JUDGMENT

SHARMA, J.— The question for decision in this appeal by special leave is whether a petition under Section 11 of the Hindu Marriage Act, 1955, for declaring the marriage of the petitioner as nullity is maintainable after the death of the petitioners spouse.

2. Appellant 1, hereinafter referred to as the Maharani, was married to Maharaja Rameshwarsinghji in 1960 and a daughter, appellant 2, was born of the wedlock in 1964. The relationship between the husband and the wife thereafter ceases to be cordial and the appellants started living in Bombay and the Maharaja within his estate in Madhya Pradesh. According to the case of respondent 1, the Maharaja decided to remarry without legally separating from the appellant Maharani. The respondent who is a relation of the Maharajas mother, respondent 2, was 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 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 appellants. The proceedings are still pending. In this background respondent 1 filed the present application under Section 11 of the Hindu Marriage Act for declaring her marriage as nullity. The Maharajas 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 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 be 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 Section 11. After its amendment in 1976 the section reads thus:

"11. Void marriages.- Any marriage solemnised 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 (i), (iv) 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 italicised 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 59th 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 6.1-A 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 Section 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