Arham Jain
On 26 March, the Telangana High Court held that cohabitation based on deceit without a documented customary divorce from the first wife is equivalent to rape. This case was heard by a Division Bench comprising Justices BR Madhusudhan Rao and Moushumi Bhattacharya.
The appellant and respondent were married on 8th March, 2018, at the Lakshmi Narasimha Swamy Temple in Yadagirigutta. The respondent had concealed the existence of his surviving spouse. The appellant also claimed that the respondent was controlling by nature and had embezzled money from the appellant’s pay account. The appellant’s main argument for the nullity of the marriage was that the respondent deceived the appellant by falsely claiming that his prior marriage had ended.
The appellant complained that in 2019, while the parties were working to finalize the terms of their divorce by mutual consent, the respondent filed a petition for restitution of conjugal rights before the Visakhapatnam Family Court. The appellant learned that the respondent had petitioned the Metropolitan Sessions Judge in Hyderabad for anticipatory bail (Crl.M.P.No.2863 of 2020 in Crime No.978 of 2019). In the petition, the respondent claimed that his first marriage had been dissolved in 2008 in accordance with family customs.
As the respondent had not divorced his first wife, the appellant sought for a ruling declaring their marriage null and void and asking the respondent to pay alimony of Rs 1 Crore.
The Respondent refuted and denied the appellant’s arguments. According to the respondent, his first wife experienced severe illness, and the couple got a divorce in line with customs and traditions, with the first wife’s parents’ approval. In addition to being introduced to the respondent’s daughter from his previous marriage, the respondent claimed that the appellant was aware of the respondent’s prior marriage. The respondent acknowledged that his marriage to the appellant, which took place at Yadagirigutta, Telangana, on 8th March, 2018, was not registered.
The Sessions Court’s order under sections 11, 5, and 25 of the Hindu Marriage Act, 1955 read with section 7 of the Family Courts Act, 1984, for a decree of nullity of marriage solemnized between the appellant and the respondent—based on the fact that the respondent was not divorced from his first wife on the date of his marriage to the appellant—was the basis for the current appeal. The Appellant requested that the respondent be ordered to pay Rs. 1 crore in alimony under section 25 of the 1955 Act. Because the appellant knew about the respondent’s prior marriage and because she had neglected to provide any documentation demonstrating the respondent’s wealth to support her claim for permanent alimony, the Trial Court denied the appellant’s request for a decree declaring the marriage solemnized between the appellant and the respondent null and void.
The court stated that a pleading of customary divorce must be supported by oral or documentary proof after addressing limitations arguments.
It acknowledged that the respondent in this case had not shown any proof of the traditional divorce between him and his first wife. The contested ruling, dated November 19, 2024, states that the respondent failed to present and submit his testimony in spite of conditional directions. In other words, the respondent refused to provide evidence to support a usual divorce from his first wife or any other type of divorce. No other proof of the existence of such a usual practice or a document demonstrating that the divorce was in fact acquired by such a customary practice was provided, except than the respondent’s simple claim that the divorce was obtained through conventional practice as produced by the respondents.
In the petition for restitution of conjugal rights, the respondent did not present any documents pertaining to his usual divorce from his first wife, but he did file a copy of the decree issued in the appellant’s divorce case. As a result, the Trial Court had to decide whether the respondent had correctly argued that divorce was a common practice in the community to which they belonged and whether this practice was consistent with the manner and formalities of the attending customs.
The court stated that, the trial court should have additionally formed a question and considered it in light of the facts presented by the respondent to support the usual divorce for its satisfaction.
According to the court, the respondent married the appellant while his first wife was still alive, therefore he was not protected by the 1955 Act’s section 29(2) exemption to customary divorce. Due to the appellant’s erroneous impression that the respondent had divorced his first wife, there is an unassailable inference that the respondent deliberately cohabitated with her as her spouse starting on March 8, 2018.
“Specific circumstances and the necessary lack of volition in the act of rape or a mistaken assumption being the cause of the volition are envisaged in Section 375 of the IPC and Section 63(d)(iv) of the BNS,” the court stated.
The fourth condition of section 375, known as “Fourthly,” is attracted when the man knows that the person he rapes is not his spouse and that her consent is only given because she thinks he is her legally wedded spouse or that she is legally married to that person.
The appellant was given constructive information about the divorce between the respondent and his first wife by the Family Court, the court observed, without any justification for this determination. Given that the appellant and respondent were married in a “love cum arranged marriage,” the Trial Court presumes that the appellant was aware of the divorce.
Since the respondent explicitly indicated in his reply to the petition that their marriage was an arranged marriage, this conclusion is not only against the record but also wholly irrelevant to the nature of the marriage performed between the parties. The appellant was at fault, the Family Court finds, for failing to inquire about the respondent’s divorce despite their six months’ marriage.
Accordingly, the court set aside the impugned order dated 19.11.2024 and allowed the appeal.
Case Number- Family Court Appeal No.19 of 2025
Bench- Justices BR Madhusudhan Rao and Moushumi Bhattacharya.
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