A petition under Section 11 of the Hindu Marriage Act for a declaration of nullity of marriage can be made by one spouse even after the death of the other.

1. Shrimati Krishni Devi was married to Mangat on December 30, 1956. Some children were born out of the wedlock. Mangat died in 1964. Before getting married with Shrimathi Krishni Devi, Mangat had another wife living by the name of Shrimati Tulsan Devi and had some children for her. After Mangats death, a dispute with regard to the heirs to his property arose. It was pleaded on behalf of Smt. Tulsan Devi and her children that the marriage of Smt. Krishni Devi with Mangat was a nullity as after the coming into force of the Hindu Marriage Act (hereinafter called the Act), Mangat could not contract a second marriage in the presence of his first wife living and, therefore, her children had no right to succeed to the estate of Mangat after his death. This plea was accepted by the revenue official who sanctioned the mutation of the land left by Mangat in favour of his children from Smt. Tulsan Devi only. Smt. Krishni Devi filed a petition under Section 11 of the Act for a decree of nullity of her marriage with Mangat on January 28, 1966. This petition was dismissed in limine by the Senior Subordinate Judge, Karnal, on April 18, 1966, on the ground that a petition under Section 11 of the Act could be filed only during the lifetime of the two spouses. Smt. Krishni Devi impleaded Smt. Tulsan Devi as the only respondent to her petition under Section 11 of the Act. Against that order, Smt. Krishni Devi filed F. A. O. 63-M of 1966, in this Court which was accepted by the learned Single Judge by order dated February 16, 1972. The order of the Trial Court has been set aside and the case has been remanded to it for decision on merits. Against that order, the present appeal under clause 10 of the Letters Patent has been filed by Smt. Tulsan Devi.

2. The learned counsel for the appellant has vehemently argued that a petition under Section 11 of the Act can be made only in the lifetime of the two spouses and cannot be made by one spouse after the death of the other. Section 11 of the Act reads as under:-

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"11. Any marriage solemnized after the commencement of this 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 contravenes any one of the conditions specified in clauses (i), (iv), and (V) of Section 5."

This section does not expressly state that such an application can be made when both the spouses are alive. In order to strengthen his argument, the learned counsel refers to Section 20(1) of the Act, which reads as under:-

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"20 (1). Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner and the other party to the marriage." The argument, is that it has to be stated in every petition that there is no collusion between the petitioner and the other party to the marriage. The learned counsel forgets that this requirement is subject to the nature of the case, that is, such a statement is to be made only if the nature of the case permits. If the nature of the case does not permit it is not necessary to make such an averments. When an application under Section 11 of the Act is filed by one spouse after the death of the other, the nature of the case does not permit any averment that there is no collusion between the petitioner and the other party to the marriage. By reference to Section 20(1) of the Act, it cannot be held that a petition under Section 11 of the Act cannot be filed by one spouse after the death of the other. This view is supported by the following observations of a Division Bench of the Madras High Court in Thulasi Ammal V/s. Gowri Ammal AIR 1964 Mad 118, while reversing the judgment of the learned Single Judge:-

- "An observation has been made by the learned Judge that a decree of nullity could be obtained only when both the spouses are alive. In this case, the husband Periaswami is d