DECEPTIVE COHABITATION WITHOUT CUSTOMARY DIVORCE IS RAPE: TELANGANA HC

The appeal arose from a Sessions Court order rejecting a plea under Sections 11, 5, and 25 of the Hindu Marriage Act, 1955, read with Section 7 of the Family Courts Act, 1984, seeking a decree of nullity for the appellant's marriage with the respondent, as he was not divorced from his first wife at the time of their marriage. The appellant also sought Rs.1 crore as alimony. The Trial Court dismissed the petition, holding that the appellant was aware of the respondent's first marriage and failed to provide proof of his financial net worth to support her alimony claim.

The appellant claimed that the respondent concealed the fact of his existing marriage when they wed on 08.03.2018 at Lakshmi Narasimha Swamy Temple, Yadagirigutta, under Hindu rites. She alleged that the respondent was controlling, monitored her personal emails, messages, and WhatsApp chats, and misappropriated funds from her salary account. However, her primary ground for seeking nullity of marriage was the respondent's fraud in falsely claiming his first marriage was dissolved.

She further stated that while they were finalizing their mutual divorce terms, the respondent filed a petition for restitution of conjugal rights in 2019 before the Family Court at Visakhapatnam. She later discovered that in his anticipatory bail plea (Crl.M.P.No.2863 of 2020 in Crime No.978 of 2019), the respondent claimed his first marriage ended in 2008 through customary practices.

The appellant sought a decree of nullity and Rs.1 crore in alimony. The respondent denied the allegations, asserting that his first wife suffered from ill health and they were divorced by customary traditions with her family's consent. He claimed the appellant knew of his first marriage and had met his daughter. The respondent did not deny that their marriage, performed on 08.03.2018, was never registered.

The court held that a claim of customary divorce must be proven through documentary or oral evidence. It noted that the respondent failed to produce any proof of customary divorce from his first wife, despite being given opportunities. The respondent neither appeared nor filed evidence, showing his unwillingness to substantiate the claim.

In his petition for restitution of conjugal rights, the respondent submitted a copy of the appellant's divorce petition but provided no evidence of his alleged customary divorce. The court stated that the Trial Court should have framed an issue on whether the respondent properly pleaded and proved the existence of a valid customary divorce in accordance with his community's traditions.

The court noted that the respondent married the appellant while his first wife was still alive, without falling under the exception in Section 29(2) of the Hindu Marriage Act, 1955, regarding customary divorce. This created an irrefutable presumption that the respondent knowingly cohabited with the appellant under her mistaken belief that he was divorced.

The court held that Section 375 of the IPC and Section 63(d)(iv) of the BNS apply in cases where consent is based on a mistaken assumption. Under the fourth condition of Section 375 ("Fourthly"), rape is established when a man knows he is not the husband but the woman consents, believing him to be her lawful spouse.

The court criticized the Family Court for wrongly imputing constructive knowledge of the respondent's divorce to the appellant, without any basis. The Family Court assumed the appellant knew of the divorce because their marriage was a "love cum arranged marriage." However, this finding was irrelevant and contrary to the record, as the respondent himself claimed their marriage was arranged. The court also noted that the Family Court unfairly blamed the appellant for not verifying the respondent's divorce status despite being married for six months. Accordingly, the court set aside the impugned order dated 19.11.2024 and allowed the appeal.