The requirement of a decree of nullity under Section 16 of the Hindu Marriage Act, 1955, is a necessary condition for the legitimacy of children born from void marriages.

JUDGMENT :- This Second Appeal raises the question of the interpretation of the provision for legitimacy of the children of void and voidable marriages contained in Section 16 of the Hindu Marriage Act 1955 (hereinafter called the Act). The prior facts necessary for a consideration of this Second appeal are briefly the following.

2. One Periaswami died in 1956 possessed of some properties. He had a wife Gowri Ammal, the 1st defendant, and Anandam, a minor son aged 5 years by the 1st defendant, who is the 2nd defendant. It is alleged that Periaswami married a second wife, Kannu Ammal, the 1st plaintiff. This marriage took place after the Hindu Marriage Act of 1955 (Central Act XXV of 1955) came into force. The 2nd plaintiff is the daughter of the 1st plaintiff, and was aged four months at the time when the suit was filed. The 1st and the 2nd plaintiffs claimed in the suit, out of which this Second appeal has arisen, partition and separate possession of one half share in the properties of the deceased Pariaswami. The defendants denied the factum of the marriage of the 1st plaintiff, and asserted that, in any event if the process of a marriage ceremony had taken place, it would be void under the provisions of Sec.5 of the Hindu Marriage Act 1955.

Both the trial court as well as the lower appellate court found that the 1st plaintiff was married to Periaswami in accordance with the rites prescribed under Hindu Law, but the marriage was void under Sec.5(i) of the Hindu Marriage Act 1955. However, the trial court was of the opinion that even though the marriage of the 1st plaintiff might be null and void, the issue of that marriage, the 2nd plaintiff, would be legitimate, and therefore, the second plaintiff would be entitled to 1/6th share in the properties of Periaswami. The learned Subordinate Judge of Mayuram, to whom the first and the second defendants appealed, confirmed the finding of the trial court about the factum of the marriage having taken place. On the question of the legitimacy of the second plaintiff, the lower appellate court held that on a proper construction of the principle enunciated in Sec.16 of the Act, the Second plaintiff should be deemed to be a legitimate child, and therefore the decision of the trial court was confirmed, and the appeal dismissed. The present Second appeal is filed by the 1st and the 2nd defendants.

3. Learned Counsel for the appellants drew my attention to the terms of Sec.16 of the Act which reads:

"Where a decree of nullity is granted in respect of any marriage under section 11 or Section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity:

Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing of acquiring any such rights by reason of his not being the legitimate child of his parents".

Section 11 refers to void marriages, and states that any marriage solemnized after the commencement of the Act shall be null and void, and may, on a petition presented by either party thereto, be so declared by a decree of nullity, if it contravened any one of the conditions specified in cls.(i), (iv) and (v) of Sec.5. Section 5, clause (i) states that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage. Clause (iv) of Section 5 states that the parties should not be within the degrees of prohibited relationship unless custom or usage governing each of them permits of a marriage betwe