Hyderabad: Cohabitating with a ‘second wife’, without obtaining divorce from the first, amounts to rape, the Telangana High Court has held. The second marriage is also null and void, under the Hindu Marriage Act, 1955, though the woman is entitled to alimony, the court observed.
The division bench of Justice Moushumi Bhattacharya and Justice B R Madhusudhan Rao based its ruling on the fact that the so-called second wife was of the false belief that her ‘husband’ is legally divorced, which he is not.
The court was hearing a woman’s appeal against a family court-cum-additional metropolitan sessions court order, dismissing her petition for annulment of marriage and alimony. She had contended before the trial court that the man had fraudulently misrepresented his marital status, leading her to believe that he was legally divorced. She had also sought alimony of Rs 1 crore.
The high court held that the man had not proven the existence of a customary divorce with his first wife, who is in a coma for the last 14 years, rendering his marriage with the second wife legally void under Section 5(i) read with Section 11 of the Hindu Marriage Act.
“Since the respondent knew at the material point of time that he had a wife living at the time of entering into physical relations with the appellant 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,” the high court division bench observed.
The court also criticised the trial court’s reasoning, noting that it failed to consider the invalidity of the marriage while denying alimony. The court termed the trial court’s findings “presumptuous and objectionable” as it unfairly imputed knowledge of the respondent’s marital status to the appellant without proper evidence.
The high court also found a contradiction in the family court’s ruling, stating that while alimony was denied on the ground that the appellant was a second wife, the court failed to determine whether the respondent’s first marriage was still valid. “The trial court failed to consider that the marriage between the appellant and the respondent, both Hindus, could not have been legally solemnized if the respondent had a spouse living at the time of the marriage,” the bench held.
Accordingly, the court set aside the trial court’s order, annulled the marriage, and held the respondent guilty of rape.
Additionally, the court ruled that the trial court’s finding that the appellant is disentitled to alimony as the second wife of the respondent is “wholly perverse.” Relying on the Supreme Court’s ruling in Sukhdev Singh Vs. Sukhbir Kaur, the court reaffirmed that a spouse from a void marriage is also entitled to claim alimony under Section 25 of the Hindu Marriage Act.
