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BOMBAY HIGH COURT
Mridula Bhatkar, J.
Indubai Jaydeo Pawar and Anr. —Petitioners
versus
Draupada @ Draupadi Jaydeo Pawar and Ors. —Respondents
Review Petition No.19 of 2016 in First Appeal No.577 of 2015
Decided on 7.6.2017
Void/Voidable Marriage Discussed. -Para 19.
‘Marriage’-Meaning of :- Neither the word ‘wife’ nor ‘marriage’ are defined in Hindu Marriage Act or Hindu Succession Act or also under Section 125 of the Code of Criminal Procedure Code. The word ‘Solemnization’ is also not defined but it recognizes and means “a performance” according to the respective customary and religious rites and rituals. The age old institution of marriage in India has many shades depending on the different Colours of religion, caste and custom. Since the beginning of civilization, a union of a male and a female is celebrated after performing customary rituals resulting in social and legal sanctity. In Hindu Dharma Shastra, Rakshasa vivaha and Gandharva Vivaha were also included in eight forms of marriages. If we refer Black’s Law Dictionary to understand the word ‘marriage, we get different meanings and interpretation and forms of the word hidden in multiple social layers. For example, a clandestine marriage, consensual marriage, cross marriage, green card marriage, a runaway marriage, limited purpose marriage, marriage of convenience, marriage of conscience, morganatic marriage, putative marriage, scotch marriage, etc,. Thus, if we study the social history of mankind, then we realize that marriage has no exact or static form. Marriage and family institution is a cream of the civilization and backbone of the culture of any nation or community and therefore, to regulate the social order, restrictive meaning is given under the law. The word ‘marriage’ is required to be understood in common parlance on the backdrop of requirements under law. Though the marriage is not defined under the Hindu Marriage Act, void or voidable marriage is defined under Section 5, 11, and 12 of the Act. Thus, broadly, either customary solemnization of marriage is required or performance of legal formality is a condition precedent to label that relationship as a marriage. For example, a one night consensual affair cannot be called a marriage. Merely having a physical relationship between man and a women also cannot be called as a marriage. Any physical intimacy/sexual intercourse which took place by choice or by chance or by accident is not a marriage. Thus, though physical relationship is a vital part of the marriage, it is still something more than that. Basically, what is required to call such relationship as a marriage is firstly the intension and desire of the parties to marry and to give status to each other as a husband and wife. The manifestation of such desire is through performance of certain religious rites or legal formalities. There is legal, social or customary requirement of solemnization between the parties. The duration of marital status also is one of the determining factors to render them a status of a married couple. -Para 19.
Marriage Defined in the Protection of Women from Domestic Violence Act, 2005:- Under Sub Section (f) of Section 2 of the Act, in the definition clause, while defining the Domestic relationship, the Legislature has used the terminology that through a “relationship in nature of marriage”. Significantly, no such change is made in other acts like Hindu Marriage Act or Succession Act where the proprietary rights of illegitimate children are involved. Section 16 of the Act, the word “marriage” is specifically used, so, I do not find any reason to adopt a definition of Domestic relationship for defining the word Marriage under Section 16 of the Act. As no amendment is made, no other meaning can be given to the word marriage under Section 16 of the Act. On a careful reading of Section 16, I am of the view that, the marriage is a condition precedent to decide the legitimacy of a child. In other words, the benefit of Section 16 of the Act is available to an illegitimate child who is born to parents who have undergone the rituals/formalities of performance of marriage, may be void or voidable. Para 20
The court primarily addressed the legal question of whether a child born out of a relationship that is considered a void or voidable marriage under the Hindu Marriage Act is entitled to legitimacy and rights in the deceased father's property and benefits, such as pension.
The court clarified that under the Hindu Marriage Act, a marriage that contravenes the conditions specified in the Act, such as those in clauses (i), (iv), and (v) of Section 5, is deemed null and void either ipso jure or through a decree of nullity. However, even in cases where the marriage is void or voidable, if a child is born during or in the context of such a relationship, that child is recognized as legitimate under Section 16 of the Hindu Marriage Act, provided there is evidence of a marriage or a relationship in the nature of marriage.
Furthermore, the court emphasized that the benefit of legitimacy under Section 16 is contingent upon the existence of a valid or void marriage, or a relationship in the nature of marriage, in which the child was born. It clarified that a mere physical relationship without a valid or void marriage does not confer legitimacy or related rights to the child.
In addition, the court discussed the importance of the intent and social recognition of the relationship, the performance of customary or religious rites, and the legal formalities to establish marriage. It also noted that even if a marriage is declared void, the child born from such a relationship may still be entitled to rights in the father's property, including proprietary rights, if the relationship is recognized as a marriage or in the nature of marriage.
In summary, the court decided that a child born in a relationship that is recognized as a marriage—whether valid, void, or voidable—may be entitled to legitimacy and rights in property and benefits, provided there is sufficient evidence of the relationship being in the nature of marriage. The court upheld that the legal concept of marriage and legitimacy is dependent on the social, customary, and legal formalities, and not solely on the formal declaration of a marriage as valid or void.
Mridula Bhatkar, J.—The judgment and order dated 10.2.2016 passed in First Appeal No.577 of 2015 is the subject matter of this review petition. The petitioner is the second wife of late Jaydeo Pawar and both the wives claimed pension amount of Jaydeo Pawar after his death. Both the wives alongwith their respective children claimed property. Jaydeo Pawar died on 10.7.2003. during the pendency of the suit, his first wife Draupada died on 14.2.2006 so her children being the legal representatives of Jaydeo Pawar and Draupada, contested the matter. The appeal filed by the respondent Draupada was allowed. It is held that the first wife has a right in the property and the second wife i.e., Indubai, cannot have any right to receive the family pension. The petitioner aggrieved by the said order challenged the said order before the hon’ble supreme Court and the hon’ble Supreme Court in Special Leave to Appeal No.6966 of 2016 by order dated 18.3.2016 passed an order as follows:
“After arguing for sometime, the learned counsel for the petitioners submitted that even assuming that the petitioner No.1 is not entitled to the family pension, since the marriage is void even then the child born in that marriage will be entitled to succeed to the property of his father. It is not clear whether the petitioners had taken this issue before the High Court. We feel it will be appropriate to take up this issue before the High Court by way of review, so that the respondents need not be unnecessarily called to this court, in a family pension case.
The Special Leave Petition is disposed of permitting the petitioners to file a review application before the High Court. If it is filed within thirty days, the same will be considered on merits.”
2. Inter alia, the review petition was filed.
3. The learned Counsel for the petitioner has submitted that while passing the order, certain facts are not taken into account proving the validity of the marriage on 22.6.1981 of Indubai and Jaydeo. He submitted that if the age of Draupada and her date of marriage are valid then it shows that Draupada was 11 years old and it itself nullifies the claim of Draupada that she got married first with Jaydeo. He further submitted that the evidence of Gram Sevak that the third entry in the marriage register of Draupada and Jaydeo was made subsequently is not considered. He further submitted that under the Right to Information Act, after the first appeal, legal heir of Indubai i.e., Shubhangi, contacted the printing press where the wedding cards of Draupada and Jaydeo allegedly published in the year 1979. However, the press itself came into existence in the year 1991, so the wedding card is fabricated. He submitted that this evidence is required to be considered. He further argued that under section 16 of the Hindu Marriage Act, Shubhangi, the daughter of Indubai, has right in the property of her father even though the claim of Indubai is rejected on the ground of void marriage. He produced a birth certificate of Shubhangi dated 22.9.1987. He also relied on the order of maintainance dated 12.4.1994 which was granted by the learned JMFC, Vita, District Sangli in Criminal Miscellaneous Application No.225 of 1989 passed under section 125 of the Code of Criminal Procedure. He also relied on a purshis filed by Indubai earlier in the maintainance proceedings seeking permission to withdraw the matter as Indubai again started residing with Jaydeo and the said purshis was allowed on 28.5.1985.
4. Mr.Kothari, the learned Counsel, opposed this review petition. He submitted that this petition is not maintainable. The order of this Court in respect of second marriage is upheld by the hon’ble Supreme Court and hence, that finding cannot be disturbed. He further submitted that the documents which are produced today, could have been obtained by the petitioner with due diligence at the time of trial. However, these documents were not produced during the trial and therefore, cannot be cons
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