Issues 1 and 2: Whether any knowledge can undo the effect of the subsisting earlier marriage of the

respondent? Whether or not the presumption of knowledge is perverse?

1. The counsel humbly submits that the Appellant had no prior knowledge of the subsisting earlier
marriage of the respondent and no amount of knowledge can undo the effect of the subsisting
earlier marriage of the respondent since the marriage between the Appellant and the Respondent
is void. Furthermore, the Counsel of the Appellant respectfully submits that presumption of
knowledge is perverse as it takes away the freedom of a party to contest the issue of bigamy and
provide the evidence considering the same.
2. Section 17 of the Hindu Marriage Act, r/w Sections 494 and 495 of the IPC lay down the
provisions for the act bigamy and render it as a prohibited Act. Accordingly, the section reads as
hereunder:
Section 17. Punishment of bigamy.—Any marriage between two Hindus (including Buddhist, Jaina
or Sikh) solemnized after the commencement of this Act is void if at the date of such marriage either
party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal
Code (45 of 1860) shall apply accordingly.

1. For an offence of bigamy to have been committed the following ingredients are required to be
proved before the court. These include- (i) the accused must have contracted first marriage (ii)
he/she must have married again (iii) the first marriage must be subsisting (that is no divorce has
taken place) and (iv) the first spouse must be living. The necessity to prove that the spouse from
the previous marriage is alive was laid down in the case of Pashaura Singh v. State of Punjab,
(2010) 11 SCC 749

2. Apart from these conditions, the court, in the case of S. Nagalingam v. Sivagami, (2001) 7 SCC
487. Also laid down that the importance of proving the validity of the subsequent marriage and
whether the same was conducted in compliance with all the respective legal and religious
traditions, practices and rituals or not.

3. Section 494 of the IPC states, “any person who already has a wife or husband living, further
proceeds to marry another person while being lawfully wedded to such wife or husband shall be
punished with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine. Moreover, such marriage shall be considered void in whatsoever
case.” Thus, where a person, has contracted a marriage with someone while already having been
married previously, and the spouse from such previous marriage is still existing, then the

 subsequent marriage shall account for the offence of bigamy and shall be deemed as void, in the
eyes of law.

4. Section 494 of the IPC does not extend in two situations, these situations can be deemed as
exceptions to the offence of bigamy.

Exceptions to Section 494:

1. The said provision does not extend to any individual whose marriage with their partner from
the prior marriage has been declared void by a court of competent jurisdiction.

2. The said provision does not extend to any individual who contracts a marriage during the
lifetime of their former partner wherein such partner at the time of such individual’s second
marriage was not heard of for a period of seven years or wherein there is no information of
them being alive. By virtue of presumption provided under Section 108 of the Indian
Evidence Act, 1872, it may be concluded that a person who has been missing for more than
seven years is presumed to be dead and that when the individual contracts a second
marriage, it shall be understood that no husband or wife is living at the time of the second
marriage and thus, the offence of bigamy is not constituted. The condition that is inclusive
of this exception is that the individual contracting the second marriage must, before the
second marriage takes place, inform the person they are about to marry about the facts to
the best of their knowledge regarding their previous partner.

5. When an individual does the act of bigamy by concealing the fact of their former marriage from
the person with whom they contract their second marriage with, then such individual becomes
liable under Section 495. Such individuals shall be consequently punished with imprisonment of
either description for a term which may extend up to ten years and shall be liable to fine or both.

6. Looking into the merits and circumstances of the instant case, it can be clearly determined that
the respondent, Ms. Sangeetha, was guilty of the offence of bigamy, as she contracted a second
marriage with the Appellant, Mr. Madhavan, while in a subsisting earlier marriage, with Mr.
Sekar/Osama and intentionally concealed the information of her subsisting previous marriage
from the Appellant. According to the undisputed facts of the case, it can be clearly determined
that all the necessary ingredients required to consider a particular act as an act of bigamy, have

 been duly fulfilled by the respondent and therefore the marriage between the Appellant and the
Respondent should be deemed void.

7. The Counsel humbly submits that the Respondent had contracted a first marriage with Sekar/
Osama and subsequently married the Appellant while her first marriage was still subsisting.
The validity of the second marriage can be proven on the basis of the undisputed facts of the
proposition which clearly state the marriage between the appellant and the respondent took
place according to the Hindu rites and rituals , followed by a reception in 2016.

8. Although Sekar/Osama converted his religion to Islam, intending to marry a third person (Mia),
assumed the practice of Talaq-e-biddat to divorce with the Respondent, that could not be
considered valid owing to two reasons. Firstly, the marriage was not deemed void by a decree
passed by a court of a competent jurisdiction and secondly, the marriage between the respondent
and her first spouse was governed under the provisions of the Hindu Marriage Act, performed
according to Hindu rituals and rites. Therefore an Islamic practice would render such a divorce
ineffective. The same was also upheld In the landmark case of Sarla Mudgal v Union of India
(1995), where the Apex Court stated that when two individuals marry each other as per the
provisions of a particular personal law then such marriage shall continue to be governed under
the same personal law irrespective of the fact that one of the individuals to the marriage has
converted to another religion. Therefore, the individual who converts to another religion and
attempts to or marries again during the subsistence of their first marriage will be held liable for
bigamy. Such individuals shall not escape the legal consequences as elucidated under Section
494 of the IPC.

9. The counsel humbly submits before the court that there is no clarity as to whether the subsisting
spouse of the Respondent is currently living or not. However, even if the first husband of the
Respondent is deemed or presumed to be dead, yet, neither of the exceptions under Section 494
of the Indian Penal Code apply in the instant case as they are conditioned on the requirement
that the person contracting a second marriage has duly informed, to the best of their ability, all
the information about their previous marriage to their subsequent spouse. Furthermore, the
concealment of such information also amounts to the invocation of the penal sanction laid down
under Section 495 of the Indian Penal Code.

10. It is clear from the facts of the instant case, that the marriage contracted between the Appellant
and the Respondent was in 2016, a year after the Appellant and Respondent entered into a
relationship with each other. It is pertinent to highlight in the instant case that the Appellant
arrived in the Chinnakonur Village, where the respondent was residing, only in 2015, after he
completed his education in Bangalore. The Appellant became aware of and close to the
respondent after he acquired a job in 2015 in the same school as the respondent. The subsiding

 earlier marriage of the Respondent took place much before the Appellant was residing in the
concerned village. This makes it clear that he did not possess any knowledge of the subsisting
existing marriage of the Respondent in any manner.

11. Accordingly, the counsel for the Appellant further contends that presumption of such knowledge
shall be perverse to the instant case, since concealment of information of the subsisting earlier
marriage of the respondent is clear from the facts of the case. Presumption of such knowledge
would violate the condition of the validity of the subsequent marriage of the Appellant and the
Respondent, essentially, since the same was conducted in light of the necessary Hindu rituals,
practices and customs.

Issue 3: Whether can a husband claim sole custody of a child, if the marriage is void?

1. The Counsel for the Appellant humbly states before the court that under the provisions of the
Hindu Religious laws, a husband can claim the sole custody of a child, even if the marriage is
void. The Counsel respectfully submits before the court that the Appellant is absolutely right in
his claim to acquire the sole custody of his daughter, Veni.

2. The custody of a child is covered within the ambit of The Hindu Minority and Guardianship Act
of 1956 under Section 6. Accordingly the section reads as hereunder:

Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of

the minor’s person as well as in respect of the minor’s property (excluding his or her
undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided
that the custody of a minor who has not completed the age of five years shall ordinarily be
with the mother;
(b) (b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and
after her, the father;

1. The Counsel humbly submits before the Court that although the nature of their marriage
between the Appellant and the Respondent is void, yet it does not imply that the child begotten
out of such marriage is illegitimate. The matrimonial relations existing between the concerned
parties to the instant dispute were sanctioned in accordance with the customary Hindu rites,
customs and practices and therefore shall be considered as a valid Hindu marriage although
void. Consequently it can be logically deducted that the child born out of the said marriage is
governed by Hindu customs and traditions.
2. In the case of Vidyadhari & Ors v. Sukhrana Bai & Ors. (2008), it was held by the Supreme
Court that the children born of second wedlock are entitled to a share in the property of their
father, though the second marriage itself is void. If an individual marries a second time during
the subsistence of his first marriage, the children born out of such wedlock will still be
legitimate. This was further upheld in the case of Indubai Jaydeo Pawar v. Draupada (2017
SCC OnLine Bom 2413) wherein it was stated that for the benefit of an illegitimate child and to

 expand the scope of application of the provisions of the Hindu Marriage Act, any child born to
parents who have duly undergone such rituals or formalities of performance of marriage which
are now void or voidable shall be deemed legitimate. In the case of Union of India v. V.R
Tripathi (2018 SCC OnLine SC 3097), the Apex court furthered the decision of the Bombay
High Court that was passed in the aforementioned case and affirmed the legitimacy of a child
born out of a void marriage. Thus, the daughter of the Appellant and the Respondent, although
having been born out of a void marriage (in light of the offence of bigamy committed by the
Respondent) will still be considered legitimate in the eyes of the law and shall duly fall within
the ambit of The Hindu Marriage Act and The Hindu Minority and Guardianships Act.

1. The counsel humbly requests the Court’s attention to the facts and circumstances of the instant
case. According to the timeline provided within the undisputed facts of the case, it can be
clearly identified that the age of the Appellant and Respondent’s daughter is five years and not
below. The said daughter was born in 2018, two years post the commencement of the marital
relations between the concerned parties. Since the present appeal has been filed in 2013,
therefore the Appellant’s daughter is above five years of age and therefore the Appellant, under
Section 6(a) of The Hindu Minority and Guardianship Act has the absolute right to claim for a
sole custody of the said child.

1. The counsel of the Appellant would further like to put on record that the Respondent has filed
the application of custody of the daughter of the said parties under the provisions of the
Domestic Violence Act, 2005. Under Section 21 of the said Act, while the court has the
discretion to award custodial rights to the mother, the same only allows for a temporary custody
and shall be in light of the domestic violence and abuse that has been administered to her by the
husband and/or the relatives of such husband. In the instant case, there is not instance of any
form of abuse on the part of the Appellant against the Respondent. Thus, the application of the
provisions of the Domestic Violence Act, 2005 do not apply in the instant case and therefore,
the Appellant has the right to claim for the sole custody of his daughter in the instant case.

Issue 4: Whether a wife can claim the right of residence on her mother-in-law’s property?
1. The Counsel for the Appellant humbly submits before the Hon’ble Court that a wife, according
to the provisions of the Domestic Violence Act, 2005 cannot claim a right of residence on her
mother-in-law’s property. Such claim of right of residence can only be allowed in cases of a
shared household, where the concerned property is exclusively owned by the father-in-law of
such wife of the husband.
2. The Hon’ble Supreme Court in the case of Satish Chander Ahuja Vs Sneha Ahuja, Civil Appeal
No. 2483/2020, clarified the rights of a woman in capacity of daughter-in-law for residence
order in the property, exclusively owned by her father-in-law subject to the house being a
shared household in which the daughter in law has lived in a domestic relationship with the
father-in-law.
3. The Apex Court in the aforementioned case has interpreted the term ‘shared household’ which
is defined under Section 2(s) of the Protection of Women against Domestic Violence Act of
2005. The right of residence provided under the Act to women ousted from the house or
prevented entry thereon has been envisaged qua “shared household” only. It is, therefore, safe to
state that as per the Act, a shared household would mean a house in which the aggrieved person
has lived or at any stage has lived along with the respondent in a domestic relationship i.e. a
relationship between two members who have lived together on account of being related by
consanguinity (by blood), marriage or through a relationship in the nature of marriage, adoption
or are family members.
4. While the decision expands the scope of the definition of the term ‘shared household’ and states
that the Respondent certainly would succeed in obtaining residence order in the dwelling place
and this authority would act as binding precedence and therefore this question remains no
longer res-integra. However the Court has clearly provided that the shared household so
mentioned herein should be exclusive owned by the father-in-law of the respondent seeking the
claim and does not extend to a property that is in the ownership of the mother-in-law.
5. In the instant case, while the Respondent seeks a claim of right of residence over the ‘shared
household’ in which the Appellant is cohabiting, the same cannot stand valid before the court of
law, primarily because the property is owned by the mother of the Appellant and is in her name.
Thus, even if it’s presumed that the Respondent was residing in the concerned property at any
instant point of time, during her marriage with the Appellant, she still would not be able to
claim the right of residence to such property. This Counsel also submits that this contention is
furthered by the fact that the nature of matrimonial relationship between the Appellant and the

Respondent is void ab initio as the latter has committed the offence of bigamy and married the
Appellant during a subsisting earlier marriage.