Civil Appeal No2215 of 1977
From the Judgement and Order dated 237 1976 of the Madhya Pradesh High Court in Misc
Appeal No23 of 1976
TUMetha SK Gambhir Vivek Gambhir and Surinder Karnail for the Appellants
Uday U Lalit and AGRatnaparkhi for the Respondents
The Judgement of the Courtwas delivered by SHAREMAJ
The question for decision in this appeal by special leave is whether a petition under s11 of the  for declaring the marriage of the petitioner as nullity is maintainable after the death of the petitioners  spouse
The appellent No 1 hereinafter referred to as the Maharani was marriedto Maharaja Rameshwarsighji in1960 and a daughter the appellant no2 was born of the wedlock in 1964
The relationship between the husband and the wife thereafter ceased to be cordial and the appellants started living in Bombay and the Maharaja within his estate in Madhya Pradesh
According to the case of the respondent no1 the Maharaja decided to remarry without legally separating from the appellant Maharani
The respondent who is a relation of the Maharaj s mother respondent No2 was misled both by theMaharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under the belief she married the Maharaja and the couple got several issues
In 1974 when the Maharaja died an application for grant of Letters of Administration was filed by the appellant Maharani and the respondent applied for probate on the basis of an alleged will which is denied by the appellant
The proceedings are still pending
In this background the respondent 197 No 1 filed the present application under section 11 of the for declaring her marriage as nullity
The Maharaja s mother was impleaded as the sole respondent
When the appellants learnt about the case they intervened and were joined as parties
The appellants challenged the maintainability of the application on the ground that the marriage could not be declared nullity after the death of the Maharaja
Both the trial court and the High Court have rejected the appellants  plea 4
mr Mehta the learned counsel for the appellants has contended that having regard to the very special relationship between husband and wife a marriage cannot dissolved or declared to be a nullity unless both of them are parties thereto
The marital status of a person stands on a much higher footing than other positions one may hold in the society or may have in relation to a property and cannot be allowed to be challenged lightly
The marriage of a person therefore cannot be declared as a nullity after his death when he does not have an opportunity to contest
He relied upon the language of s11
After its amendment in 1976 the section read this 11
Void marriages Any marriage solemnized after the commencement of this Act shall be null and void and may  on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses iiv and v of Section 5 emphasis added 5
The present proceeding was started in 1974 that is before the amendment and the section did not contain the words which have been underlined by us above
At that time all that was required was that the application had to be filed by a party to the marriage under challenge
On the plain language of the section as it stood then it could not be claimed that in absence of the other spouse as a party to the proceeding the same would not be maintainable
The argument of Mr Mehta is that the section had the same meaning before and after the amendment and the addition of the words in 1976 was merely clarificatory in nature
He strongly relied upon the 69th Report of the Law Commission 6
The Report recommended several amendments in the which led to the passing of the Amending Act of 1976
198 Reliance was placed on paragraph 61A of Chapter 6 of the Report which referred to the divergent views taken by the High Courts of Punjab and Madras on the question of maintainability of a petition under s11 after the death of the other spouse
The Commission thereafter observed thus We ought however to point out that in such a case the proper remedy is a suit under the Specific Relief Act
A petition under section 11 of the cannot be appropriate because the other spouse is an essential party to any such petition
This should be clarified by an amendment
 It has been argued before us that the view of the Madras High Court referred to in the Report is the correct view which was accepted by the Law Commission and since there was scope for controversy on the language of the section the legislature agreeing with the Law Commission added the aforementioned additional words by way of clarification
It is urged that such interpretation of the section did not lead to any injustice inasmuch as a suit for such a declaration was and is maintainable in the civil court
Reliance has also been placed on Rayden and Jackson s Law and Practice in Divorce and Family matters 15th Edn and several English cases in support of the proposition that on the death of a party to a matrimonial action the cause of action does not service
Reference has been made to the case of Butterfield vs Butterfield ILR Vol50 Calcutta 153 where after the wife had obtained a decree nisi for dissolution of her marriage the husband died
Following the English case of Stanhope vs Stanhope1886 11 PD103 it was held that the decree could not be confirmed
The learned counsel for the respondent relied upon certain observation made in other High Courts  judgments supporting his stand
He pointed out that having regard to the language of section 16 as it stood before the amendment the children born of the respondent would not have been entitled to the benefit of the section in the absence of a decree declaring the marriage of their parents as nullity and this was precisely the reason that the respondent had to commence the present litigation
We have considered the argument of Mr Mehta closely but do not find ourselves in a position to agree with him
It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status
The 199 question will be dependent upon the nature of the action and law governing the same
The provisions of the relevant statute relating to a proceeding in question will be very material
This aspect has been taken note of by Rayden and Jackson also in their book which has been relied upon by Mr Mehta
The passage at page 650 summarises the position in the following words Death of a party effect on suit
In many cases the fact of the death of one of the parties will render the process meaningless by reason of the circumstances that a marriage brought to an end by death could no longer be dissolved by an Act of the court
But there is no general rule that where one of the parties to a divorce suit has died the suit abates so that no further proceedings can be taken in it
It has been said that it is unhelpful to refer to abatement at all
The real question in such cases is whether where one of the parties to a divorce suit has died further proceedings in the suit can or cannot be taken
The answer to that question when it arises depends in all cases on two matters and in some cases also on a third
The first matter is the nature of the further proceedings sought to be taken
The second matter is the true construction of the relevant statutory provision or provisions or of a particular order made under them or both
The third matter is the applicability of section I I of the Law Reforms Miscellaneous Provisions Act 1934
The dispute issue in the present appeal has to be answered by considering the nature of the proceedings and the true construction of the relevant provisions of the 
Under the general law a child for being legitimate has to be born in lawful wedlock and if the marriage is void or declared to be so by the court it will necessarily have the effect of bastardising the child born of the parties to such a marriage
By enacting section 5i of the Act the legislature abolished polygamy which had always remained permissible and prevalent among the Hindus in the past
The Act was bringing about a very significant departure in this regard and taking into account the possibility of violation of the law in numerous cases atleast for sometime to come special provisions were included under s16 of the Act with the object of protecting the legitimacy of the children
The original section before the amendment of 1976 read as follows 16
Where a decree of nullity is granted in respect 200 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 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 possession of acquiring any such rights by reason of his not being the legitimate child of his parents
 It will be seen that the benefit of the section was confined to only such cases where a decree of nullity was granted under section 11 or s12
it did not extend to other cases
In 1976 s11 was amended by inserting the words against the other party and along with the same s16 was amended as it read now
the following words in section 16i  and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act enlarged the applicability of the beneficial provisions so as not to deny the same to children who are placed in circumstances similar to those of the present respondent
By the amendment in s11 in so far the cases where marriage can be declared as nullity the application of the rule protecting the legitimacy was widened
If that had not been done the children born of such marriage would have been deprived of the advantage on the death of either of the parents
By the simultaneous amendment of the two sections it can safely be deduced that the Parliament did not hold identical views as expressed by the Law Commission s Report
Even if it be assumed that the meaning of the section was not free from ambiguity the rule of beneficial construction is called for in ascertaining its meaning
The intention of the legislature in enacting s16 was to protect the legitimacy of the children who would have been 201 legitimate if the Act had not been passed in 1955
There is no reason to interpret s11 in a manner which would narrow down its field
With respect to the nature of the proceeding what the court has to do in an application under s11 is not bring about any change in the marital status of the parties
The effect of granting a decree of nullity is to discover the flaw in the marriage at the time of its performance and accordingly to grant a decree declaring it to be void
we therefore hold that an application under s11 before its amendment in 1976 was maintainable at the instance of a party to the marriage even after the death of the other spouse
Accordingly this appeal is dismissed with costs


Summary:
The appellant wife and the respondent husband filed a petition under section 13 B of the for divorce by mutual consent in the District Court and their statements were recorded
Subsequently the appellant filed an application in the Court for dismissal of the petition stating that she was not willing to be a party to the petition and that her statement was obtained under threat and pressure of husband
The District Judge dismissed the petition but on appeal the High Court reversed the order of the District Judge and granted a decree of divorce by holding that the consent to a petition for divorce by mutual consent cannot be unilaterally withdrawn and such a withdrawal would not take away the jurisdiction of the Court if the consent was otherwise free and since the wife s consent was without any force fraud or undue influence she was bound by the consent
Hence this appeal by the wife
Allowing the appeal and setting aside the decree of divorce this Court HELD 1
An analysis of Section 13 B makes it apparent that the filing of the petition under section 13 Bl with mutual consent does not authorise the Court to make a decree for divorce
The parties are required to make a joint motion under sub section 2 which should not be earlier than six months after the date of presentation of the petition 275 and not later than 18 months after the said date
This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force fraud or undue influence
The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true
If the Court is satisfied that the consent of the parties was not obtained by force fraud or undue influence and they have mutually agreed that the marriage should be dissolved it must pass a decree of divorce
280D 279C D 2
The period of waiting from 6 to 18 months referred to in section 13 B2 is intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends
In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition ie it may not be a party to the joint motion under sub section 2
This sub section requires the court to hear the Parties which means both the parties But the section does not provide that if there is a change of mind it should not be by one Party alone but by both
Therefore if one of the parties at that stage withdraws its consent the Court cannot pass a decree of divorce by mutual consent
If the Court is held to have the power to make a decree solely based on the initial petition it negates the whole idea of mutuality and consent for divorce
Mutua consent to the divorce is a sine qua non for passing a decree for divorce under section 13 B Mutual consent should continue till the divorce decree is Passed
it is a positive requirement for the Court to Pass a decree of divorce
280D 281AB KI Mohanan vs Jeejabai AIR 1988 Ker 28 Harcharan Kaur vs Nachhattar Singh AIR 1988 P  H 27 and Santosh Kumari vs Virendra Kumar AIR  approved
Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe AIR 1984 Bom
302 Smt
Chander Kanta vs Hans Kumar and Anr AIR 1989 De 4 73 and Meena Dutta vs Anirudh Dutta 1984 11 DMC 388 MP overruled
Halsbury Laws of England 4th Edn
13 para 645 Rayden on Divorce 12 Edn Vol 1 p 291 and Beales vs Beales  referred to
Section 13 B of the is in para materia with 276 Section 28 of the 
Sub Section 1 of section 13 B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties
There are three other requirements in sub section 1
Firstly it is necessary that immediately preceding the presentation of the petition the parties must have been living separately for a period of one year or more
The expression living separately  connotes not living like husband and wife
It has no reference to the place of living
The parties may live under the same roof by force of circumstances and yet they may not be living as husband and wife
The parties may be living in different houses and yet they could live as husband and wife
What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition
The second requirement is that they have not been able to live together  which indicates the concept of broken down marriage and it would not be possible to reconcile themselves
The third requirement is that they have mutually agreed that the marriage should be dissolved
278E H 279A B