The legal effects of a decree of nullity on the legitimacy and inheritance rights of children from void marriages, and the burden of proof in establishing the validity of a previous marriage for declaring a subsequent marriage as void.

1. This appeal was filed by Balwinder Kaur against the judgment and decree dated 8-2-2002, passed by Additional District Judge, Ludhiana, whereby marriage of the appellant with Gurmukh Singh respondent was declared as nullity under Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act ) having been performed in contravention of Section 5(i) of the Act, as she performed second marriage with the respondent during subsistence of her first marriage with one Jaswinder Singh.

2. During the pendency of appeal, appellant Balwinder Kaur died on 13-11-2002. From this marriage, there is one minor daughter, namely Jasmine Kaur, who was living with her mother. Now she has filed application (C.M. 17839-CII of 2006) to pursue the appeal filed by her mother, on the ground that with the subsistence of the impugned decree, her rights are going to be effected, therefore, she may be permitted to continue with the appeal.

3. Though no reply has been filed by the respondent to this application, but on the previous date, counsel for the respondent orally opposed this application on the plea that the proceedings under Section 11 of the Act are personal in nature and they stand abated with the death of one of the spouses and no legal representatives of the deceased spouse can be impleaded for continuing those proceedings. It was argued that even an appeal filed against a decree for dissolution of marriage would abate on the death of one of the parties, therefore, the application should not be allowed and the applicant-daughter should not be permitted to pursue the appeal.

4. On the other hand, counsel for the applicant submitted that the applicant is the daughter born from the marriage in question and she has a legal right to get herself impleaded after the death of her mother to pursue the appeal filed against the decree of nullity of marriage passed by the trial Court, as the dispute involves the question of her legitimacy and it will effect her legal and social rights. He submitted that though the legislation by enacting Section 16 of the Act has conferred a status of legitimate child to her as well as right to inherit the property by inheritance, but the right of a child from the void marriage to inherit the ancestral property has not been recognized. Counsel contended that if the applicant is not permitted to pursue the appeal filed by her mother, then she will not only be deprived of the ancestral property of her parents, but there will be a social stigma on her. Therefore, the applicant be permitted to pursue the appeal.

5. After considering the above submissions, I am of the opinion that after the death of Balwinder Kaur, the appeal filed by her will not abate and her daughter Jasmine Kaur is legally entitled to pursue the appeal. The decree dissolving the marriage determines the status of the parties and is equivalent to a judgment in rem. Similarly, a decree passed under Section 11 of the Act declaring the marriage nuillity will remain intact until and unless it is set aside in appeal, and with the death of one of the spouses, it will not stand automatically vacated. It is true that a right to file petition for divorce is a personal cause of action and such cause of action dies with the person, if one of the spouses expires during pendency of the trial, but after passing of the decree dissolving the marriage, the right to sue survives even after the death of one or more of the parties to the proceedings. A question came up for consideration before the Supreme Court in Smt. Yallawwa V/s. Smt. Shantavva, AIR 1997 SC 35, whether after passing of a decree of divorce ex parte or bipartite against the other spouse, the right to sue would survive for the spouse against whom such decree has been passed by the Court, and whether such a decree can be got set aside by the surviving spouse either by filing an appeal or by moving an application under Order IX, Rule 13, CPC if it is an ex parte decree. While answering this