Latest Judgement

1. INTRODUCTION

In a landmark family law and criminal law judgment, the Telangana High Court held that cohabitation and sexual relations with a woman under the false pretense of a lawful marriage — when the husband was still legally married to his first wife and failed to prove a valid customary divorce — amounts to rape under Indian law. The Court also declared the subsequent marriage void ab initio and clarified procedural and substantive points about customary divorce, statutory marriage requirements, consent, and remedies available to the aggrieved second wife.

2. FACTUAL BACKGROUND

The case arose from an appeal by a woman (the appellant) whose petition for annulment of marriage, maintenance, and other relief under Sections 5(i), 11, and 25 of the Hindu Marriage Act, 1955 (HMA) was dismissed by the Family Court. She alleged that her husband (the respondent) was still married to his first wife when he married her in 2018 and that he fraudulently misrepresented his marital status, leading her to believe the marriage was lawful. She also sought ₹1 crore in alimony.

The respondent claimed he had obtained a customary divorce from his first wife. He did not, however, provide evidence of such a divorce — either oral or documentary — nor prove that the customary practice followed was valid and applicable. The first wife was reportedly in a coma for years, but no concrete proof of divorce was produced.

3. LEGAL ISSUES BEFORE THE COURT

The High Court considered key questions, including:

i. Whether the second marriage was void ab initio due to the respondent’s ongoing first marriage without valid divorce.
ii. Whether the respondent’s failure to prove customary divorce rendered the marriage null under Sections 5(i) and 11 of the HMA.
iii. Whether consent to cohabitation, given under mistaken belief of a valid marriage, amounts to rape under *Sections 375 and 376 of the Indian Penal Code, 1860 (IPC) and equivalent provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS).
iv. Whether the procedural requirement of impleading the first wife as a co-respondent was fatal to the case.
v. Whether the appellant was entitled to alimony under Section 25 HMA even though the marriage was void.

4. HIGH COURT’S RULING AND REASONING

VOID MARRIAGE AND CUSTOMARY DIVORCE

The Court held that a marriage entered into while an earlier marriage subsists — without valid divorce — is void ab initio under Section 11 of the HMA, which applies when conditions in Section 5(i) are not met. Because the respondent failed to prove the existence of a valid customary divorce, the second marriage had no legal sanctity.
The judges stressed that customary rights or practices purporting to dissolve marriage must be proven with appropriate evidence, be it oral testimony or documentary proof. Unsupported claims of customary divorce do not satisfy the requirements of law.

5. CONSENT AND CRIMINAL LIABILITY

Critically, the High Court also found that the appellant’s consent to sexual intercourse was vitiated by fraud because she believed she was lawfully married. This vitiation falls under the “fourthly” clause of Section 375 IPC (and its counterpart in Section 63(d)(iv) of the BNS), which criminalizes sexual intercourse where the man knows he is not her husband and the woman consents only because she believes she is lawfully married to him.

Applying this principle, the Court held that the respondent’s conduct amounted to rape under Sections 375 and 376 IPC (and the corresponding BNS provisions), given that the appellant’s belief in the marriage’s legality was induced by deception.

6. IMPLEADMENT AND RELIEF

Although ordinarily the first wife would need to be impleaded as a co-respondent, the High Court dispensed with this requirement because she was incapacitated (in a coma) and unable to be joined in the proceedings.

The Court set aside the Family Court order, declared the marriage null and void, and allowed the appeal. It confirmed that a spouse from a void marriage remains entitled to claim alimony under Section 25 of the HMA, as upheld in Sukhdev Singh v. Sukhbir Kaur — that even in void marriages, the aggrieved spouse may receive maintenance.

7. LEGAL AND SOCIAL SIGNIFICANCE

THIS DECISION IS SIGNIFICANT FOR SEVERAL REASONS:

i. Affirmation of Void Marriages: It reiterates that statutory formalities for marriage and divorce cannot be bypassed by unproven customary practices. Without valid divorce, subsequent marriage is void by statute.
ii. Consent and Criminal Law Linkage: The judgment underscores that consent obtained under false belief of lawful marriage is not true consent, attracting criminal liability for rape under IPC/BNS. It aligns with Supreme Court precedent on the “fourthly” clause, which treats such cases as rape where deception about marital status exists.
iii. Protection of Women’s Rights: By allowing alimony even where the marriage is void, the Court protected the economic rights of a woman deceived into a marital relationship.
iv. Procedural Flexibility: The Court’s dispensation of impleadment in exceptional circumstances demonstrates judicial pragmatism in preventing procedural technicalities from defeating substantial justice.

8. CONCLUSION

The Telangana High Court’s ruling sends a strong message that deception about marital status and unproven customary divorce cannot justify cohabitation or sexual relations within the guise of lawful marriage. Such conduct not only invalidates the supposed marriage but may also constitute criminal rape when consent is induced by fraud. This judgment reinforces statutory safeguards under the Hindu Marriage Act, criminal law provisions on consent, and the courts’ role in upholding both substantive and procedural protections for vulnerable parties.

This article has been researched and written by Advocate Aarun Chanda, who practices divorce law in Mumbai and Pune. It is intended solely for academic purposes and should not be construed as legal advice. Readers are encouraged to consult a qualified advocate specializing in divorce cases for professional legal guidance.

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