The Kerala High Court has ruled that no offense of bigamy is committed when a person enters into a second marriage during the subsistence of an ex-parte divorce decree from their first marriage, even if that decree is subsequently set aside. This significant judgment was delivered by Justice A. Badharudeen while hearing two criminal miscellaneous petitions (Crl.M.C.No.8110/2022 and Crl.M.C.No.6166/2023) filed under Section 482 of the Code of Criminal Procedure.
Background of the Case
The case revolves around a man who married for the second time on December 30, 2017, after obtaining an ex-parte divorce decree from his first wife on May 12, 2017. The first wife filed a petition to set aside the ex-parte decree on December 27, 2017, just three days before the second marriage. The ex-parte decree was eventually set aside on March 5, 2018. Subsequently, the first wife filed a criminal complaint alleging bigamy against her husband and his parents.
Key Legal Issues
The primary legal question before the court was whether a marriage solemnized during the operation of an ex-parte divorce decree would amount to bigamy if the decree is later set aside. The court also had to consider the implications of Section 494 of the Indian Penal Code, which deals with the offense of bigamy.
Court’s Decision and Observations
Justice Badharudeen, in his judgment, held that no offense of bigamy is committed in such circumstances. The court made several important observations:
1. On the date of the second marriage, there was no legal marriage subsisting between the accused and the complainant due to the operation of the ex-parte divorce decree.
2. The court noted: “To put it more legibly, there was no legal barrier to solemnize a second marriage on the date of the second marriage.”
3. Importantly, the court observed that the accused was unaware of the petition filed to set aside the ex-parte decree when he entered into the second marriage.
4. The judgment stated: “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.”
5. The court also took into account that the accused married during the operation of the ex-parte decree, after the expiry of the period to set aside the decree or file an appeal against it.
6. Justice Badharudeen remarked: “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.”
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The court ultimately quashed the criminal proceedings against the accused and his parents, ruling that no penal consequences under Sections 494 (bigamy) and 109 (abetment) of the Indian Penal Code would be attracted since there was no subsisting legal marriage on the date of the second marriage.
