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IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
SHEEL WATI - Appellant
Versus
RAM NANDANI - Respondents
Second Appeal 1127 Of 1976
Decided On : 11/12/1980
HINDU MARRIAGE ACT - NULLITY OF MARRIAGE - BIGAMY - JURISDICTION - DISTRICT COURT - DECREE OF NULLITY - THIRD PARTY - VOID MARRIAGE - SUBSISTING FACT - LEGITIMACY OF CHILDREN - SECTION 5 (I), 11, 12, 16, 17, 18 (B) - HINDU MARRIAGE ACT, 1955.
Fact of the Case:
The plaintiff, the widow of Suresh Chandra, filed a suit against the defendants, including her husband's younger brother, Promod Kumar, seeking maintenance from the estate of her husband. The plaintiff claimed that her marriage to Suresh Chandra was valid, while the defendants contended that it was null and void as Suresh Chandra had a wife living at the time of the marriage.
Finding of the Court:
The court held that the marriage between the plaintiff and Suresh Chandra was not null and void, even though it contravened the rule of monogamy prescribed by Section 5 (i) of the Hindu Marriage Act, 1955, as it had not been declared to be so by a decree of nullity passed by a District Court under Section 11 of the Act. The court further held that the plaintiff was entitled to maintenance from the estate of her husband, and that the defendant-respondent, Promod Kumar, was not exempted from the decree as he had an interest in the property even during the lifetime of his father.
Issues: 1. Whether the marriage between the plaintiff and Suresh Chandra was null and void, even though it had not been declared to be so by a decree of nullity passed by a District Court under Section 11 of the Hindu Marriage Act, 1955? 2. Whether the plaintiff was entitled to maintenance from the estate of her husband? 3. Whether the defendant-respondent, Promod Kumar, was exempted from the decree?
Ratio Decidendi: 1. The court held that a marriage, though null and void for contravening any of the conditions prescribed by Clauses (i), (iv) and (v) of Section 5 of the Act, has yet to be regarded a subsisting fact, and in that sense it cannot be said to be wholly non est in law, or a nullity, so long as it is is not declared to be null and void by a decree of Nullity of the District Court on a petition presented by either party thereto against the other party to me marriage. No third person can treat the marriage to be void or have it adjudged to be null and void in any other suit or proceeding unless it bus already been declared to be so by a decree of Nullity of a District Court in accordance with the procedure prescribed by and under the Act; the only exceptions being the case where the aggrived spouse of the first marriage on account of whose being living the second marriage is void, prosecutes the other spouse for being punished for bigamy under Section 406 or 495 of the Indian Penal Code, read with Section 17 of the Hindu Marriage Act; or the ease where the aggrieved spouse prosecutes the guilty spouse for a contravention of Clauses (iv) and (v) of Section 5 under Section 18 (b) of the Act. 2. The court held that the plaintiff was entitled to maintenance from the estate of her husband, as she had not received any part of the inheritance of her husband, and the whole of it was in the possession of the defendants, including the defendant respondent. 3. The court held that the defendant-respondent, Promod Kumar, was not exempted from the decree as he had an interest in the property even during the lifetime of his father Sant Prated.
Final Decision: The appeal was dismissed with costs. The court clarified that the entire suit of the plaintiff-respondent having been decreed by the trial court, which was confirmed by the lower appellate court, the precise reliefs decreed were - (1) recovery of Rs. 60/- p. m. as maintenance during the life of the plaintiff, against the two defendants, with a charge for the recovery of the same on the property detailed at the foot of the plaint; (2) recovery of Rs. 720/- as maintenance for one year preceding the date of suit with interest (the rate of which being unspecified is now specified as 6% p. a.) pendente lite and future; (3) recovery of maintenance pendente life at the said rate of Rs 60/- p. m. , the court-fees on which shall be recoverable in the course of execution proceedings, of course, in case it becomes necessary to execute the decree, and will in that event be ultimately borne by the defendants; (4) injunction against the defendants restraining there from preventing the plaintiff from residing in the residential house; and (5) Costs throughout.
( 1 ) THIS second appeal had been heard by me at an earlier stage and I had referred the following question for consideration by a larger Bench, for the reasons contained in my order dated 27th september, 1979, namely -QUESTION
"whether the marriage between the plaintiff and Suresh Ghandra could be adjudged null and void in the present suit, although it had not been declared to be so by a decree of nullity, on a petition presented by either party thereto against the other, under Section 11 of the Hindu marriage Act, 1955. on the ground that Suresh Chandra had a wife living in the person of chandra Kala when the marriage between the parties in question was solemnised in the year 1958, after the coming into force of the Act, tor contravening the rule of monogamy prescribed by Section 5 (i) thereof,"
( 2 ) THE Honble the Chief Justice did not, however, consider the case to be a fit one to need the attention of a Division Bench and has referred the matter back to me for being disposed of in accordance with law, by his order dated 24th September, 1980.
( 3 ) IN my referring order dated the 27th September, 1979, I had expressed the view that on the facts and in the cir cumstances of the case, the marriage in question cannot be adjudged to be null and void in the present suit, that it was a fact which subsisted without any objec tion; and that one must proceed on the assumption that the plaintiff-respondent was the wile of Suresh chandra deceased, and his widow after his death, for all purposes.
( 4 ) HAVING heard Mr. B. B. Paul, learned counsel for the defendant-appellant. once over again in support of his contention to the contrary, I still hold the same view, I need not repeat the facts of the case or the reasons given by me in the said referring order which shall be deemed to form part of this judgment along with the order of the Honble the Chief Justice. I must, however, take note of certain cases which were cited before me at the rehearing, before proceeding on to decide the appeal on the merits in the light of my view on the aforesaid question.
( 5 ) OF the first case cited by Mr. Paul namely: Bajirao Raghoba Tambare v. Tolanbai Bhagwan tonga, 1979 Mah LJ 693 : (1980 Cri LJ 473) a full report was not made available to me. Only the following Note contained in the Yearly Digest, April, 1980, Column 715, was placed before me :--
"a marriage in contravention of Section 5 (i ). Hindu Marriage. Act, is null and void and it cannot create a legal status of husband and wife between the parties, though the necessary ceremonies may have been gone through. Though Section 11 gives a right to the parties to file a petition for a decree declaring the marriage a nullity, the filing of such a petition is not a condition precedent for putting an end to the marriage. What ultimately is declared on such a petition is nothing but the status of the party, as on the date of marriage and, therefore, the marriage does not continue to remain valid until, a decree is passed. What, is null and void cannot be deemed to be in existence for any purpose whatsoever. If, therefore, a marriage is solemnised in contravention of Section 5 (i), the woman cannot get the status of a wife, nor can the male get the status of husband qua her. For a valid marriage which alone can confer the status of wife, not only the ceremonies under the personal law must be gone through, but the marriage must conform to the statutory requirements of Ss. 5 and 11, Hindu Marriage Act, in the case of Hindus. A clear distinction is made between void and voidable marriages. While Section 11 contemplates void marriage, Section 13 postulates marriages that are voidable. "
( 6 ) I have in the referring order dated 27th September. 1979, already noticed the distinction between Sections 11 and 12 of the Hindu Marriage Act. The distinction between the two classes of marriages, those declared null and void by Section 11 and those declared voidable by Section 12, is very much there. W
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