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II (1990) DMC 277
N Sundaram, Bellie
S. Rangaraj
Versus
R.R. Subbayan And Ors.
Decided On : 22/1/1990
.
HINDU MARRIAGE ACT, 1955 - SECTION 15 - SPECIAL MARRIAGE ACT, 1954 - SECTION 18, 19 - SEVERANCE IN STATUS - LEGITIMACY OF CHILD - EFFECT OF REGISTRATION OF MARRIAGE UNDER SPECIAL MARRIAGE ACT - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
The first plaintiff married the fifth defendant, they had two children, the first defendant and the second defendant. The first plaintiff divorced the fifth defendant and married the fourth defendant. They had two children, the second plaintiff and the third defendant. The plaintiffs filed a suit for partition and separate possession of the joint family properties, claiming a one-third share each. The first defendant claimed that the marriage of the first plaintiff with the fourth defendant was invalid as it was performed before the lapse of one year from the date of the decree of divorce, and that the second plaintiff was not a legitimate son and could not claim an independent share. The court below held that the marriage was invalid and the second plaintiff was not legitimate, but granted him a one-third share based on Section 16(1) of the Hindu Marriage Act, 1955.
Finding of the Court:
The court held that the marriage between the first plaintiff and the fourth defendant was valid as the proviso to Section 15 of the Hindu Marriage Act, 1955, which prohibited remarriage within one year of divorce, was omitted by the Marriage Laws (Amendment) Act, 1976, and the second plaintiff was legitimate. However, the court held that the registration of the marriage under the Special Marriage Act, 1954, resulted in a severance in status as per Section 19 of the Act, and the second plaintiff could only claim a share in the share of his father, the first plaintiff.
Issues: 1. Whether the marriage of the first plaintiff with the fourth defendant was invalid due to the prohibition in Section 15 of the Hindu Marriage Act, 1955? 2. Whether the second plaintiff was a legitimate son of the first plaintiff? 3. Whether the registration of the marriage under the Special Marriage Act, 1954, resulted in a severance in status, affecting the property rights of the second plaintiff?
Ratio Decidendi: 1. The court held that the proviso to Section 15 of the Hindu Marriage Act, 1955, which prohibited remarriage within one year of divorce, was omitted by the Marriage Laws (Amendment) Act, 1976, and therefore the marriage between the first plaintiff and the fourth defendant was valid. 2. The court held that the second plaintiff was a legitimate son of the first plaintiff as the marriage between the first plaintiff and the fourth defendant was valid. 3. The court held that the registration of the marriage under the Special Marriage Act, 1954, resulted in a severance in status as per Section 19 of the Act, and the second plaintiff could only claim a share in the share of his father, the first plaintiff.
Final Decision: The court allowed the appeal in part and modified the decree of the court below. It granted a preliminary decree for partition of the joint family properties, allocating shares to the parties as one-fourth share to the first plaintiff, one-fourth share to the second plaintiff, and half share to the first defendant. Out of the share to be allotted to the first plaintiff, forty cents extent of properties were to be set apart to the fourth defendant in lieu of her maintenance. Provision was to be made for the third defendant for her maintenance, marriage expenses, and educational expenses at the time of passing the final decree. The parties were directed to bear their respective costs throughout.
Nainar Sundaram, J.
1. This first Appeal is by the first defendant in O.S. No. 267 of 1975 on the file of the Subordinate Judge, Coimbatore. The respondents herein areas follows : The first-respondent is the first-plaintiff; the second-respondent is the second-plaintiff; the third-respondent is the third-defendant and the fourth-respondent is the fourth-defendant. Defendants 2 and 5 in the suit have been given up in the Appeal. The parties shall be referred to by us as per their array in the suit for the sake of convenience. The plaintiffs laid the suit for partition and separate possession, each of the plaintiffs claiming a one-third share and they conceded the remaining one-third share for the first-defendant. The relationship amongst the parties is as follows : The first-plaintiff earlier married the fifth-defendant, she was divorced by a decree of divorce on 23-6-1961 in O.P. No. 54 of 1961 on the file of the Subordinate Judge, Coimbatore. During the subsistence of the marriage between the first-plaintiff and the fifth-defendant, the children born to them are the first-defendant, the son and the second-defendant, the daughter. The first-plaintiff married the fourth-defendant after the decree for divorce with regard to his marriage with the fifth-defendant. The children born out of the wedlock between the first-plaintiff and the fourth-defendant are the second-plaintiff, the son and the third-defendant, the daughter.
2. In our view, the real controversy in the suit centers around three moot questions and, in fact, they were the questions argued by the learned counsel appearing for the parties, and they are :
(i) Whether the marriage of the first-plaintiff with the fourth-defendant was invalid on account of the fact that it came to be solemnised before the lapse of one year after the decree for divorce was obtained with regard to the marriage of the first-plaintiff with the fifth-defendant and consequently the second-plaintiff could not claim the status of a legitimate son of the first-plaintiff and on that basis ask for an independent share in the entirety of the joint family properties;
(ii) Whether on account of the registration of the marriage between the first-plaintiff and the fourth-defendant under the Special Marriage Act 43 of 1954, hereinafter referred to as the Act 43 of 1954, there was a severance in status, as contemplated under Section 19 of Act 43 of 1954 and hence the second-plaintiff could not claim an independent one-third share in the entirety of the joint family properties and he could claim only a share in the share of his father-the first plaintiff in the entirety of the joint family properties, on the basis of their relationship;
(iii) Whether the properties other than the properties set out in Schedule 'B' to the plaint; claimed by the first-plaintiff as his self-acquisitions, are joint family properties available for division ?
3. The Court below, however, as per the pleadings, put forth by the parties, initially framed eleven issues and they have been supplemented by two more issues as follows :
"1. Whether the plaintiffs 1 and 2 are not entitled to 1/3rd share each in the plaint properties ?
2. Whether the marriage of the plaintiff with Srimathi Soundari is void ?
3. Whether the 2nd plaintiff is not the legitimate son of the plaintiff ?
4. Whether the plaintiff married his second wife under the Special Marriage Act ?
5. Whether there was any severence in status by operation of law?
6. Whether the first-plaintiff is liable to account for the income ?
7. Whether the first-plaintiff blended his professional income from the family lands ?
8. Whether there are other joint family properties except those set out in the plaint ?
9. Whether the suit is bad as one for partial partition ?
10. Whether the suit is bad for non-joinder of parties ?
11. To what relief ?
Additional Issue framed on 24-8-1978 :
What is the provision to be made for third defendant for her maintenance, marriage expenses and educational expenses ?
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