2010 Supreme(Bom) 563

In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE N.A. BRITTO
Swaroopa Naik Vaigankar Nee Kalpana Gunaji Rane, Goa,
Versus
Deepa Prakash Naik, Goa. & Others
CIVIL APPLICATION (REVIEW) NO.9 OF 2009
Decided on : 13-04-2010

Headnote:Family Laws of Goa State - Articles 4(6), 11 and 30 - Dispute between wives on estate of deceased husband - Suit by first wife for direction to pay benefits due on death of husband - Second wife resisted claim - Contention - Deceased husband never told of any second wife to be only legal heir - Trial Court found first wife as sole and universal heir - Single Judge in appeal rejected submission of second wife as void as solemnized subsisting a marriage - Under Article 11 read with Article 4(6) of Family Laws single Judge took wrong conclusion disregarding Article 30 of Family Laws - Applicant entitled to succeed estate shares of first wife and to be half and son to be three-eighth, second wife only one-eighth - Dues payable in this ratio - Revision petition succeeds. - The second marriage, during the subsistence of the first marriage is void as if it never existed and this has been so provided by Article 11 of the Family Laws. However, Article 30 onwards provide certain exceptions so that the children of such marriage are not bastardized, and the second spouse is not thrown on the street in penury, if he or she (more often than not it must be she) contracts the second marriage in good faith. Article 31 expressly declares that the children of a void or voidable marriage shall always be legitimate except the children of prohibited marriages under Clauses (1) and (2) of Article 4. Article 30 again expressly provides that even a void marriage shall produce civil effects in favour of a spouse who contracts it in good faith. The only requirement is good faith of the spouse who marries for the second time. Article 30, as seen, deals with effects of a void or voidable marriage in favour of a spouse who marries for the second time in good faith. It has nothing to do with children. Likewise, Article 33 states that whenever marriage is declared void due to the fault of one of the spouses, the latter shall lose all the benefits availed from the other and, notwithstanding, he/she shall be bound to fulfil the promises which have been made to the other in the respective ante-nuptial contract. The other 6 articles in Chapter IV may be dealing with the effect of annulment in relation to the fate of minor children. There can be only one interpretation to Article 30 and no other that a void or voidable marriage produces civil effects in favour of a spouse who contracts it in good faith. In other words, the only qualification to claim civil effects is that the second marriage should be contracted in good faith. This interpretation, was given by the Single Judge in the judgment. Therefore, it appears that the Single Judge took a wrong direction via the misconception of the heading of Chapter IV and recorded a wrong conclusion in para 11 of the judgment, and this is an error apparent on the face of record which has cropped in disregarding the provision of Article 30 of the Family Laws. As said, and as stipulated by Article 30, a void marriage does create civil effects in favour of a spouse who contracts it in good faith and therefore the said error found in para 11 needs to be corrected and the view expressed in para 10 of the judgment, needs to be maintained i.e. "from bare reading of Article 30, it is clear that if a void or voidable marriage has been contracted bona fide by a spouse, it shall have civil effects with relation to that spouse". That is a correct interpretation given by the Judge to Article 30 of the Family Laws. The contents of para 10 and para 11 cannot coexist and in that light also there is an error apparent on the face of record which needs to be corrected.

       As already stated Chapter 4 deals with the effects of annulment specially with respect to the fate of minor children, but it also deals with the civil effects of void or voidable marriages, which have been contracted in good faith. In law, Article 30 appears to be an exception to Article 11 of the family laws with the view to give some rights to the second spouse who contracts the marriage in good faith that is without the knowledge of the first marriage, which otherwise would be void. The object behind Article 30 is to ensure some benefits in favour of a spouse who marries in good faith not knowing that her/his spouse was married earlier. It is not possible to accept the submission made on behalf of the first wile and son, that there was no finding given that marriage with the deceased was in good faith. The facts stated by her in her evidence were not at all seriously contested and therefore it was obvious that defendant had married in good faith, as stated by her, she having been told by him as well as her in-laws he was unmarried and, moreover it had to be seen that the plaintiff was not residing along with him at that time at their house. Consequently, the error in the judgment of the Court needs to be corrected in terms of para 10 with a clear conclusion that defendant No. 5 having contracted her second marriage in good faith with the deceased she was entitled to succeed to the estate left by him.

       The next question, therefore, is what would be her share? In the counter-claim filed by her, in the suit of the first wife and their son, she had claimed exclusive share to the estate left by him. Before the first Appellate Court a concession was made that her share would be 1/4th. Now further concession is made that her share would be 1/8th and this concession has been made with reference to Article 1235 of the Civil Code, 1867 which when translated reads as follows :

       "A man or a woman who remarries and has children or other descendants from a previous marriage who are successors, may not share with nor donate to the other spouse more than half of his/her assets at the time of the marriage, or of the assets acquired subsequently by donation or inheritance from his/her ascendants or other relatives."

       Article 1108 of the said Code states that the marriage as per the custom of the country consists in the communion between the spouses of all their properties, present and future, not excluded by law.

       A and B got married. A is husband and B is wife. They have one daughter from that marriage. B died. After death of B, A got married in second nuptial to C. The total estate of A and B could be considered as one unit. On account of moiety, 1/2 becomes share of A and 1/2 of B. In view of death of B, her moiety would pass to the daughter as her sole heir. After the death of B, A having married to C again communion operates but with restricted form and not as wide as in the case of first marriage and in case if the communion had operated fully, C would get equal share in 1/2 of A i.e. 1/4. But in view of Article 2135, the husband is not to share more than one half in what he held i.e. 1/2. Accordingly, he will share only 1/4 with the 2nd wife, so C will have 1/8 and husband A will have 1/4 = 2/8 + 1/8 = total 3/8. This 3/8 is to be shared amongst the children of both the marriages.

        As per Article 1235, the restriction is not only for sharing but even for disposing not more than half of the property, which he had at the time of marriage or which accrued to him by way of gift or inheritance of his ascendants or other relatives or any other title. It is stated that the case dealt by the Coimbra High Court was of disposition by way of will of disposable portion.

       Article 2135 when simplified and applied to the facts of the case would provide as follows :

       Prakash (deceased) and Deepa (plaintiff No. 2) shared their property in halves. They were half sharers under the doctrine of communion of properties. Therefore half of the property is hers i.e. Deepa, the first wife, and it has to go to her. As to the remaining 1/2 of the deceased Prakash, he could not have shared with Swaroopa, the second wife more than 1/2 of his property (1/2) i.e. he could not have shared more than 1/4. Having a share of 1/4th the share of 1/4th Swaroopa, the second wife will be 1/8th and the son of the first marriage will have a share of 3/8 from the share of the deceased father.

       In fact, the counsel on behalf of the respondents has not tried to contest the interpretation sought to be given to Article 1235 read with Article 1109 of the Civil Code, 1867 by the senior counsel find that the explanation and illustrations given by the senior counsel are correct and in consonance with Article 30 of the Family Laws, and as a result of that the shares of plaintiff No. 1 (the first wife) would be 1/2, that of plaintiff No. 2 will be 3/8 and of defendant No. 5 (the second wife) will be 1/8th. Accordingly the dues payable by the defendants/respondents No. 4, 5 and 6 upon the death of Prakash shall be paid to the plaintiffs and defendant No. 5 in the above shares. In case plaintiff No. 2 is still a minor, his hare shall be paid to plaintiff No. 1.

       As a result of the discussion the review petition succeeds. The judgment of the Court is accordingly corrected and the suit filed by the plaintiffs decreed on the above terms, with no order as to costs.