A petition for nullity of marriage can be maintained by a spouse even after the death of the other spouse. The legitimacy of children born from a void marriage is not affected by the death of the spouse before the grant of a decree of nullity.

JUDGMENT :- This civil miscellaneous second appeal is brought before this court by one Ponnuthayee Animal, widow of Veerabadra Pillai, in the following circumstances : Veerabadra Pillai has a daughter by another wife. This daughter filed a suit for partition in O. S. No. 25 of 1969. In that suit Ponnuthayee Ammal figured as a party. One of the issues in that suit was whether her marriage with Veerabadra Pillai was void, it having been contracted during the subsistence of an earlier marriage. The finding was that the marriage was void for that reason.

2. Ponnuthayee Ammal had children by Veerabadra Pillai. She was anxious to legitimize them, but it was possible to obtain legitimization only if her marriage with Veerabadra Pillai were declared a nullity under the Hindu Marriage Act, 1965. The finding in a collateral suit would not avail the children.

3. It is in these circumstances that Ponnuthayee filed an independent proceeding O. P. No. 36 of 1974 under Sections 5 (1), 11 and 16 of the Hindu Marriage Act, 1955, for a decree for nullity of marriage on the basis that her husband had contracted the marriage with the petitioner during the subsistence of an earlier marriage. At the time this petition was filed, the husband was dead and gone. She however impleaded the daughter by the first wife as the defendant. The learned Subordinate Judge went into the merits of the petition, and, allowing the

petition, granted a decree for nullity. He rejected the contention raised by the respondent that a petition for nullity by the wife is not maintainable over the dead body of the husband and that an application under S. 11 of the Hindu Marriage Act can only be maintained as against a husband living. The learned Judge rejected this contention relying upon certain observations of a Division Bench of this court consisting of Srinivasan and Venkatadri JJ. in Thulasi Ammal v. Gowriammal, AIR 1964 Mad 118.

4. Against the decision of the learned Subordinate Judge, the respondent filed an appeal on the one and only ground that the petition for nullity was not maintainable having been filed by the wife after the death of the husband. The learned Additional District Judge of Madurai accepted the contention put forward by the respondent and allowed the appeal and set aside the decree for nullity granted by the learned Subordinate Judge of Dindigul. The learned Additional District Judge seems to have regarded the observations made by Srinivasan and Venkatadri JJ. in Thulasi Ammal v. Gowri Ammal, AIR 1964 Mad 118, as in the nature of obiter dicta. Relying on certain other decisions of this court rendered by learned single Judges, the learned Additional District Judge held that an application by a spouse for declaring the marriage null and void would not lie unless it was filed during the lifetime of the other spouse. The decision of the learned District Judge is now questioned in this civil miscellaneous second appeal.

5. The matter indeed has now become academic by reason of the amendment made to the Hindu Marriage Act in S. 16. Section 16 has been newly amended by Section 11 of the Central Act 68 of 1976. Under this section, as amended, it is declared that notwithstanding that a marriage is null and void under S. 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 and whether or not a decree of nullity is granted in respect of that marriage under the Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. it will be seen that under the amended section any child of a void marriage shall be legitimate notwithstanding the fact that a decree of nullity had not been granted in respect of that marriage under the Hindu Marriage Act 1955. It is further provided under the amended section that the children of void marriages shall be regarded as legit