Critical comments on two decision of Supreme Court

Mrs. Kunti Devi came to the High Court preferring anappeal on 8.12.1999
under Sec. 28 of the Hindu Marriage Act, 1955(known as The Act) challenging
the divorce (dissolution of marriage on the ground of desertion) granted to her
husband Mr. Som Raj, (Respondent) on 9.3.1999 with request for three reliefs,
namely, excusing the delay for filing of appeal, stay of the divorce and for an order
restraining her husband from re-marrying.
It is very interesting to observe that theHigh Court gave her all the reliefs.
First, after due notice to the respondents in the first appeal and hearingboth parties,
delay was excused on 14.8.2000. Subsequently on 24.11.2000, the High Court an
order passed that the husband shall not re-marry till further orders and finally the
operation of the decree of
of divorce.
Now the most absorbing and twisting legal saga of both parties begins.
The decree was set aside by the High Court on 1.5.2001.
The wife, alleging that her husband had his second marriage on 8.3.2001 with Mrs.
Usha, respondent-3 and therefore On 22.11.2001, she filed a complaint against him
for commission of the offence of bigamy Under Sec. 494 of the Ranbir Penal Code,
1989 read with Section 109 RPC (in short the 'RPC') by adding eight persons as coaccused including, father of the husband (A-2), father of Smt. Usha (A-4).

.
After accepting the humble submission of the husband, on 19.7.2000, that he had
already remarried after the decree of divorce was passed, . (during the pendency of
the appeal), the Division Bench quashed all the criminal proceedings relying on the
SC decision in Krishna Gopal Divedi v. Prabha Divedi (AIR 2002 SC 389).
In support of her appeal she argued that the second marriage was solemnized when
the order of stay was in operation and he knew that delay was excused with an order
of restraint passed. Therefore The decision in Krishna Gopal's case (supra) has no
application because in that case, there was no order of stay in operation.
In response, for the respondent-State submitted that the second marriage in fact was
solemnized before the order of stay and even before the appeal was admitted with no
reference to the alleged second marriage in the complaint apparently because she
knew that the marriage was solemnized. , In any event, according to him, she did not

disclose commission of any offence and the High Court has rightly exercised
jurisdiction under Section 561-A of the J&K Cr.P.C.
Finally allowing her appeal Lord Justices Arijit Pasayat and C.K. Thakker
sent back the record to P& H GHigh Court for a decision after accepting
her argument that there was no restrain order in Krishna Gopal' to apply
that decision to the present appeal against husband when he argued that he
had his second marriage before stay order was passed.
In Krishna Gopal Divedi v. Prabha Divedi (AIR 2002 SC 389)Mr. Krishna Gopal
Divedi, Appellant-Husband had his second with Ms. UshA on 25-5-1993 presumably
on the strength of the ex parte decree of divorce secured by him on 6-7-1990 from his
first wife though she says that she never had notice of the said decree or the
proceedings commenced by her husband.
Mean while the first wife succeeded in getting the ex parte decree set aside on 31-31994 and the fact remains that there is no decree of divorce as between the appellant
and his first wife ever since 31-3-1994.
Thereafter, first wife filed a complaint against the appellant on 28-3-1995 alleging
that the appellant has committed the offence under Section 494 of the IPC, quite
obviously in the opinion of the author that on setting aside the decree the earlier
marriage was revived to attract criminal prosecution against husband.
Accepting the appellants case that on the date when he conducted the second
marriage the first marriage was not subsisting in view of the ex parte decree which
continued in force on the said date, Lord Justices K. T. Thomas and R P Sethi,
in a brief order, declared that the criminal proceeding now pending against
the appellant is only an exercise of futility and waste of time the criminal
Court.
The criminal proceedings were dropped.
Very interestingly the respondent contended that the appellant is guilty of adultery at
least from the date 31-3-1994 but6 The SC did not look into that aspect since no
complaint has been filed by the first wife against the appellant on that score but gave
her liberty to move in that aspect.

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