In a pathbreaking decision with wide-ranging implications for marital fraud and sexual consent, the Telangana High Court has held that sexual relations secured through the false pretext of lawful marriage—when the man has not legally divorced his first wife—amounts to rape under Section 375 of the Indian Penal Code and Section 63 of the Bharatiya Nyaya Sanhita.
Allowing Family Court Appeal No. 19 of 2025, a Division Bench comprising Justice Moushumi Bhattacharya and Justice B.R. Madhusudhan Rao declared void the marriage between the appellant and the respondent and set aside the Family Court’s dismissal of her petition for nullity. The Court delivered a strong indictment of both the respondent’s conduct and the Family Court’s “presumptuous and objectionable” reasoning.
Background and Case Facts
The appellant and respondent were married on March 8, 2018, at Lakshmi Narasimha Swamy Temple, Yadagirigutta, under Hindu rites. However, the appellant later discovered that the respondent’s first marriage had not been lawfully dissolved. She filed O.P. No. 539 of 2021 seeking a decree of nullity under Sections 11, 5, and 25 of the Hindu Marriage Act, 1955, read with Section 7 of the Family Courts Act, 1984, and demanded Rs. 1 crore as permanent alimony.
The Family Court dismissed her petition, observing that she had “constructive knowledge” of the respondent’s prior marriage and had not proved his financial status for alimony. The High Court sharply disagreed.
Customary Divorce Claim Rejected
The respondent claimed that his first marriage had been dissolved by customary divorce with mutual consent of family elders. However, the Court noted:
“The respondent did not lead any evidence to prove the alleged divorce by custom… Apart from a mere pleading… no other evidence… was produced by the respondent.”
The Bench held that Section 29(2) of the Hindu Marriage Act, while recognizing customary divorce, imposes a strict evidentiary burden. Without oral or documentary proof of the existence, nature, and observance of such custom, the plea must fail.
Quoting Supreme Court precedent in Subramani v. M. Chandralekha [(2005) 9 SCC 407], the Court emphasized:
“No evidence was led to prove that the Deed of dissolution of marriage was in conformity with the custom applicable to divorce in the community.”
Non-Impleadment of First Wife Not Fatal
Rejecting the technical objection that the respondent’s first wife was not impleaded, the Bench adopted a practical and humane approach:
“This is not a case where the adjudication would entail questions regarding her character, integrity or reputation… the respondent’s first wife has been in a state of coma for a while.”
Thus, invoking the proviso to Rule 8(1) of the Andhra Pradesh Rules regulating proceedings under the Hindu Marriage Act, the Court held that non-impleadment would not vitiate the proceedings.
Ruling on Consent and Rape
In one of the most powerful portions of the judgment, the Bench invoked Section 375 (Fourthly) of IPC and Section 63(d)(iv) of the BNS, 2023, holding that the appellant’s consent for sexual relations was vitiated by the false belief that she was lawfully married.
The Court observed:
“Since the respondent knew at the material point of time that he had a wife living… 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.”
Referring to Bhupinder Singh v. UT of Chandigarh [(2008) 8 SCC 531], the Court added:
“Consent given on a mistaken belief of lawful marriage is no consent in the eyes of law.”
Family Court Order Criticized
The High Court was unsparing in its criticism of the lower court, stating:
“The impugned order opens itself up for criticism at many levels… The Trial Court indulges in findings which are both presumptuous and objectionable.”
It noted that the Family Court made sweeping and baseless assumptions, including:
“The petitioner is enjoying luxurious life and squeezing the money from the respondent.”
“She is closing her eyes and watching the marriage.”
These, the High Court said, were not only irrelevant but also contrary to the record, as even the respondent had admitted their marriage was arranged.
On Maintenance and Alimony
Though the appellant chose not to press for alimony in the appeal, the Court clarified an important point of law, citing the recent 2025 Supreme Court ruling in Sukhdev Singh v. Sukhbir Kaur:
“A spouse whose marriage has been declared void under Section 11 of the 1955 Act is entitled to seek alimony and maintenance by invoking Section 25.”
This affirms the right to maintenance even in void marriages, strengthening legal protection for women deceived into illegal unions.
“The respondent married the appellant during the lifetime of his first wife without being covered by the exception carved out under Section 29(2)… The respondent’s alleged customary divorce remained unproven… The Family Court failed in its duty.”
With these words, the High Court allowed the appeal, declared the marriage void, and set aside the Family Court’s order dated 19.11.2024.
