Second marriage contracted during lifetime of legally wedded wife.

This appeal has been filed by Lakshmi Ammal, the petitioner in O.P. No. 83 of 1955 on the file of the District Judge, Ramanathapuram at Madurai, against the order of the learned District Judge dismissing as not maintainable, her petition under sections 11 and 17 of the Hindu Marriage Act XXV of 1955 for declaring the marriage of her husband Ramaswami Naicker, the 1st respondent, with Krishnammal, the 2nd respondent, void and illegal.

The facts are briefly these: Lakshmi Ammal, the appellant, was admittedly the legally wedded wife of Ramaswami Naicker. She had no children. Ramaswami Naicker married the 2nd respondent, Krishnammal, as his second wife after Act XXV of 1955 had come into operation. Lakshmi Ammal wanted to get this marriage of her husband with Krishnammal declared void and illegal under section 17 of the Act by filing this application under section 11. Both the respondents contended that she had no right to file an application under section 11, as she was not “a party to the second marriage” sought to be declared illegal and void. Accepting this contention, the learned District Judge dismissed the petition with costs. Hence this appeal.

I have perused the records and heard the learned counsel on both sides. Mr. A. Sundaram Ayyar, for the appellant, and Mr. G. N. Chari, for the respondents, have argued the case fully and fairly. Mr. Sundaram Ayyar raised several contentions. The first was that as the marriage of Ramaswami Naicker with Krishnammal was solemnised during the continuance of his marriage with the appellant Lakshmi Ammal, and would be therefore null and void under sections 11 and 17, it would be unjust to deny the first wife the right to file an application under section 11 for declaring this marriage a nullity. He argued that the clause “party thereto” in section 11 would include, by inevitable extention, any other wife or husband of the parties to the illegal marriage and so a co-wife or co husband. I cannot agree. The phrase is “either party thereto”. That can only mean two persons, namely, the actual parties to the second marriage, Ramaswami Naicker and Krishnammal. Any marriage requires only two parties, and no third party. It will be contrary to sense and commonsense alike to bring in a co-wife, co-husband, concubine, keep, etc., on the ground that they also perform much the same functions, as the husband and wife, the parties to the void marriage. The fact is that the law does not take facts to mean the same things. Thus, a concubine may, for many purposes, no doubt, serve the purpose as a wife, but will not be a wife in law. So too, a co-wife cannot become “a wife under the second marriage”, for she is already a wife under the first marriage, and cannot be married again to her husband, at any rate without the intervention of a divorce and cessation of marriage for some time. The void second marriage was only between Krishnammal and Ramaswami Naicker, and the phrase “either party thereto” in section 11 can only apply to those two persons, and not to the appellant Lakshmi Ammal, the first wife, or to any others.

Then Mr. Sundaram Ayyar urged that the Hindu Marriage Act of 1955 was passed to benefit women, and save them from their husbands from indulging in polygamy and taking unto themselves other wives, and that this Act also made such second marriage void and illegal, and the children born of that second marriage illegitimate, and that, as the first wife had thus got valuable rights under the Act, and as all rights should have corresponding remedies, to work them out, as held by Broom in his Legal Maxims (see pages 117 and 118), and reinforced by the observations of Chief Justice Holt in an Anonymous case 1 , the first wife should be given the right to file an application under section 11 of the Act, as she will otherwise be left remediless. This argument too is unsustainable for two reasons. First of all, the first wife, the appellant, is not left remediless. She can file a suit, under the