MADRAS HIGH COURT
Gowri Ammal Vs Thulasi Ammal (Minor)
Hon’ble Judges:Ramakrishnan, J.
Second Appeal No. 660 of 1960. Date :- 5/7/1962
(1.) This Second Appeal raises the question of the interpretation of the provision for legitimacy of the children of void and voidable marriages contained in Section 16 of the Hindu Marriage Act 1955 (hereinafter called the Act). The prior facts necessary for a consideration of this, Second appeal are briefly the following.
(2.) One Periaswami died in 1956 possessed of Some properties. He had a wife Gowri Ammal, the 1st defendant, and Anandam, a minor son aged 5 years by the 1st defendant, who is the 2nd defendant. it is alleged that Periaswami married a second wife, Kannu Ammal, the 1st plaintiff. This marriage took place after the Hindu Marriage Act of 1955 (Central Act XXV of 1955) came into force. The 2nd plaintiff is the daughter of the 1st plaintiff, and was aged four months at the time when the suit was filed. The 1st and the 2nd plaintiffs claimed in the suit, out of which this Second appeal has arisen, partition and separate pos. session of one half share in the properties of the deceased Pariaswami. The defendants denied the factum of the marriage of the 1st plaintiff, and asserted that, in any event if the process of a marriage ceremony had taken place, it would be void under the provisions of Sec. 5 of the Hindu Marriage Act 1955. Both the trial court as well as the lower appellate court found that the 1st plaintiff was married to Periaswami in accordance with the rites prescribed under Hindu Law, but the marriage was void under Sec. 5(i) of the Hindu Marriage Act 1955. However, the trial court was of the opinion that even though the marriage of the 1st plaintiff might be null and void, the issue of that marriage, the 2nd plaintiff, would be legitimate, and therefore, the second plaintiff would be entitled to 1/6th shape in the properties of Periaswami. The learned Subordinate Judge of Mayuram, to whom the first and the second Defendants appealed, confirmed the finding of the trial court about the factum of the marriage having taken place. On the question of the legitimacy of the second plaintiff, the lower appellate court held that on a proper construction of the principle enunciated in Sec. 16 of the Act, the Second plain. tiff should be deemed to be a legitimate child, and there. fore the decision of the trial court was confirmed, and the appeal dismissed. The present Second appeal is filed by the 1st and the 2nd defendants.
(3.) learned Counsel for the appellants drew my attention to the terms of Sec. 16 of the Act which reads:
“Where a decree of nullity is granted in respect of any marriage under section 11 or Section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of, the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity. Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents”.
Section 11 refers to void marriages, and states that any marriage solemnized after the commencement of the Act shall be null and void, and may, on a petition presented by either party thereto, be so declared by a decree of nullity, if it contravened any one of the conditions specified in cls. (i), (iv) and (v) of Sec. 5. Section 5, clause (i) states that a marriage may be solemnized between any two, Hindus, if neither party has a spouse living at the time of the marriage. Clause (iv) of Section 5 states that the parties should not be within the degrees of prohibited relationship unless custom or usage governing each of them permits of a marriage between the two. Clause (v) refers to parties not being sapindas unless there is a custom or usage governing each of them which permits of a marriage, between the sapindas. Sec. 11 has two parts, one a declaratory part which declares what are void marriages under the Act; while the 2nd part prescribes that a petition has to be filed under the provisions of the Act for getting the nullity of such marriages declared. Sec. 12 refers to voidable marriages, and gives the grounds on which a marriage-can he declared voidable, and a decree of nullity thereafter passed in regard to it.
(4.) Obviously, the marriage of the 1st plaintiff, in this case, when another wife was alive came within the mischief of Sec. 5 clause (i) of the Act, and it is therefore a marriage void ipso jure, and not a voidable marriage, Section 16 of the Act provides that where a decree of nullity is granted in respect of any marriage under section 11 or Section 12 any child begotten or conceived before the decree is made……. shall be deemed to be their legitimate child notwithstanding the decree of nullity. The, question now for consideration is whether if one of the spouses is dead without a decree of nullity of marriage being obtained, and when in a subsequent dispute about succession to property, the marriage is found to be void under Sec. 11, the principle of legitimacy of the children laid down in Sec. 16 of the Act can be applied. Now, Sec. 16 of the Hindu Marriage Act, 1955 Is an adaptation but with a variation, of Section 9 of the English Matrimonial Causes Act, 1950 which is in the following terms:
“Where a decree of nullity is granted in respect of a voidable marriage, any child……. of the parties to the marriage…….. at the date of the decree shall be deemed to be their legitimate child notwithstanding the annulment.”
This section 9 of the English Act purported to be a substitution for section 7(2) of the earlier English Act of 1947 which read:
“Any child born of a marriage avoided pursuant to, paragraph (h) or (c) of the last foregoing sub-section shall he legitimate child of the parties thereto notwithstanding that the marriage is so avoided.”
Both the two sections of the English Act, confine the relief of legitimacy to children born of voidable marriages, and section 9 of the English Act made it a further requisite that a decree of nullity should be granted in regard to such a voidable marriage, before legitimacy can 13& statutorily conferred on the children. To complete the reference to the English enactments, on this question of legitimacy, there is also an enactment, Legitimacy Act, 1959 , section 2 of which provides that the child of a void marriage, whether born before or after the commencement of the Act, shall be treated as the legitimate child of his parents If at the time of the act of intercourse resulting in the birth, both or either of the parties reasonably believed that the marriage was valid.
(5.) The Indian legislature, however, seems to have decided to extend’ the benefit of statutory legitimacy, to children born also of void marriages, but retained the prerequisite recognised in section 9 of the English Act, viz., the passing of a decree of nullity, before this statutory benefit can be conferred on the children. No doubt, this will lead to, a certain anomaly. It is well known that a decree for nullity of marriage is a special provision found in legislation relating to Matrimonial Causes. The Hindu Marriage Act provides for such a decree being obtained by a proceeding under the Act. Thus for a decree of nullity under section 11, A petition has to he presented by either party to the marriage before the court having jurisdiction under the Act. For obtaining a decree of nullity under section 12 of the Act, similarly a petition has to be presented by one of the spouses. It would, therefore, follow that after the death of one of the spouses, a decree of nullity cannot be obtained. it will also, not be possible to get a decree of nullity in respect of a voidable marriage after the death of one or both the spouses because the right to avoid a marriage is given only to the parties to the marriage. On the other hand, in the case of a marriage which is ipso jure void under section 11 of the Act, in a collateral dispute relating to this succession to the property between the heirs of the parties to the marriages, an ordinary civil court other than a matrimonial court, can give a decision that the marriage was a void one but without passing a decree of nullity of the marriage. In such a case, section 16 of the Act can-not he applied; the children will not get the benefit of legitimacy, and will also lose the right to share in the property of their parents.
(6.) The lower appellate court considered that the intention of the Legislature to be inferred from the words of section 16, would appear to be that any child begotten or conceived of a union between parties to even a void marriage, must be deemed to be legitimate, if the child is begotten or conceived before a decree declaring the marriage as null and void is granted. In other words, it was prepared to go beyond the plain language of section 16, and grant legitimacy to children born of a void marriage, even where a decree of nullity has not been obtained in the lifetime of the parents.
(7.) A study of the sections of the English Acts which have undergone amendment from time to time, shows that where it was considered necessary to protect the interests of children by granting them legitimacy the Statute has been amended from time to time defining the limits for the purpose of the grant of such benefit. Where the statute defines the limits for that purpose in a particular way, the courts are bound to give effect to such limitation without travelling outside those limits on a presumed intention of the legislature, however great the hardship might be to the parties, it any (sic) other course is followed. it is obvious that the obtaining of a decree of nullity as a prerequisite to the grant of legitimacy to children, under section 16 of our Act is anomalous, and can work a great deal of hardship in some cases. Void Marriages Under section 5 of the Act cover polygamous marriages, marriages within prohibited degrees and sapinda marriages. many couples who have married in contravention of these provisions Would not have cared to go to the court in their life time to get their marriages annulled. The result is that their children being illegitimate will be deprived of succession to property, in a suit after the lifetime of the parents, at the instance of a third party. But, if for any reason, the couples in their life time decide to place the interest of their children above their own, and take the trouble of going to the matrimonial court and obtain a decree of nullity in regard to their marriages, the children are benefited. As observed already. in many cases, the concerned couples would not have gone to the court in their lifetime with the result that the benefit conferred under section 16 on their children would be-come illusory if the Indian legislature had followed S. 29 of the English Act, an anomaly of the present kind would not have arisen; but the Indian legislature having decided to proceed a step beyond the English Act so as to protect the children born also of void marriages in the same way as children born of voidable marriages, it would have been worth while to have anticipated the above anomaly and provide suitable safeguards therefor. Again, if polygamy is to be considered a greater, evil than sapinda marriages or marriages within the prohibited degree, it would be worth while to make a distinction between children born of polygamous marriages on the one hand, and the children born of parents who are sapindas or who are within the prohibited degree of relationship on the other. But the precise manner in which the anomaly should be rectified will be for the legislature to consider, in response to public opinion and sentiment among the Hindus. But what has been said above is sufficient to indicate the necessity for a suitable amendment to section 16 of the Act.
(8.) The learned counsel who appeared for the respondent argued that D. 1 was the person who brought about the 1st plaintiff’s marriage, and this would estop her from denying the validity of the marriage. But what renders the marriage invalid is a statutory bar, and there can be no estoppel against it. In any event such an estoppel can-not operate against D. 2.
(9.) In the result, the second appeal is allowed, and the decrees of both the courts are set aside and the plain. tiffs’ suit is dismissed. In the circumstances, however, there will be no order as to costs either in this court or in the two courts below. Leave granted.