KUNTI DEVI versus SOM RAJ AND ANR.

Citation: [2004] SUPP. 4 S.C.R. 632 · Decided: 23-09-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Leave Granted & Disposed off
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Judgment (excerpt)

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KUNTI DEVI 
v. 
SOM RAJ AND ANR. 
SEPTEMBER 23, 2004 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
Ranbir Penal Code, 1989 : 
Section 494 r/w Section 109-Bigamy-Second marriage during 
subsistence of a valid marriage-District Court passed a decree for dissolution 
of marriage on 9.3.1999-Appeal filed on 8.12.1999-High Court passed an 
order on 24.11.2000 that the husband shall not remarry till further orders-
Operation of decree passed by District Court stayed-Husband took a plea 
in appeal that he remarried after decree of divorce was passed but before 
the order of stay-Subsequently, decree of divorce set aside by the High 
Court-Wife filed a complaint alleging that the husband had contracted a 
second marriage during the subsistence of a valid marriage-High Court 
quashed the complaint-Correctness of-Held: The crucial question is when 
the second marriage took place-The dispute is regarding the exact date of 
second marriage~Hence, matter remitted back to High Court to determine 
the date of second marriage-J & K Criminal Procedure Code, 1989, S. 561 
A-Hindu Marriage Act, 1955, Ss. 9, 13 and 28-Code of Criminal Procedure, 
1973, s. 482. 
The appellant-wife filed a petition under Section 9 of the Hindu 
Marriage Act, 1955 for restitution of conjugal rights. The respondent-
husband filed a petition .under Section 13 of the Act, for a decree of 
dissolution of marriage. The District Court by a judgment dated 9.3.1999 
passed a decree for dissolution of marriage. The appellant-wife filed an 
appeal on 8-12-1999. On 24.11.2000 the High Court passed an order 
that the respondent-husband shall not remarry till further orders and 
the decree passed by the District Court was stayed. The respondent-
husband took a plea in the appeal that he had already remarried after 
the decree of divorce was passed but before the order of stay. 
Subsequently, the High Court set aside the decree of divorce. 
632 
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KUNTI DEVI v. SOM RAJ 
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The appellant-wife filed a complaint under Section 494 read with 
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Section 109 of the Ranbir Penal Code, 1989 alleging that the respondent-
husband had contracted a second marriage during the subsistence of a 
valid marriage. Placing reliance on Krishna Gopal Divedi v. Prabha Divedi, 
AIR 2002 SC 389 a Single Judge of the High Court quashed the complaint 
on the ground that after passing of the decree of divorce, and before the B 
same was set aside by the High Court, the husoacd's marriage was 
solemnized. Hence the appeal. 
Disposing of the appeal, the Court 
HELD : 1. The impugned order of the Single Judge does not refer 
to the order of stay passed by a Division Bench of the High Court and 
the effect of such an order. It is not in dispute that the order dated 
24.11.2000 clearly restrained the respondent-husban~ from remarriage 
and the operation of the decree of divorce was stayed. It proceeded on 
the basis that the second marriage of the husband took place on 8.3.2001 
and applying the ratio in Krishna Gopal 's case it was held that no offence 
was made out. The High Court proceeded on the basis as if the second 
marriage took place on 8.3.2001. There is a great deal of factual 
distinction between Krishna Gopal's case and the case at hand. In Krishna 
Gopal's case the factual position noticed by this Court goes to show that 
there was no order of stay restraining remarriage. There is a dispute, 
as presently raised by the respondent-husband, that the date of marriage 
was much ·before the date on which the order of stay was passed and 
subsequent to the date on which the decree for dissolution of marriage 
was passed. (636-G-H; 637-A-B) 
Krishna Gopal Divedi v. Prabha Divedi, AIR (2002) SC 389, held 
inapplicable. 
2. In view of the aforesaid factual controversy, this is a fit case 
where the matter needs to be reheard by the High Court. While 
considering the matter afresh, the effect of the order of stay dated 
--24.11.2000 passed by a Division Bench of the High Court shall be taken 
note of. Much would depend on the date when the second marriage took 
place. There is no dispute that the respondent-husband has remarried. 
The crucial question is when the remarriage took place. All these aspects 
are to be adjudicated by the High Court while dealing with the matter 
afresh. (637-C-D] 
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SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R. 
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
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1066 of 2004. 
From the Judgment and Order dated 26.3.20
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