A third party can challenge the validity of a void marriage even after the death of the spouses, and a civil court has jurisdiction to entertain a suit for declaration of a void marriage.

( 1 ) DISSENTING with a decision reported in Smt. Sheelwati v. Smt. Ram Nandani (AIR 1981 All 42), Honble B. N. Sapru, J. has referred the following question: "whether the view taken in Smt. Sheelwati v. Smt. Ram Nandani (AIR 1981 Allahabad 42) is correct in so far as it lays down that the validity of a void marriage being in contravention of the provisions of Setcion 5 (i) read with Section 11 of the Hindu Marriage Act cannot be gone into at the instance of a third aggrieved party after the death of the spouses to the marriage. "

( 2 ) THE relevant facts which led to the above reference have been noted by the learned Judge in his judgment. It appears that Smt. Ram Pyari, the appellant, moved an application for grant of a succession certificate before the District Judge, Kumaun to the assets of her husband Tula Ram. It was alleged that the applicant Smt Ram Pyari was married to Tula Ram and that he having died without leaving any issue, she was entitled to the succession certificate.

( 3 ) THE objectors, who were kith and kin of Tula Ram, pleaded that Smt. Ram Pyari was not the legally wedded wife of Tula Ram and she was not entitled to the grant of the succession certificate. The learned District Judge rejected the application on April 10, 1973, Against that judgment the present appeal was filed.

( 4 ) CHALLENGING the judgment of the learned District Judge, the appellants learned counsel argued that in the proceeding for the grant of a succession certificate consequent on the death of Tula ram, the validity of marriage of Tula Ram with Smt. Ram Pyari could not be questioned. The submission was that a marriage on the ground of breach of Section 5 (i) of the Hindu Marriage act can be set aside only at the instance of one of the spouses and if no application for declaration of the marriage is made by either of the spouses, the marriage becomes immune from challenge. For this submission reliance had been placed on the decision of Smt. Sheelwati v. Smt. Ram Nandani (AIR 1981 All 42) (supra) in which the learned Judge held that no third person can treat the marriage to be void and as such it cannot be so adjudicated in any suit or proceeding. Honble B. N, Sapru, J. , held doubtful about the correctness of the view taken in this case.

( 5 ) A brief resume of the relevant provisions of the Hindu Marriage Act would show that Section 5 (i) lays down that the marriage may be solemnized between any two Hindus, if neither party has a spouse at the time of the marriage. This section had been introduced by the Parliament with a view to prohibit bigamy. Before enactment of the Hindu Marriage Act there was no such prohibition in the pure Hindu Law. Section 11 of the Act provides that a marriage between any two Hindus, if it contravenes the conditions specified in Clauses (i), (iv) and (v) of Section 5 and if it is solemnized after the commencement of the Act, the same shall be null and void. Section 12 of the Hindu Marriage Act deals with voidable marriages whether solemnized before or after the commencement of this Act. It provides that a voidable marriage may be annulled by a decree of nullity on any of the grounds mentioned in this provision. What is Important at this place to note is that a voidable marriage can be annulled by a decree of nullity only when an application to that effect is moved under the Act by one of the parties to the marriage. Section 27 further provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living and the provisions of Sections 494 and 495 of the Penal Code shall apply accordingly. In other words, this section imposes punishment for the offence of bigamy. Section 19 deals with the Court to which petitions contemplated by Hindu Marriage Act can be moved.

( 6 ) SECTION 11 of the Hindu Marriage Act was amended in 1976 on the recommendation of the law Commission. By this amendment the Par