, the court refuses to pass a decree of divorce. Thus, such a second marriage would attract the provisions of Section 494 IPC.
  2. Second marriage contracted after a decree of divorce but in contravention of the period required by Section 15 of the Hindu Marriage Act: This question was addressed in the case of Lila Gupta v. Laxmi Narain (1978). The court observed that the consequences of treating such marriages as void would be catastrophic and are likely to affect innocent people who are associated with the marriage, including children born during its continuance. Further, HMA, 1955, is silent upon the contravention of Section 15. Its violation does not attract any penalty, nor is the marriage declared to be void, which clearly manifests the legislative intent of not treating such marriages as void. However, due to the violation of the express provision, some penalties can be imposed, for instance, a higher amount of maintenance or alimony to the wife.
  3. Second marriage contracted after a decree of divorce and after the period required by Section 15: Such a marriage would be lawful, as legally the ex-spouse is only obligated to wait for a period prescribed by Section 15 and thereafter is free to remarry, as held in the present case. One cannot be expected to anticipate the future actions of the opposite party or stay under the damocles sword.

The respondent wife relied upon the setting aside of the decree of divorce and filed a complaint for the offence of bigamy against the husband. Bigamy, which is dealt with under Section 494 of the IPC, has some essential ingredients that need to be satisfied before a charge under the section can be sustained. In the case of Gopal Lal v. State of Rajasthan (1979), the Apex Court enunciated those essentials. First, the defaulting spouse should have contracted the first marriage validity. Second, while the first marriage subsisted, he should have married another person, and such a second marriage must be void as per the law applicable to the parties. Third, all the requisite ceremonies should have been performed in the second marriage. Applying these essential ingredients in the present case, it was observed that while the first and third conditions were fulfilled, the second was absent. The appellant-husband remarried after the decree of the trial court was final and the period of appeal had expired.

Subsequent judgments that have discussed the case of Krishna Gopal Divedi Cvs. Prabha Divedi

The ratio was also discussed in the case of Kunti Devi v. Som Raj (2004), wherein the facts were very similar to the case in point. In brief, the divorce decree was obtained, a subsequent marriage was contracted by the husband, and on appeal, the divorce decree was set aside. The complaint was filed by the wife for the offence of bigamy, against which an application under Section 482 was filed for the quashing of criminal proceedings. However, there were two distinguishing aspects:

  • The appellate court had stayed the divorce decree of the trial court. 
  • There was a dispute regarding when the second marriage was contracted, whether it was before or after the stay order.

Thus, the ratio of Krishna Gopal Divedi v. Prabha Divedi was not applied by the court therein.

The judgement has also been relied upon and followed in the case of Deepak Kumar v. Murari Lal (2004), wherein the second marriage was contracted after the expiry of the period specified under Section 15, but later the ex parte decree was set aside and a complaint for the offence of bigamy was filed. Similarly, in the case of Smt. Dharmwati v. State of U.P. (2015), a second marriage was contracted after an ex parte divorce decree passed in 2004; the ex-husband remarried in 2005; later, such a decree was challenged in an appeal filed in 2010. The Supreme Court, relying upon the present case in discussion, held that solemnization of marriage after the passing of a decree cannot make him liable for an offence under Section 494 IPC, irrespective of filing an appeal in the future beyond the period under Section 15 HMA.

Conclusion

The fundamental constitutional principles that guide the legislation as well as the interpretation and adjudication of all the laws are equity, justice, good conscience, reasonableness, and non-arbitrariness. The matters of matrimony are part of the very intricate corners of our lives, built on love and compassion; nevertheless, when they fall apart, they leave behind bitterness and rancour. It is in the interest of society as well as the individual that the misery caused by the breakdown of the marriage is put to an end, thus giving the parties involved closure along with another chance to restart their lives. Thus, the courts of justice understand that the rights of numerous individuals get involved once a second marriage is performed lawfully. The rights of the second wife and the children from such a marriage cannot remain unsettled by a delayed appeal being filed. Thus, in conclusion, the court adopted an interpretation that served societal and individual interests and held that a marriage which was valid and lawful at the time of solemnization remains so even after preferring such a belated appeal.

Frequently Asked Questions (FAQs)

Can a person who was married under Hindu law subsequently convert to Islam and marry again legally, or will he be culpable for bigamy?

As settled by the landmark case of Sarla Mudgal v. Union of India (1995), a marriage contracted under Hindu law would have to be first dissolved; unless done so, the subsequent conversion to Islam and performance of Nikah would not make such a second marriage valid; it would indeed be void, and liability under Section 494 of the IPC would arise.

What is the punishment for bigamy?

Bigamy is punishable under Section 494 of the IPC with up to 7 years of imprisonment and a fine.

What is the time period required after the divorce decree and prior to remarriage, as per law?

Section 15 read with Section 28 of the HMA 1955 fixes the time in cases where appeal lies 90 days and, in other cases, after the pronouncement. If an appeal is filed, it would not ipso facto stay the divorce decree passed by the trial court, and a stay would have to be obtained.

References

  • https://www.the-laws.com/Encyclopedia/Browse/Case?caseId=001002393000&title=krishna-gopal-divedi-vs-prabha-divedi 

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