A petition for a declaration of nullity of a void marriage under Section 11 of the Hindu Marriage Act can be filed after the death of the other spouse.

ALLADI KUPPUSWAMI, J.

( 1 ) THIS appeal raises an interesting question, namely whether a spouse is entitled to apply under Section 11 of the Hindu Marriage Act for a declaration by a decree of nullity, that the marriage is null and void, after the death of the other spouse.

( 2 ) THE respondent herein is the second wife of one Narasappa who died in 1966. Narasappa married her in 1962 even during the lifetime of his first wife the appellant herein ; the second appellant being the son of Narasappa by her. The respondent file O. S. 35 of 1968 on the file of the Sub-Court, Adoni on her behalf and on behalf of her minor child for partition and division of her late husbands properties. The suit was dismissed on the ground that the marriage of the plaintiff was void as it took place during the lifetime of the first appellant herein. The legitimacy of the petitioners minor child could not be considered in the suit as there was no decree of nullity obtained by that time.

( 3 ) THE respondent herein therefore, filed, O. P. No. 45/69 under Section 11 of the Hindu Marriage Act praying for a decree of nullity of her marriage with Narasappa.

( 4 ) IT was contended on behalf of the appellants herein that the petition was not maintainable after the death of Narasappa. The Court below negatived that contention and held that the petition was maintainable and as there was no doubt that her marriage took place during the lifetime of another wife, a decree of nullity was passed. The appellants herein have preferred this appeal against the said decree.

( 5 ) UNDER Section 5 of the Hindu Marriage Act a marriage may be solemnised if the following conditions are fulfilled. (1) Neither party has spouse living at the time of the marriage : (2) neither party is an idiot or a lunatic at the time of the marriage : (3) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage : (4) the parties are not within the degrees of prohibited relationship : (5) the parties are not sapindas of each other : (6) Where the bride has not completed the age of eighteen years, the consent of her guardian in marriage , if any, has been obtained. Apart from this, Section 17 expressly provides that any marriage between two Hindus solemnised after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living. Under Section 11 any marriage solemnised 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 contravenes any one of the conditions specified in clauses (I), (iv) and (v) of Section 5. It is clear from these sections that the marriage of the respondent with Narasappa was null and void. It cannot also be doubted that if she had presented the petition during the lifetime of her husband the marriage would have been declared null and void by a decree of nullity , such a marriage contravenes Section 5 (1 ). The question for consideration is whether such a petition could be filed after the death of her husband.

( 6 ) TAKING into account the language of Section 11, it is seen that either party to a marriage is entitled to present a petition for a declaration by a decree of nullity that the marriage shall be null void if it contravenes Section 5 (I), (iv) and (v ). No condition is laid down in Section 11 that when a petition is presented by either party , the other party should also be living. We do not think it is justifiable to read into Section 11 any such condition. Reference was made to Section 12 of the Act which deals with voidable marriages. Section 12 provides that a voidable marriage may be annulled by a decree of nullity on any of the following grounds : (a) that the respondent was impotent at the time of the marriage and continued to be so untill the institution of the proceedings ; or (b) that the marriage is in contravention of the conditions specified

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