Introduction:
In a recent judgment, the Kerala High Court held that no penal consequences under Section 494 of the Indian Penal Code (IPC) would apply for solemnizing a second marriage during the period an ex parte divorce decree is in effect, even if that decree is later set aside. The case was brought by Vivek Joy against the State of Kerala, seeking to quash criminal proceedings alleging bigamy. The High Court’s decision clarifies the legal position regarding the status of marriages under an ex parte decree of divorce.
Arguments:
Vivek Joy, the petitioner, argued that the ex parte decree for divorce was granted on May 12, 2017. According to the petitioner, the complainant (his first wife) did not file a petition to set aside the ex parte decree or appeal within the statutory periods. The time to set aside the decree expired in June 2017, and the period to appeal expired in August 2017. The petitioner remarried on December 30, 2017, believing himself legally divorced.
Joy highlighted that the complainant filed a petition to set aside the ex parte decree on December 27, 2017, three days before his second marriage. Importantly, no notice of this petition was served on him or his lawyer. The ex parte decree was set aside on March 5, 2018. Joy contended that as no legal marriage subsisted on the date of his second marriage due to the ex parte decree, he could not be guilty of bigamy.
The State of Kerala, represented by Additional Advocate General, argued against the petitioner’s plea. The prosecution maintained that the second marriage constituted bigamy under Section 494 of the IPC because the first marriage was technically still in force until the ex parte decree was set aside. The complainant alleged that Joy’s second marriage, while their marriage was supposedly still valid, constituted bigamy, and that his parents abetted the offense.
Court’s Judgment:
Justice A. Badharudeen presided over the case, analyzing whether a marriage solemnized during the operation of an ex parte divorce decree constitutes bigamy if the decree is subsequently set aside. The Court concluded that no offense of bigamy occurs under these circumstances.
The judgment highlighted several key points:
– At the time of the second marriage, there was no legal marriage subsisting between Joy and the complainant due to the ex parte divorce decree.
– The petitioner had no knowledge of the petition to set aside the ex parte decree at the time of his second marriage.
– The complainant filed the petition to set aside the ex parte decree just three days before Joy’s second marriage, and no notice was served to him or his lawyer.
– By the time Joy remarried, the period for setting aside the ex parte decree and filing an appeal had expired.
Justice Badharudeen emphasized that there was no legal barrier to the second marriage on the date it was solemnized. Therefore, criminal culpability could not be fastened on Joy or his parents for the second marriage. The Court also noted that mutual divorce had since been obtained, reinforcing that there was no subsisting legal marriage at the time of the second marriage.
Consequently, the Court quashed the criminal proceedings against Joy and his parents, stating that no penal consequences under Sections 494 (bigamy) and 109 (abetment) of the IPC would be attracted.