Offence Of Bigamy Not Attracted When A Party Marries During Subsistence Of Ex Parte Divorce Decree Even If It Is Set Aside Later: Kerala HC

The Court held thus while noting that there was no legal barrier to solemnising a second marriage on the date of the second marriage.

The Court was hearing a petition filed by accused no. 2 and 3 under Section 482 of the Code of Criminal Procedure, 1973 to quash the criminal proceedings in a criminal case registered against them.

The bench of Justice A. Badharudeen observed, “Thus, it is to be held that, when there is the 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.”

Advocate Dr. Sebastian Champappilly appeared for the Appellant and Public Prosecutor Sanal P. Raj appeared for the Respondent.

Brief Facts-

It is the case of the prosecution that the 1st accused married under the Special Marriage Act. The case advanced by the complainant before the Magistrate Court was that, at the time when the marriage was solemnised the marriage between the 1st accused and the de facto complainant was subsisting and therefore, offence under Section 494 of the Indian Penal Code was committed by the 1st accused and accused Nos.2 and 3, who are the parents of the 1st accused also abetted commission of the crime. Accordingly, cognizance is taken for the offences punishable under Sections 494 and 109 of the IPC.

The Court considered whether a marriage solemnised during the 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.

The Court noted that as of the date of the second marriage, there was no legal marriage subsisting between the 1st accused and the 2nd respondent, in view of the operation of the ex parte decree of divorce.

The Court noted that the 1st accused remarried during the period when the ex parte divorce decree was in effect, and only after the time limit to challenge or appeal the decree had expired. According to the Court, it was not appropriate to hold the 1st accused criminally liable for bigamy since there was no valid marriage at the time of the second marriage.

Accordingly, the Court quashed the proceedings.

Cause Title: Joy Joseph v. State of Kerala (Neutral Citation: 2024/KER/52066)

Appearance:

Appellant: Adv. Dr. Sebastian Champappilly, Adv. Dr. Abraham P. Meachinkara, Adv. Annie George, Adv. George Cleetus, Adv. Margaret Maureen D Rose