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2012 Supreme(Kar) 64
High Court of Karnataka (Circuit Bench At Gulbarga)
N. KUMAR, J.
Laxmibai
Versus
Anasuya
C.R.P. No. 2015 of 2011
Decided on : 30-01-2012
For the Petitioner:Harshavardhan R. Malipatil, Advocate.
For the Respondent:Ashok S. Kinagi, Advocate.
Headnote:HINDU SUCCESSION ACT, 1956 - Section 10, Rule 1 & Section 7 & Hindu Marriage Act, Sections 5 & 11: [N. Kumar, J] Meaning of expression "Widow" - Held, Hindu Succession Act came to be enacted subsequent to enactment of Hindu Marriage Act. The Hindu Marriage Act exclusively deals with the law relating to the marriages. Succession Act deals with the right to the property. Therefore, in the absence of any express words in Succession Act, relationship of husband and wife, concept of marriage, legitimate and illegitimate children born out of such marriage voidness of marriage have to be gathered from provisions of Hindu Marriage Act. Therefore, when Class-I heir includes a widow, it means woman whose husband is dead and who has not married again, wife means woman married to a man. Without marriage there cannot be widow. That marriage should be valid marriage under law. Therefore, word widow mentioned among Class-I heirs is lady who was validly married under the provisions of Hindu Marriage Act and who has acquired the status of widow by virtue of death of her husband. If her marriage with person is void under law, on his death she would not get status of widow under Class-I of Schedule of Hindu Succession Act, 1956. The reason why R.1 of Section 10 refers to "if there are more widows than one, all the widows together shall take one share", is when the Hindu Succession Act came into force, as there was no prohibition for Hindu marrying more than one wife, it is possible that a male had married and was having more than one wife. After coming into force of the Act, the Hindu male dies leaving behind two wives whose marriage was valid before coming into operation of the Act, it was provided that those wives will take one share of her husband’s estate under Section 8 of the Act. Under the Hindu Marriage Act, the Parliament declared that if a person marries during the subsistence of an earlier marriage i.e., a person who marries while he has spouse living at the time of the marriage and such marriage is solemnised after the commencement of this Act, it shall be null and void and provisions of Sections 494 and 495 of Indian Penal Code applies to such marriage and is punishable under the Hindu Marriage Act. Certainly, the Parliament had no intention of conferring any right on the wife who is a party to the offence of bigamy and gave her a share in the property of her deceased husband. Any such interpretation to the provisions of the Hindu Succession Act would nullify the object with which the Hindu Marriage Act was enacted. In other words, it runs counter to the concepts of the bigamy being punishable and the marriage being void, which the Parliament wanted to eradicate by legislation.
Where plaintiff, second wife was born only after 1955 Act came into force and opposite party was married earlier to her, plaintiff’s marriage with deceased was null and void and she did not get the status of a wife. Therefore, she did not get the status of a widow so as to get the benefit under Section 10 of the Act. She had no right to seek partition and separate possession of her alleged half share against the second wife. She is not "heir" under the Hindus Succession Act.
1. It is the defendant’s revision petition filed challenging the order passed by the trial Court, which held neither the suit is hit under Section 9 of the Code of Civil Procedure nor the provisions of the Hindu Succession Act.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. O.S.No.167/2008 is filed by Anusuya W/o. Ningappa aged 45 years, against Laxmibai wife of Ningappa who was aged 60 years, on the date of the suit. The plaintiffs case was that Ningappa married Laxmibai, she was his first wife. As he did not have any children through Laxmibai, he married Anasuya, through her also he had no children. In other words, defendant is the first wife plaintiff is the second wife of Ningappa.
4. Ningappa died on 06.11.2007 intestate, issueless therefore, she filed the suit for partition and separate possession of her half share in the suit schedule properties. Which are more particularly described in paragraph No.2 of the plaint on the ground that both the widows have inherited his estate equally.
5. After service of summons, the defendant filed her written statement. She contended that age of the plaintiff is shown as 45 years. She contended that age of the plaintiff is shown as 45 years. It means that the plaintiff is born after 1956, Hindu Succession Act. Therefore, the second wife cannot claim any property of the deceased Ningappa. Therefore suit is barred by Hindu Succession Act and as we as Section 9 of CPC therefore the question of effecting a partition would not arise.
6. The trial Court framed the following issues:
1. Whether the plaintiff is entitled t half share in the suit property?
2. Whether the suit is hit by Section 9 of CPC and the provisions of Hindu Succession Act as contended in para 2 of the written statement?
3. Whether the defendant is entitled for compensatory cost of ’10,000/-from the plaintiff?
4. To what decree or order?
7. Issue No.2 dealing with the maintainability of the suit was treated as preliminary issue and both the counsel appearing for the parties were heard on preliminary issue.
8. The trial Court held Section 10 (1) of the Hindu Succession Act, 1956 categorically contemplates that the widow and if there are more widows than one, then all the widows together take one share in accordance with the rules enshrined in the Hindu Succession Act. Therefore, he was of the view that the suit is maintainable and plaintiff is entitled to her share in the suit schedule properties in terms of the Hindu Succession Act. Aggrieved by the said order passed by the trial Court, the defendant has preferred this revision petition.
9. The learned counsel for the petitioner Sri. Harshavarthan R. Malipatil, assailing the impugned order contends no doubt under Rule 1 of Section 10 of the Act, it is stated if there are more widows than one then all the windows together would be entitled to one share. In other words, on the day the Succession Act cannot into force, if there are two wives, if the husband dies, both the widows would take one share. The said provision had no application to a person claiming to be the second wife, after coming into force of the Act, becoming widow. Therefore, he submits the averments in the plaint do not show any cause of action for filing the suit for partition and therefore, the suit is liable to be dismissed.
10. Per contra, the learned counsel for the respondent Sri. Ashok S. Kinagi supported the impugned order.
11. In the light of the aforesaid facts and the rival contentions, the point that arises for consideration in this revision petition is as under:
Whether the second wife, whose marriage is hit by Section 5 of the Hindu Marriage Act, which a declared as void under Section 11 of the Act could be a widow under section 10 of the Act?
12. Under the Hindu Law, marriage is a Samskara and not a contract. Hindu law recognized eight forms of marriage. However, legislation of laws relating to Hindu Marriage began on the
