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PETITIONER: MAHARANI KUSUMKUMARI AND ANR.

       Vs.

RESPONDENT: SMT. KUSUMKUMARI JADEJA AND ANR.

DATE OF JUDGMENT01/02/1991

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) PUNCHHI, M.M.

CITATION:  1991 SCR  (1) 193        1991 SCC  (1) 582  JT 1991 (1)   278        1991 SCALE  (1)103

ACT:      Hindu Marriage Act, 1955: Section II-Petition to declare marriage  a  nullity-Whether   maintainable  after  death  of petitioner’s spouse.      Practice  and Procedure:  Proceedings involving  issues relating to marital status-Question dependent upon nature  of action  and  the law governing the  same-Provisions  of  the relevant statute very material.

HEADNOTE:      The appellant No.1 -Maharani was married to a  Maharaja in  1960  and the daughter-appellant no.2 was  born  of  the wedlock  in 1964.  The relationship between the husband  and the  wife thereafter ceased to be cordial and  the  appellant started living in Bombay and the Maharaja within his  estate in Madhya Pradesh.      It is the case of the respondent No.1 that the Maharaja decided  to  remarry  without legally  separating  from  the appellant.   The  respondent  who  is  a  relation  of   the Maharaja’s  mother, respondent No.2,was misled both  by  the Maharaja and his mother, respondent No.2 was misled both  by the  Maharaja  and his mother in believing  that  the  first marriage  of the Maharaja had been dissolved and under  that belief she married the Maharaja had been dissolved and under that belief she married the Maharaja and several issues were born of this wedlock.      In  1974  when the Maharaja died,  on  application  for grant  of  Letters  of  Administration  was  filed  by   the appellant-Maharani,  and  the respondent  No.1  applied  for probate  on  the basis of an alleged will.   This  will  was denied  by  the  appellants.  These  proceedings  are  still pending.      Respondent  No.1 filed an application under Section  11 of the Hindu Marriage Act, 1955  for declaring her  marriage as  nullity, and the Maharaja’s mother was impleaded as  the sole   respondent.   The  appellants  intervened  and   were impleaded as parties.      The  maintainability of the aforesaid  application  was challenged by the appellants on the ground that the marriage could not be declared                                                        194 a  nullity   after the death of the Maharaja  but  both  the

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trial court and the High Court have rejected this plea.      In  the  appeal  to this  Court  it  was  contended  on behalf  of  the appellants that having  regard to  the  very special  relationship  between husband and  wife,a  marriage cannot be dissolved  or declared to be a nullity unless both of them are parties thereto.  The martial status of a person sands on a much higher footing than other positions one  may hold  in the society and cannot be allowed to be  challenged lightly,and that the marriage of a person, therefore, cannot be declared as nullity after his death when he does no  have an  opportunity  to contest.  Reliance was placed  upon  the language of Section 11 of the Hindu Marriage Act.      On  behalf of the respondent, it was pointed  out  that having  regard  to the language of Section 16 of  the  Hindu Marriage Act as it it stood before its amendment in  1976,he children born of the respondent would not have been entitled to  the  benefit  of  the section in  absence  of  a  decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation      On the question: whether a petition under Section 11 of the  Hindu Marriage Act, 1955 for declaring the marriage  of the  petitioner as a nullity is maintainable after the  death of the petitioner’s spouse.      Dismissing  the appeal, this Court,      HELD:  1 .An application under Section11 of  the  Hindu Marriage Act,   1955  before  its  amendment  in  1976,   was maintainable at the instance of a party to the marriage  even after the death of the other spouse.[201B].      2.  In the instant case, the proceeding was started  in 1974  that  is, before the amendment was made in  the  Hindu Marriage  Act,1955.  Section II did not  contain  the  words "against  the  other  party".  At that  time  all  that  was required  was  that the application had  to be  filed  by  a party  to  the  marriage  under  challenge.   On  the  plain language  of  the section as it stood then,it could  not  be claimed  that in absence of the other spouse as a  party  to the proceedings, the   same would not be maintainable.[197F]      3.Under  the general law a child for  being  legitimate has to be                                                        195 born  in  lawful  wedlock and if the  marriage  is  void  or declared to be so by the Court, it will necessarily have the effect ofbastardising the  child born of the parties to such a marriage.[199F]      4. By enacting Section 5(i) of the Hindu Marriage  Act, 1955  the legislature abolished polygamy, which  had  always remained  permissible and prevalent among the Hindus in  the past.   The  Act  was  bringing  about  a  very  significant departure  in  this regard;  and  taking  into  account  the possibility  of  violation of the law in numerous  cases  at least for sometime to come special provisions were  included under  Section 16 of the Act with the object  of  protecting the legitimacy of the children.[199G]      5.  The benefit of Section 16 was confined to only such cases where a decree of nullity was granted under Section 11 or  section 12. It did not extend to other cases.   in  1976 section  11 was amended by inserting the words "against  the otherparty"   and  alongwith  the  same  section    16   was amended.[200D]      6. By the amendment in section 11, in so far the  cases where marriage can be declared as nullity, the   application of  the rule protectingthe legitimacy was widened.  If  that had notbeen,the  children born of such marriages would  have been deprived of the advantage on the death of either of the

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parents.  By the simultaneous amendment of the two  sections it can safely be deducted that the  Parliament did not  hold identical  views  as  expressed by  the  law  Commission  in its59th Report.[200F-G]      7. The intention of the legislature in enacting section 16      was to protect the legitimacy of  the  children  who would  have been legitimate if the Act had not  been  passed in 1955.[200H]      8.   There  is no reason to interpret section 11  in  a manner  which would narrow down its field.  With respect  to the  nature of the proceedings, what the court has to do  in an  application under section 11 is not to bring  about  any change  in the marital status of the parties.  The  effectof granting a decree of nullity is to discover the flow in  the marriage at the time of its performance and  accordingly  to grant a decree declaring it tobe void. [201A-B]      Butterfield v. Butterfield; I.L.R.(Vol.50) Calcutta 153 and  Stanhope  v.  Stanhope, [1886] 11  P.D.  103,  and  Law Commission  of  India   59th Report  Chapter  6,  para  6.1A referred to.                                                        196      9.It   is not correct to suggest that one uniform  rule shall   apply  for  deciding  the  maintainability  of   all proceedings  involving  issues relating to  marital  status. The  question will be dependent upon on the  nature  of  the action  and law governing the same.  The provisions  of  the relevant  statue  relating  to  a  question   will  be  very material.[198H-199A]      Rayden  and Jackson’s Law and Practice in  Divorce  and Family Matters, (15th Edn.). p.650, referred to.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No.2215  of 1977.      From  the  Judgement and Order dated  237 1976  of  the Madhya Pradesh High Court in Misc. Appeal No.23 of 1976.      T.U.Metha,  S.K.  Gambhir, Vivek Gambhir  and  Surinder Karnail for the Appellants.      Uday U. Lalit and A.G.Ratnaparkhi for the Respondents.      The Judgement of the Courtwas delivered by      SHAREMA,J,.The question for decision in this appeal  by special leave is whether a petition under s.11 of the  Hindu Marriage  Act,  1955,  for declaring  the  marriage  of  the petitioner   as nullity is maintainable after the  death  of the petitioners’ spouse.      2. The appellent no. 1, hereinafter referred to as  the Maharani, was marriedto Maharaja Rameshwarsighji in1960  and a  daughter, the appellant no.2, was born of the wedlock  in 1964.   The relationship between the husband and   the  wife thereafter ceased  to be cordial and the appellants  started living  in  Bombay  and the Maharaja within  his  estate  in Madhya  Pradesh.   According to the case of  the  respondent no.1  the  Maharaja  decided  to  remarry  without   legally separating from the appellant  Maharani. The respondent  who is a relation of the Maharaj’s mother, respondent No.2,  was misled both by theMaharaja and his mother in believing  that the  first marriage of the Maharaja had been  dissolved  and under  the belief she married the Maharaja and the    couple got  several  issues.  In 1974 when the Maharaja   died,  an application for grant of Letters of Administration was filed by  the  appellant Maharani and the respondent  applied  for probate  on the basis of an alleged will which is denied  by the appellant.  The proceedings are still pending.  In  this

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background the respondent                                                        197 no. 1 filed the present application under s. 11 of the Hindu Marriage  Act  for declaring her marriage as  nullity.   The Maharaja’s  mother  was impleaded as  the  sole  respondent. When  the appellants learnt about the case, they  intervened and were joined as parties.      3. The appellants challenged the maintainability of the application  on  the ground that the marriage could  not  be declared nullity after the death of the Maharaja.  Both  the trial court and the High Court have rejected the appellants’ plea.      4.  mr. Mehta, the learned counsel for the  appellants, has  contended  that  having  regard  to  the  very  special relationship  between  husband and wife, a  marriage  cannot dissolved  or declared to be a nullity unless both  of  them are parties thereto.  The marital status of a person  stands on a much higher  footing than other positions one may  hold in  the society or may have in relation to a  property;  and cannot  be allowed to  be challenged lightly.  The  marriage of  a  person, therefore, cannot  be declared as  a  nullity after  his  death when he does not have an  opportunity   to contest.  He relied upon the language  of s.11.   After  its amendment in 1976 the section read this:             "11.  Void marriages:- Any marriage solemnized          after the commencement  of this Act  shall be  null          and  void  and  may , on a  petition  presented  by          either  party  thereto against the other party,  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."                                             (emphasis added)      5. The present proceeding was started in 1974, that is, before  the amendment, and the section did not  contain  the words which have been underlined by us above.  At that  time all  that  was required was that the application had  to  be filed  by a party to the marriage under challenge.   On  the plain language of the section as it stood then, it could not be  claimed that in absence of the other spouse  as a  party to the proceeding, the same would not be maintainable.   The argument  of  Mr.  Mehta is that the section  had  the  same meaning  before and after the amendment and the addition  of the  words in 1976 was merely clarificatory in  nature.   He strongly   relied   upon  the  69th  Report   of   the   Law Commission..      6.  The  Report recommended several amendments  in  the Hindu Marriage Act which led to the passing of the  Amending Act of 1976.                                                        198 Reliance  was placed on paragraph 6.1A of Chapter 6  of  the Report  which  referred  to the divergent   views  taken  by the  High  Courts of Punjab and Madras  on the  question  of maintainability of a petition under s.11 after the death  of the  other  spouse.  The  Commission,  thereafter,  observed thus:           "We  ought, however, to point out that in such a  case,          the  proper  remedy is a suit  under  the  Specific          Relief  Act.   A petition under section 11  of  the          Hindu  Marriage Act cannot be appropriate,  because          the other spouse is an essential party  to any such          petition.    This   should  be  clarified   by   an          amendment." It  has been argued  before us that the view of  the  Madras High  Court referred to in the Report  is the  correct  view which  was accepted by the Law Commission, and  since  there

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was  scope for controversy on the language of  the  section, the  legislature agreeing with the Law Commission added  the aforementioned additional words by way of clarification.  It is  urged  that such interpretation of the section  did  not lead  to  any  injustice   inasmuch as a  suit  for  such  a declaration  was  and is maintainable in  the  civil  court. Reliance  has also been placed on "Rayden and Jackson’s  Law and  Practice in Divorce and Family matters."  (15th  Edn.), and several English cases in support of the proposition that on the death of a party to a matrimonial action the cause of action  does  not service.  Reference has been made  to  the case of Butterfield v. Butterfield, I.L.R. (Vol.50) Calcutta 153,  where  after the wife had obtained a decree  nisi  for dissolution  of  her marriage the husband  died.   Following the English case of Stanhope v. Stanhope,[1886] 11  P.D.103, it was held that the decree could not be  confirmed.      7. The learned  counsel for the respondent relied  upon certain  observation  made in other High  Courts’  judgments supporting his stand.  He pointed out that having regard  to the  language  of s. 16, as it stood before  the  amendment, the  children  born of the respondent would  not  have  been entitled  to the benefit of the section in the absence of  a decree declaring the  marriage of their parents as  nullity, and this was precisely the reason that the respondent had to commence the present litigation.      8. We have considered the argument of Mr. Mehta closely but  do not find ourselves in a position to agree with  him. It  is  not correct to suggest that one uniform  rule  shall apply  for deciding the maintainability of  all  proceedings involving issues relating to marital status.  The                                                        199 question will be dependent upon the nature of the action and law  governing  the same.  The provisions  of  the  relevant statute  relating to a proceeding in question will  be  very material.  This aspect has been taken note of by Rayden  and Jackson also in their book which has been relied upon by Mr. Mehta.   The passage at page 650 summarises the position  in the following words:                   "Death of a party: effect on suit. In many          cases the fact of the death  of one of the  parties          will  render the process meaningless by  reason  of          the circumstances that a marriage brought to an end          by death could no longer be dissolved by an Act  of          the  court.   But there is no  general  rule  that,          where  one  of the parties to a  divorce  suit  has          died,   the  suit  abates,  so  that   no   further          proceedings  can be taken in it.  It has been  said          that it is unhelpful to refer to abatement at  all.          The  real question in such cases is whether,  where          one  of  the parties to a divorce  suit  has  died,          further  proceedings in the suit can or  cannot  be          taken.   The  answer  to  that  question,  when  it          arises, depends in all cases on two matters and  in          some  cases also on a third.  The first  matter  is          the nature of the further proceedings sought to  be          taken.  The second matter is the true  construction          of the relevant  statutory provision or provisions,          or of a particular order made under them, or  both.          The third matter is the applicability of section  I          (I)  of the Law Reforms (Miscellaneous  Provisions)          Act 1934."      9.  The dispute issue in the present appeal has  to  be answered  by considering the nature of the  proceedings  and the  true  construction of the relevant  provisions  of  the Hindu Marriage Act.  Under the general law a child for being

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legitimate  has  to be born in lawful wedlock,  and  if  the marriage is void or declared to be so  by the court, it will necessarily  have the effect of bastardising the child  born of  the parties to such a marriage.  By enacting s. 5(i)  of the  Act,  the  legislature abolished  polygamy,  which  had always remained permissible and prevalent  among the  Hindus in the past.  The Act was bringing about a very  significant departure  in  this  regard; and  taking  into  account  the possibility  of  violation  of the  law  in  numerous  cases atleast  for  sometime  to  come  special  provisions   were included under s.16 of the Act with the object of protecting the legitimacy of the children.  The original section before the amendment of 1976 read as follows:             "16.  Where  a decree of nullity is  granted  in          respect                                                        200          of any marriage under section 11 or section 12, any          child  begotten or conceived before the  decree  is          made  who  would have been the legitimate child  of          the  parties  to  the  marriage  if  it  had   been          dissolved instead of having been declared null  and          void  or annulled by a decree of nullity  shall  be          deemed to be their legitimate child notwithstanding          the decree of nullity.             Provided that  nothing contained in this section          shall be construed as conferring upon any child  of          a marriage which is declared null and void annulled          by  a  decree of nullity any rights in  or  to  the          property  of any person other than the  parents  in          any  case where,  but for the passing of this  Act,          such child would have been incapable of  possession          of acquiring any  such rights by reason of his  not          being the legitimate child of his parents." It will be seen that the benefit of the section was confined to  only  such cases where a decree of nullity  was  granted under s. 11 or s.12.  it did not extend to other cases.   In 1976  s.11 was amended by inserting the words  "against  the other party", and along with the same s.16 was amended as it read now. the following words in s. 16(i).          "...and  whether  or  not a decree  of  nullity  is          granted in respect of that marriage under this  Act          and whether or not the marriage is held to be  void          otherwise than on a petition under this Act." enlarged  the applicability of the beneficial provisions, so as  not  to  deny the same to children  who  are  placed  in circumstances  similar to those of the  present  respondent. By the amendment in s.11, in so far the cases where marriage can  be declared  as nullity, the application  of  the  rule protecting the legitimacy was widened.  If that had not been done,  the  children born of such marriage would  have  been deprived  of  the advantage on the death of  either  of  the parents.  By the simultaneous amendment of the two  sections it  can safely be deduced that the Parliament did  not  hold identical  views  as  expressed   by  the  Law  Commission’s Report.      10.  Even  if  it be assumed that the  meaning  of  the section was not free from ambiguity, the rule of  beneficial construction  is  called for in ascertaining  its   meaning. The  intention  of the legislature in enacting s.16  was  to protect the legitimacy  of the children who would have been                                                        201 legitimate if the Act had not been passed in 1955.  There is no  reason to interpret s.11 in a manner which would  narrow down  its  field.   With  respect  to  the  nature  of   the proceeding, what the court has to do in an application under

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s.11 is not bring about any change in the marital status  of the parties.  The effect of granting a decree of nullity  is to  discover  the flaw in the marriage at the  time  of  its performance and accordingly to grant a decree declaring   it to  be void.  we, therefore, hold that an application  under s.11  before its amendment in 1976, was maintainable at  the instance of a party to the marriage even after the death  of the  other  spouse.  Accordingly, this appeal  is  dismissed with costs. N.V.K.                                      Appeal dismissed                                                        202