MAHARANI KUSUMKUMARI AND ANR.

A V.

SMT. KUSUMKUMARI JADEJA AND ANR.

FEBRUARY 1, 1991

[LAUT MOHAN SHARMA AND M.M. PUNCHHI; JJ.] B

Hindu Marriage Act; 1955: Section 11-Petition to declare , marriage a nullity-Whether maintainable after death of petitioner's .._____,,., spouse. · ·

Practice and Procedure: Proceedings involving issues relating to marital status-Question dependent upon nature of action and the law C governing the same-Provisions of the relevant statute very material.

The appellant No. 1-Maharani was married to a Maharaja in 1960 and the daughter-appellant No. 2 was born of the wedlock in 1964.

The relationship between the husband and the wife thereafter ceased to D be cordial and the appellant started living in Bombay and the Maharaja within his estate in Madhya Pradesh.

It is the case of the respondent No. 1 that the Maharaja decided to remarry without legally separating from the appellant. The respondent who is a relation of the Maharaja's mother, respondent No. 2, was E misled both by the Maharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under that belief she married the Maharaja and several issue~ were born of this wedlock.

In 1974 when the Maharaja died, on application tor grant of p Letters of Administration was filed by the appellant-Maharani> and the respondent No. 1 applied for probate on the basis of an alleged will. 'r- This will was denied by the appellants. These proceedings are still pending.

Respondent No. 1 filed an application under Section 11 of the G Hindu Marriage Act, 1955 for declaring her marriage as nullity, and the Maharaja's mother was impleaded as the sole respondent. The appellants intervened and were impleaded as parties.

The maintainability of the aforesaid application was challenged by the appellants on the ground that the marriage could not be declared H

SUPREME COURT REPOJUS [ 199l] l S.C.R.

a nullity after thedeatJt of the Maharaja but both the trial court and the High Court have rejected thJs p•ea,

Ip the ~PPeal t9 this Court, it w@s c,;@ntended on behalf of the appell@pts tht having regRrd to tile veq speci11.I reliltlonshlp between husbagd and wife, a marriage cannot be dissolved or declared to be a B 11, uJlity QPless b9tfl 9f them are parties thereto. The martml totwl Qf Q p.erl!i9D stands on a mJicb higtier footmg th!lD. other positiQ11, s <me may

oJd in tJle society and c~Qot be aU9wed to be cliallenged Ugbtly, and t!rnt h~ J11arrh1ge of a person, therefore, cannot be declpred as nullity after his 4eath when he does not have an opportnnity to conte11t.

Reliance was placed upon the hmgµagt:i of Se.diQP U of the Hindu M1t.rriage Act. -

- c

On behalf pf tlle respm1de11, t, it was poiDted m•t tbot boving regard to tbt:i Janggpge Pf S11mm 16, pf the llmdn J\'larriage Act ; is it stood befpre Us anie1uhmmt jn 19761 t.b4.! ddldren Jwrn of the respondent

WoYJ~ mi have l>een tlntithid to tile beP.filnt gf the t1edion In absence of a [) deree dech, trin~ tbe m1t.rriage Pf their 1nmmts Jis nullity, and this was preciseJy the reaon thpt the respqnde.ut had tt> immm.ence the present

iiti~*1tion. ·

Qp th@ gµ"tfpm whether a petition under Section 11 of the Hindu

M,:rriQge .t\t, 1955 fQr declaring the marriage of the petitioner RS. a nullity !~ mP.lntaiQ3ble atler tbe deatJt Qf the petitioiie.r's spouse.

JlismJ~ms th~ 3P.Ve""I' tJti~ CPm1,,

HELD: 1. An appliatioP Qpder Section U oftbe Hindu Marriage Act, 1955 before its amendrnent in 1976, was maintainable at the F instanc~ of PRI1Y to tJte nutrrbtge even idler the death of the other ( §pQlJ§e. l20Ulf. . ~

~' IP te insumt case, tbe proceeding was started in 1974 that is, befgre the amemhnent wa& madv 1n tbe llindu Marriage A.ct, 1955.

Section 11 did not onW.in the WfU'il!i "against the other party". At that G time all that wa$ required w11s On•t the application bad to be filed by a

1n•rty tp tbe marrt11ge under challenge. On the plain language of the

etf9P. Ii)§ it §tggd tbeQ, it 4,!0Uld not be claimed that in absence of the r otller §pgp~ as a party h> the proceedings, the same would not be matptafuable, [l9,7F)

3. Under the generQI h•w a child for being legitimate bas to be

....

M. KUSUMKUMARI v. K. JADEJA 19$

born in lawful wedlock and if the rm1rringe i~ void or decll, ll'ed to ~

.~· by the Court, Jt will necessarily have the effect of ba!!tardising tbe chUJI A born of the parties to such a marriage. [199F]

4. By enacting Section S(i) of the Hindu Marriage Act, 1955 the legislature abolished polygamy, Which bRd ftJWays remafne4 pel'IJlJ!!~ ' sible and prevalent among the Hindu!! iD tbe pt. Tbe Act w~ briPP'JB IJ about a very significant departtm! m thli!! rgar4; d ~~ mm ._....... account the possibility of violatbm. Pf tbe law ffl. IJµDJerQ~ ses at least for sometime to come spedal pmvfsion!! were Jn.cllJded mul@r Section 16 of the Act with the object of protecting the legitimacy of the 1 children. [199G] .....

5. The benefit of Section 16 was c0Qf:U1ed to ttlJIY SYcb c11ses wbere Q a decree of nullity was granted undQr Setion 11 or Section 12. It did not extend to other cases. In 1976 section U wits !Wended by inserting the ..,.,.,,.. words "against the other party" ond alPPgwith the same secti9D lfi w~

amended. '{200DJ

6. By the amendment in digp U, in so far the cases where marriage can be declared QS nulllty, the llppUC1Jtion of the rule protecting the legitimacy was widened. If tb1t bad ngt n done, the children born of such marriages would b1tve n demiv~ of the advantage on the death of either of the p1trents. Ry th@ l!!bnllJtap.~µs !lmen®Ien~ gf

the two sections it can safely be decl1u1ted tJlpt tbe PMUent did •mi ij hold identical fews as ereHed by tbe l@w C:9PP.Disfilm in Us ~h , Report. [200FG] •

7. The intention of tbe legilature bi enacting section 16 was to . protect the leptlmacy of the children wbg wool .. have been legitimate if

~· the Act bad not been passed m 19SS. [iOOR) F 8. There is no re8$0n to fpterprtit Sllction 11 m a manner which would narrow down its ffeld, With rilspet; t to tJ1e n@tm-e of tbe preed lngs, what the court bas to do in oo appUcatJon under section 1! is not to bring about any change hi the morital stat~ of the parties. The effect of granting a decree of nullity is to disconr tbe f11nv in the m!ll'riage at the G time of its performane and accordil)gly tf) grt a !Jecree dectaring it to . be void. [201ABJ . ,

Butterfield v. /Jµ.ttf!rfi<!ld; J.L, R, (Vol. SO) Calcut~ 153 d Stanhope v. Stanhope, [1886) U P.J>, tro, d Law Commission of India, S9tb Report Chapter 6, pRra 6.11\ referred to.

9. It is .not correct to suggest that one uniform rule shallapply for deciding the maintainability of all proceedings involving issues relating . .te mm itBI st8tuS~ The--question will be dependent QR9D 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. [198H-199A]

Rayden and Jackson's Law and Practice in Divorce and Family Ma.tters, (15th Edn.) p. 650, referred to.

',,,_...- CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2215 of 1977.

From the Judgment and Order dated 23.7.1976 of the Madhya Pradesh High Court ii1 Misc. Appeal No. 23 of 1976.

T.U. Mehta, S.K. Gambhir, Vivek Gambhir and Surinder Karnail for the Appellants. ""(

D Uday'.U. Lalit and A.G. Ratnaparkhi for the Respondents:

The J udment of thi Court was delivered by

SHARMA, J. The question for decision in this appeal by special leave is whether a petition under s. 11 of the Hindu Marriage Act, . >-- E 1955, for declaring the marriage of the petitioner as nullity is maintain-

'G

able after the death of the petitioner's spouse.

2. The appellant no. 1, hereinafter referred to as the Maharani, was married to Maharaja Rameshwarsillghji in 1960 and a daughter, the appellant no. 2, was born of the wedlock in 1964. The relationship between the husband and the wife thereafter ceased to be cordial and '-f the appellants started living in Bombay and the Maharaja within his~ estate in Madhya Pradesh. According to the case of the respondent no: 1, the Mafiaraja decided to remarry without legally .separating :from the appellant Maharani. The respondent who is a relation of the

Mah, araja's mother, respondent no. 2, was misled both by the

-Mahraja 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 r Maharaja died, an application for grant of Letters.of Administration was filed by the appellant Maharani; and the respondent applied for

1probate on.the basis '?fan alleged will which is denied by.the appellant.

The •proceec:Ungs .are still e_endin~ n this bakgrund the respondent

....

~·._

---<.

. '

no. 1 filed the present application under s. 11 of the Hindu Marriage Act 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.

3. The appellants challenged the maintainability of the application on the ground that the marriage could not be declared nulllty 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 be dissolved or decJared to be a nullity unless both of them are parties thereto. The marital status of a C '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 s. U. After D its amendment in 1976 the sectioo reads thus:

"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 E if it_ contravenes any one of the conditions specified in clauses (i), (iv) and (v) ofSection5."

(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 J1 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 tll.e section as it stood then, it could ilot be elaimed 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 G 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 Hindu Marriage Act which led to the passing of the Amending Act of 1976.

Reliance was placed on paragraph 6: lA 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 s. 11 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 Hindu Marriage Act 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 rt(ferred to in the Report is the correct view which was accepted by the Law Commission, and since the-re was scope for controversy on the

lnguage of the section, the legislature agreeing'with the Law Commission added the aforementioned additional words by way of clarification. It is urged that such an interpretation of the section did not lead to any injustice inasmuch as a suit for su.ch 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 survive. Reference has been made to the case of Butterfield v. Butterfield, I.LR. (Vol. 50) 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 v. Stanhope,

[ 1886] 11 P .D. 103, it was held that the decree could not be confirmed.

7. The learned counsel for the respondent relied upon certain observations made in other High Courts' judgments supporting his stand. He pointed out that having regard to the language of s. 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 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 .

. 8. 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 tpat one.uniform rule shall apply for deciding the maintainabi- H lity of all proceedings involving issues relating to marital status. The

M. KUSUMKUMARI v. K. ~ADEJA [SHARMA, J.). 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, tfie suit ab-ates, so that no further proceedings can be taken in it. It has been said that it is unhelpful to refer to Jlb.atement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, ful'.ther

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 Reform (Miscellaneous Provisions) Act 1934."

9. The disputed issue in the present appeal has to be answered by considering the nature of the proceedings and the true construction ol the relevant provisions of the Hindu Marriage Act. 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 s. S(i) 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 singificant departure in this regard; and taking into account the possibility of violation of-the law in numerous cases at least for sometime to come special provisions were included under s. 16 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 H

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 notwithstand- - ing 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 $een that the benefit of the section was confined to only such D cases where a decree of nullity was granted under s. 11 or s. 12. It did not extend to other cases. In 1976 s. 11 was amended by inserting the words "against the other party", and along with the same s. 16 was amended as it reads now. the following words ins. 16(i).

E " . . . 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."

erilarged the applicability of the beneficial provisions, so as not to deny the same to children who are pfaced in circumstances similar to those F of the present respondent. By the amendment in s. 11, 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 borri of such marriages 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 Parlia- G ment did not hold identical views as expressed by the Law Commission's Report. ·

10. 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 meanin_g. T!1e jntention of_ the l~Jature in enacting s. 16 was to protect the le-8.itimacy of the children who would have been

legitimate if the Act had not been passed in i955. There is no reason to A interprets. 11 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 s. 11 is not to 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,. B hold that an application under s. 11 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.

N.V.K.

Appeal dismissed.