“Consent Given Under Mistaken Belief of Valid Marriage Amounts to Rape” — Marriage is Void Without Proof of Customary Divorce: Telangana High Court

Respondent's Alleged Customary Divorce Remains Unproven; Marriage Declared Void and Consent for Cohabitation Rendered Illusory - In a landmark judgment Telangana High Courtset aside the Family Court's dismissal of a wife's plea for annulment of marriage and declared that the marriage was void as the husband failed to prove his alleged customary divorce. The Court, while pronouncing the verdict in the case titled Mudireddy Divya vs. Sulkuti Sivarama Reddy, laid down that, “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... 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 IPC and alternatively, under Sections 63 and 64 of the BNS.”

The Court categorically held that the respondent’s failure to prove his alleged customary divorce, combined with the appellant's lack of knowledge about his subsisting first marriage, rendered the subsequent marriage void and made the appellant a victim of rape under the false pretense of lawful matrimony.

Customary Divorce Cannot Be Presumed — It Must Be Proved Like Any Other Fact 

At the heart of the controversy was the appellant’s petition under Sections 11, 5, and 25 of the Hindu Marriage Act, 1955 read with Section 7 of the Family Courts Act, seeking annulment of her marriage with the respondent solemnized on 08.03.2018 at Yadagirigutta Temple, Telangana. The appellant alleged that the respondent suppressed the fact of his subsisting first marriage and later claimed a divorce through customary practices without ever producing proof. She also alleged that the respondent misappropriated her funds, exhibited controlling behavior, and subsequently deserted her. In her petition, the appellant also sought permanent alimony of ₹1 crore.

The respondent denied the allegations and, in his defense, claimed that his first marriage stood dissolved through a customary divorce, allegedly accepted by both families. However, crucially, as the Court pointed out, he neither produced oral nor documentary evidence of such a customary practice or proof of compliance with the rituals of such a divorce.

Justice Bhattacharya emphasized, “Notwithstanding the statutory recognition, the right recognized by custom must be proved by documentary or oral evidence.” The Court lamented that the Family Court had failed to even frame a proper issue concerning the existence of such a custom and its validity.

Referring to the Supreme Court’s decision in Subramani v. M. Chandralekha, (2005) 9 SCC 407, the Bench observed, “The Supreme Court held that no evidence was led to prove that the deed of dissolution of marriage was in conformity with the custom applicable to divorce in the community to which the parties belonged.” Following this reasoning, the Telangana High Court concluded that, “The respondent’s alleged customary divorce with his first wife remained unproved and unsubstantiated.”

Family Court’s Reasoning Based on Mere Assumptions and Prejudice — Findings Are Patently Perverse 

The Court came down heavily on the Family Court for making unwarranted assumptions about the appellant's knowledge of the respondent's first marriage. The Family Court had presumed that since it was a “love-cum-arranged marriage,” the appellant must have known about the first wife.

The High Court sternly held, “The Family Court imputes constructive knowledge to the appellant with regard to the divorce between the respondent and his first wife without any basis for reaching this conclusion.” The Family Court's observation that the appellant was “enjoying luxurious life and squeezing the money from the respondent” was labeled as “presumptuous and objectionable.”

The Division Bench also recorded that, “The Trial Court singularly 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.”

Consent Obtained Under Mistaken Belief of Valid Marriage is No Consent at All — Offence of Rape Made Out 

One of the most significant pronouncements in this judgment is the Court's finding that the appellant’s consent to cohabitation was vitiated by fraud. The Court applied the fourth clause of Section 375 IPC and the equivalent provision under the Bharatiya Nyaya Sanhita.

The Court observed, “Section 375 of the IPC and section 63 (d)(iv) of the BNS envisage specific situations where the consent is not real, but rather founded upon a mistaken assumption of lawful marriage.”

Placing reliance on Bhupinder Singh v. U.T. of Chandigarh, (2008) 8 SCC 531, the Court reiterated, “The Supreme Court applied the ‘Fourthly’ clause of section 375 of the IPC and held that the marriage between the complainant and the accused was void ab initio since the accused could not have lawfully married the complainant.”

The Telangana High Court then unequivocally held, “We are hence of the considered view that the respondent committed rape on the appellant under the false pretext of being lawfully-wedded to the appellant.”

Non-Impleadment of First Wife Not Fatal to the Petition 

The Court also dealt with the Family Court's objection regarding non-impleadment of the respondent’s first wife as a co-respondent. The Bench clarified that Rule 8(3) of the Andhra Pradesh Hindu Marriage Rules did not mandate impleadment where the issue was purely legal and where the first wife was not in a condition to participate, given that she was comatose.

The Court explained, “This is not a case where the respondent’s first wife would be required to be heard for preserving the principles of natural justice. We must also take a practical view of the situation, since admittedly, the respondent’s first wife has been in a state of coma for a while.”

Spouse from Void Marriage Not Precluded From Seeking Maintenance 

While the appellant eventually did not press for alimony during the appeal, the Court made an important legal affirmation that, “There is no embargo to grant of maintenance to a second wife.” Relying on the recent ruling of Sukhdev Singh v. Sukhbir Kaur, (2025 INSC 197), the Court held that even a spouse from a void marriage is entitled to seek maintenance under Section 25 of the Hindu Marriage Act.

Respondent’s Conduct Shows Desertion — Remained Absent Throughout 
The Court also noted that the respondent had previously filed a petition for restitution of conjugal rights (O.P.No.1865 of 2019) but allowed it to lapse for default and never made any genuine attempt to contest the annulment petition or the present appeal.

Justice Bhattacharya pointedly observed, “The respondent has made no effort to contest the Appeal or pursue the proceedings for restitution of conjugal rights filed before the Additional Family Court at Visakhapatnam.”

Concluding emphatically, the Bench declared, “We accordingly deem it fit to set aside the impugned order dated 19.11.2024. The reasons for doing so are stated in the paragraphs above.”

The appeal was allowed, and the marriage was declared void under Section 11 of the Hindu Marriage Act. The judgment reaffirms that false claims of customary divorce without evidence cannot circumvent the statutory protection available under the Hindu Marriage Act and the criminal liability under penal law.

Date of Decision: 26th March 2025